In Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV  EUECJ C-414/16, the Grand Chamber of the CJEU has reaffirmed that, in cases where religion or belief organisations impose a Genuine Occupational Requirement when recruiting staff, that requirement must be both genuine, legitimate and justifiable.
In November, we reported Advocate General Tanchev’s Opinion in the case of Ms Vera Egenberger. She had applied for a job advertised by the Evangelisches Werk für Diakonie und Entwicklung [EWDE], an auxiliary organisation of the Evangelische Kirche in Deutschland [EKD], a private law institution pursuing exclusively charitable, benevolent and religious purposes. The successful applicant was to prepare a report on Germany’s compliance with the UN International Convention on the Elimination of All Forms of Racial Discrimination. The duties included public and professional representation of the EWDE; and the advertisement stated that candidates should be members of a Protestant Church or of a member-Church of the Cooperative of Christian Churches in Germany. When she failed to get the job, she lodged a claim with the German Labour Courts for payment of damages of around €10,000, arguing that she had been rejected because she does not belong to any religious community and that she had been discriminated against on the basis of belief.
In Egenberger, the Bundesarbeitsgericht (Federal Labour Court) had submitted a series of questions to the Court of Justice, as follows:
“1. Is Article 4(2) of Directive 2000/78/EC [the Equal Treatment Directive] to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities 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?
2. If the first question is answered in the negative:
In a case such as the present, is it necessary to disapply a provision of national law – such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz, General Law on equal treatment) – which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement?
3. If the first question is answered in the negative, further:
What requirements are there as regards the nature of the activities or of the context in which they are carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive 2000/78/EC?”
The opinion of the Grand Chamber
The Court started by finding that, under the directive, the right to autonomy of Churches (and other organisations whose ethos is based on religion or belief) had to balanced fairly with the right of workers not to be discriminated against on grounds of religion or belief – including during the recruitment process. In the event of a dispute, it must be possible for such a balancing exercise to be reviewed by an independent authority and, ultimately, by a national court.
Where a Church or other organisation whose ethos is based on religion or belief rejected an application for employment with it on the basis that, by reason of the nature of the activities concerned or the context in which they were to be carried out, religion was a genuine, legitimate and justified occupational requirement for the post, having regard to the ethos of the church (or organisation), that assertion had to be capable of effective judicial review – and the court hearing the case had to ensure that the criteria laid down by the directive for striking a balance between the possibly competing rights were satisfied.
In principle, it was not for the national courts to rule on the ethos on which the purported occupational requirement was founded as such; nevertheless, they had to decide, case by case, whether or not the three criteria of a “genuine, legitimate and justified” requirement had been satisfied from the point of view of that ethos. Consequently, they had to decide whether the requirement put forward was necessary and objective, having regard to the ethos of the organisation in question, the nature of the occupational activity or the circumstances in which it was to be carried out. In addition, the requirement had to be proportionate and not go beyond what was necessary to attain the objective pursued.
Finally, it was for the national courts to interpret the national law transposing the directive, so far as possible, in conformity with that directive. If it proved impossible to interpret the applicable national law (in the present case, the German General Law on equal treatment) in conformity with the Anti-Discrimination Directive, as interpreted by the CJEU in today’s judgment, a national court hearing a dispute between two individuals would have to disapply the national law.
Because the Charter of Fundamental Rights applied to such cases, the national court had to ensure that the mandatory prohibition of discrimination on grounds of religion or belief under Article 21 of the Charter and the right to effective judicial protection under Article 47 were enforced. Both the prohibition of discrimination and the right to effective judicial protection gave claimants an enforceable right in disputes with other individuals in a field covered by EU law.
The Grand Chamber ruled as follows:
“(1) Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in conjunction with Articles 9 and 10 of the directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a church or other organisation whose ethos is based on religion or belief asserts, in support of an act or decision such as the rejection of an application for employment with it, that by reason of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be the subject, if need be, of effective judicial review by which it can be ensured that the criteria set out in Article 4(2) of that directive are satisfied in the particular case.
(2) Article 4(2) of Directive 2000/78 must be interpreted as meaning that the genuine, legitimate and justified occupational requirement it refers to is a requirement that is necessary and objectively dictated, having regard to the ethos of the church or organisation concerned, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organisation. That requirement must comply with the principle of proportionality.
(3) A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter of Fundamental Rights of the European Union and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.”