Ronan McCrea, Professor of Constitutional and European Law at University College London

Despite coming into effect in 2003, the Framework Directive on Discrimination in Employment’s impact on religion-related matters remained unclear for 14 years until a series of landmark decisions by the Court of Justice. These rulings have clarified the EU’s stance on religious expression in the workplace.

It is now established that a consistently applied workplace neutrality policy prohibiting religious symbols is considered indirectly, not directly, discriminatory (the Achbita case). Additionally, the Court narrowly interprets acceptable justifications for direct religious discrimination based on “genuine and determining occupational requirements” (the Bougnaoui and Egenberger cases). Further, the Court mandates a proportionality test for religious employers seeking to restrict roles based on faith to protect their ethos (the Egenberger case).

The recent judgment in IR v JQ addressed a novel issue concerning the loyalty obligation imposed by religious employers on employees who share their faith.

This case involved JQ, a Roman Catholic and head of internal medicine at a Catholic hospital run by IR, a Catholic organization. Following his remarriage to a new partner in a civil ceremony after divorcing his first wife, JQ was dismissed from his position in 2009.

IR argued that JQ’s dismissal was justified due to his breach of contract, which stipulated a duty of loyalty to the Catholic Church’s ethos. JQ countered that his dismissal was discriminatory, claiming a non-Catholic employee would not have faced termination for remarriage.

This case centered around Article 4(2) of the Directive, which permits exemptions from non-discrimination rules for religious organizations, and its compatibility with German law, which grants religious institutions significant leeway in defining and enforcing employee loyalty obligations.

German law, influenced by the constitutional right to religious self-determination, allows religious institutions to define the scope of “good faith” and “loyalty” in alignment with their faith-based interpretation, subject only to plausibility review by courts.

The German court system grappled with the case of JQ and IR, with the final referral to the Court of Justice questioning the compatibility of German law’s broad discretion for religious employers with Article 4(2). Specifically, the German court inquired whether religious employers could impose stricter loyalty standards on employees of the same faith.

The Court determined that German law provided excessive leeway to religious employers, echoing a similar finding in the Egenberger case, where a Protestant foundation discriminated against a non-religious job applicant.

In Egenberger, the Court ruled that religious employers must demonstrate proportionality when discriminating based on religion, proving that such discrimination is essential for upholding the organization’s religious ethos and autonomy.

Furthermore, Egenberger emphasized that employees alleging discrimination have the right to challenge its justification before an independent court. This ruling countered the German approach of allowing religious institutions to define acceptable justification.

JQ v IR sought to determine if the principles established in Egenberger concerning general religious discrimination also extended to loyalty obligations. The Court confirmed that the same principles apply, mandating a proportionality test and independent judicial review when employees face less favorable treatment due to their religion, including the imposition of stricter loyalty requirements.

The Court stated that Article 4(2)’s provision for employers to demand loyalty to the organization’s ethos is contingent upon compliance with other Directive provisions. This ruling underscores that an employer’s self-perception cannot solely determine the legality of differential treatment. Instead, it hinges on “an objectively verifiable link” between the job requirements and the organization’s activities.

The Court also reiterated its Egenberger ruling, emphasizing that any differences in treatment must be genuine, legitimate, and justified. This includes demonstrating the necessity of adhering to the organization’s religion or belief and ensuring that the requirement is not used for purposes unrelated to the organization’s ethos or autonomy.

Importantly, the Court highlighted that imposing a higher duty of loyalty on Catholic employees is justifiable only if religion or belief is “a genuine, legitimate and justified occupational requirement” considering the nature and context of the job.

While acknowledging the national court’s role in making the final determination, the Court strongly suggested that JQ’s role as a medical professional did not appear to necessitate adherence to the Catholic definition of marriage for the promotion of IR’s ethos. This observation stemmed from the nature of JQ’s work, which involved providing medical care within a hospital setting.

The Court also noted that other individuals in similar managerial positions within IR who were not Catholic did not face the same loyalty requirements.

Furthermore, the Court reaffirmed its position from Egenberger that the Lisbon Treaty’s Article 17, which acknowledges the Union’s respect for the status of religious bodies under national law, does not grant blanket immunity from EU law. Instead, it signifies the EU’s neutrality towards the diverse relationships between Member States and religious organizations.

Implementing the Ruling: Indirect Effect and Mangold Principles

The national court also sought guidance on implementing the Court’s interpretation of the Directive, particularly because the dispute involved private parties. The Court reminded the national court that its obligation to ensure consistent interpretation includes adapting existing national case law.

Significantly, the Court asserted that even if aligning German law with the Directive proved impossible, the national court could still uphold the Directive by disapplying conflicting national law. The Court based this assertion on the controversial line of cases originating from the Mangold ruling, which posits that Directive 2000/78 merely codifies a pre-existing EU legal obligation to uphold equal treatment, independent of national implementation measures.

Significance

The Court of Justice’s recent rulings on religion-related aspects of Directive 2000/78 provide clarity regarding the EU’s approach to the intersection of religion and law.

Firstly, the Court’s commitment to a proportionality-based approach, balancing competing rights, is evident. This means religious employers have varying degrees of autonomy based on the proximity of a role to core religious functions. The rulings also emphasize that any discriminatory actions must be subject to meaningful judicial review, preventing religious institutions from unilaterally dictating the extent of their exemption from anti-discrimination laws.

The Court’s emphasis on proportionality contrasts with the US Supreme Court’s “ministerial exemption,” which grants religious institutions broad autonomy over employment decisions in roles with religious elements. It also differs from the European Court of Human Rights’ more deferential approach, as seen in cases like Fernández-Martínez v Spain, where limited review was applied to a teacher’s dismissal based solely on a bishop’s decision.

Secondly, the Court demonstrates a clear intention to limit its acceptance of potentially discriminatory policies based on religion to situations with consistent application. This principle is evident in the emphasis on consistently applied neutrality policies in Achbita and Bougnaoui. Similarly, JQ v IR highlights the Court’s disapproval of inconsistently applied loyalty obligations. This approach underscores the commitment to treating religious and non-religious beliefs equally, a distinctive feature of EU law.

Thirdly, the Court interprets the Treaty’s Article 17, which calls for respecting the status of religious bodies under national law, not as a carte blanche exemption from EU law but as a testament to the EU’s neutral stance regarding different Member State approaches to religious organizations.

Finally, these cases underscore the Court’s commitment to the principle established in Mangold, viewing Directive 2000/78 as an articulation of a pre-existing general principle of non-discrimination within EU law.

Barnard and Peers: chapter 9, chapter 20

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