Advocate General Wathelet has issued his Opinion in IR (Social policy – Occupational activities of churches – Opinion)  EUECJ C-68/17 O.
The Roman Catholic Church in Germany requires that Church managerial employees such as doctors who are Heads of Department in hospitals must comply with the Church’s doctrinal and moral teaching in their personal conduct. JQ, a Roman Catholic, was Head of the Internal Medicine Department of a Roman Catholic hospital in Düsseldorf managed by IR, a limited liability company established under German law and subject to the supervision of the Archbishop of Cologne. JQ divorced his first wife and remarried in a civil ceremony but without a prior annulment – and he was sacked.
IR contends that, by entering into a marriage invalid under canon law, JQ had clearly infringed his obligations under his employment relationship, thereby justifying his dismissal. JQ, however, argues that his dismissal is an infringement of the principle of equal treatment because, in accordance with the Church’s rules, a Head of Department of the Protestant faith or of no faith would not have been dismissed for divorce and remarriage.
The German Federal Labour Court [Bundesarbeitsgericht] sought a ruling from the CJEU on whether the German concept of the right to religious self-determination, which allows the Roman Catholic Church to require different gradations of loyalty from its employees depending on their professed religion even where they hold similar positions, complies with EU law and, more specifically, with the prohibition of discrimination on grounds of religion laid down by the Equal Treatment Directive, as follows:
“Is the second subparagraph of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as meaning that the church can determine with binding effect that an organisation such as the defendant in the present proceedings, where employees in managerial positions are required to act in good faith and with loyalty, shall differentiate between employees who belong to the church and those who belong to another church or to none at all?
If the first question is answered in the negative:
(a) Must the provision of national law, in this case Paragraph 9(2) of the Allgemeines Gleichbehandlungsgesetz (General Law on equal treatment), according to which unequal treatment of this kind on the basis of the religious affiliation of employees is justified in accordance with the church’s self-concept, be disapplied in these proceedings?
(b) What requirements apply, in accordance with the second subparagraph of Article 4(2) of Directive 2000/78/EC, in respect of a requirement for employees of a church or one of the other organisations mentioned to act in good faith and with loyalty to the organisation’s ethos?”
AG Wathelet’s Opinion
AG Wathelet begins from the position that JQ’s dismissal would be manifestly unlawful, as direct religious discrimination, were it not for the fact that churches and the like benefit from a special legal regime both under German constitutional law and under the Directive.
Under the Directive, a difference of treatment based on religion or belief does not constitute discrimination where, by reason of the nature of the activities or of the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement having regard to the organisation’s ethos. The positions of Roman Catholic employees and employees of another faith or no faith at all must be examined objectively on the basis of the occupational activities of the religious employer: in this case, the provision of healthcare.
In the present case, the requirement in question is not membership of a particular religion but, rather, the profession of a particular Roman Catholic belief: the concept of marriage as defined by the Church’s doctrine and canon law, which includes respect for religious marriage and the sacred and indissoluble nature of the marriage bond. AG Wathelet considers that such a profession of belief does not constitute, in the present case, an occupational requirement, much less one that is genuine and justified:
- It is not linked to the occupational activities of IR and JQ – the provision of healthcare services and patient care – because membership of the Roman Catholic Church is not a required condition for the role of Head of the Internal Medicine Department and that IR recruits non-Catholics for roles with medical responsibility and entrusts managerial duties to them .
- Because it is directed at JQ’s private and family life, it has no possible link with the administrative tasks for which he is responsible as a Head of Department .
- Respect for the concept of marriage according to the doctrine and canon law of the Roman Catholic Church does not appear necessary for the manifestation of IR’s ethos or for the exercise by IR of its right of autonomy, given that patients and colleagues do not expect the Head of the Internal Medicine Department to be a Roman Catholic or that he should not have contracted a marriage that is invalid under the doctrine and canon law of the Roman Catholic Church: their expectations are his qualifications and medical skills and his abilities as a good administrator .
- JQ’s divorce and remarriage in a civil ceremony pose no risk, whether probable or substantial, of causing harm to IR’s ethos or right of autonomy .
- IR did not even consider relieving JQ of his duties as Head of the Internal Medicine Department but simply dismissed him, whereas a doctor without any managerial role would not have been bound by the requirement in question .
He further observes that the principle of non-discrimination on grounds of religion or belief, given the historical context in which the EU was founded, constitutes a fundamental constitutional value of the EU legal order which the Court has recognised as a general principle of EU law; and that that principle gives private persons an individual justiciable right [84 & 85].
He proposes that the Court should answer the questions referred for a preliminary ruling by the Bundesarbeitsgericht as follows:
“(1) The second subparagraph of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it allows a religious organisation such as IR to require, from its employees of the same faith, an attitude of good faith and loyalty greater than that required from employees of a different faith or those with no faith at all, only to the extent that that requirement complies with the criteria stated in the first subparagraph of Article 4(2) of Directive 2000/78.
(2) A national court hearing a dispute between two private parties 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 the general principle of non-discrimination on grounds of religion and to guarantee the full effectiveness of that principle by disapplying, if need be, any contrary provision of national law” [emphasis added].
It should be noted that the Advocate General’s Opinion is not binding on the Court.