Although organisations can discriminate by applying a “genuine, legitimate and justified occupational requirement”, the Court of Justice of the European Union (CJEU) has held in Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV that this right is subject to judicial review by the national court. In that event, employers would have to prove that the requirement was necessary and “objectively dictated”.
Basic facts
Ms Egenberger applied for a fixed-term post with Evangelisches Werk, part of the German Protestant church, which involved producing a parallel report on the UN International Convention on the Elimination of All Forms of Racial Discrimination.
The advert specified that applicants should belong to a Protestant church or a church belonging to the Working Group of Christian Churches in Germany. Ms Egenberger, who did not adhere to any particular faith, was shortlisted after a preliminary selection, but was not invited to interview. She sued for discrimination on the ground of religion, seeking compensation of nearly €10,000.
Relevant law
Clause 4(2) of the Equal Treatment Directive allows churches (or other organisations with an ethos based on religion or belief) to discriminate where the person’s religion or belief is a genuine, legitimate and justified occupational requirement for the job in question. This had been interpreted in German law as meaning that the churches themselves should be able to decide when the requirement applied.
Decision of lower courts
The local labour court agreed that she had been the victim of discrimination, but limited the compensation to just under €2,000.
The Federal Labour Court asked the CJEU to decide whether clause 4(2) should be interpreted as meaning that Evangelisches Werk (or the church movement more broadly) should be allowed to decide whether the requirement to be a member of the church was genuine and legitimate, a decision that had, up until now, only been subject to a plausibility review by the courts.
Decision of CJEU
The Court held that the right of churches and other ethical organisations to recruit workers with the same ethos had to be balanced against those of workers not to be discriminated against on grounds of religion or belief.
In the event that a worker brought a claim, the church or religious organisation would have to be able to show to a national court “the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned”.
Consequently national courts would have to decide in those circumstances whether the requirement was necessary and “objectively dictated” having regard to the ethos of the organisation in question; whether it was connected to the ethos or autonomy of the organisation concerned; and if it was not imposed, whether it would very likely cause substantial harm to that ethos. In addition, the requirement must comply with the principle of proportionality. In other words, it had to be appropriate and not go beyond what was necessary for attaining the objective.
Finally the Court held that where national law is not in conformity with EU law, a national court hearing a dispute between two individuals has to disapply the national law.