In the conclusions submitted on Thursday 9 November (C-414/16), the Advocate General, Evengi Tanchev, argues that the occupational requirements set by religious organisations are subject to judicial review with respect to alleged unlawful discrimination on the basis of belief.
Ms Egenberger lodged a claim with the German Labour Courts for payment of damages of around €10,000 with interest. She contends that she was dismissed from a fixed term contract at the Evangelisches Werk für Diakonie und Entwicklung, an auxiliary organisation of the Protestant Church in Germany, because she does not belong to any religious community, although the advertisement required membership of a Protestant church or of a church which is a member of the Cooperative of Christian Churches in Germany.
The job entailed preparing a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The job also included the public and professional representation of her employers and coordination of the process of forming opinions within that organisation.
The German court called on the European Court of Justice to clarify the extent to which occupational requirements of religious organisations invoking the ecclesiastical privilege of self-determination may be judicially reviewed. It also seeks guidance as to how the competing interests at stake are to be balanced, namely freedom of belief and the right not to be discriminated against on the basis of religion or belief, on the one hand, and the right to self- determination and autonomy of religious organisations on the other hand.
In her conclusions, the Advocate General points out that the directive (2000/78) central to the resolution of the dispute (contains a special rule that was developed to deal with the specific situation of the circumstances in which religious organisations can lawfully engage in unequal treatment on the basis of belief).
First, Advocate General Tanchev considers that an employer, such as a religious organisation, may not itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities in question or of the context in which they are carried out, constitutes a “genuine, legitimate and justified” occupational requirement, having regard to the employer/church’s ethos.
This appreciation incumbent on an appropriate jurisdiction which, in order to do this, must take into account several different factors such as: the right of religious organisations to self-determination and autonomy; member states do not have an unlimited margin of appreciation; the appropriate character of the professional requirements formulated with the autonomy of the religious organisation; proximity of the activities in question to the proclamatory mission of the religious organisation; balance between the legitimate objective of banning discrimination based on religion with the right of religious organisations to autonomy. The directive does not distinguish between recruitment and dismissal.
Although the German Court concludes that German law cannot be interpreted on the basis of compliance with the ban on discrimination based on religious convictions, the Advocate General argues that Ms Egenberger would be able to appeal against the German state for the damages that this has caused her. (Original version in French by Mathieu Bion)