In JQ v IR [2018] EUECJ C-68/17, the applicant, a Roman Catholic, worked as Head of the Internal Medicine Department of a hospital managed by IR, a limited liability company established under German law and subject to the supervision of the Archbishop of Cologne. He divorced his first wife and remarried in a civil ceremony but his first marriage was not annulled. When IR discovered this, it sacked him on the grounds that he had infringed the duty of loyalty arising under his employment contract. He challenged his dismissal on the grounds that a non-Roman Catholic employee would not have been treated in the same way. The German Federal Labour Court asked the CJEU for an advisory opinion as to the application of Council Directive 2000/78/EC of 27 November 2000 – the Equal Treatment Directive. The Grand Chamber replied that the decision of a Church or other organisation with an ethos based on religion or belief and which manag­es a hospital (in the form of a private limited company) to require its employees performing managerial duties to act in good faith and behave in a way that differed depending on the faith or lack of faith of the individual employee was, in principle, reviewable by the national courts.

It was for the national court to satisfy itself that the religion or belief requirement was genuine, legitimate and justified in the light of the ethos in question. However, the Grand Chamber added that, though it was for Germany’s Federal Labour Court to judge the case on the facts, it did not believe that adherence to the Roman Catholic Church’s teaching on marriage was necessary for the promotion of IR’s ethos because of the importance of JQ’s role in the hospital: giving medical advice and care and managing the internal medicine department. It did not, therefore, appear to be a genuine occupational requirement for his job.

The Grand Chamber ruled 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:

–        first, that a church or other organisation the ethos of which is based on religion or belief and which manages a hospital in the form of a private limited company cannot decide to subject its employees performing managerial duties to a requirement to act in good faith and with loyalty to that ethos that differs according to the faith or lack of faith of such employees, without that decision being subject, where appropriate, to effective judicial review to ensure that it fulfils the criteria laid down in Article 4(2) of that directive; and

–        second, that a difference of treatment, as regards a requirement to act in good faith and with loyalty to that ethos, between employees in managerial positions according to the faith or lack of faith of those employees is consistent with that directive only if, bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief constitutes an occupational requirement that is genuine, legitimate and justified in the light of the ethos of the church or organisation concerned and is consistent with the principle of proportionality, which is a matter to be determined by the national courts.

2.      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 a manner that is consistent with Article 4(2) of Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from the general principles of EU law, such as the principle prohibiting discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, and to guarantee the full effectiveness of the rights that flow from those principles, by disapplying, if need be, any contrary provision of national law.”

Comment: In effect, the Court has reaffirmed what it said in April, in Egenberger: that employers must take care that any occupational requirement that they impose on a post is genuine.