Good Friday holidays and discrimination: Cresco v Achatzi

In Austria, Good Friday is a paid public holiday only for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the  Evangelical Methodist Church. If a member of one of those Churches has to work on that day, s/he is entitled to additional pay in lieu [12]. Mr Markus Achatzi is an employee of Cresco Investigation, a private detective agency, and is not a member of any of the Churches in question. He claims that he suffered discrimination by being denied public holiday pay for the work he did on Good Friday, 3 April 2015, and sought an extra day’s pay from his employer [13]. The Supreme Court [Oberster Gerichtshof] stayed the proceedings and asked the CJEU whether the Austrian legislation at issue was compatible with the EU law prohibition on discrimination on grounds of religion in Article 21 Charter of Fundamental Rights and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

In Cresco Investigation GmbH v Achatzi [2019] EUECJ C-193/17, the CJEU Grand Chamber ruled that the Austrian law constituted direct discrimination on grounds of religion.

The questions referred

The national court explained that the special arrangements provided for in Article 7(3) of the Arbeitsruhegesetz(“ARG”: law on rest and holidays, BGBl 144/1983) was to allow members of one of the Churches affected by it to practise their religion on an especially important day of celebration for them [16]. While the national court conceded that those who were not members of the Churches listed under Article 7(3) were, in principle, treated less favourably because of religion [17], it raised the question of whether the situations of the two categories of workers were comparable [18].

The referring court suggested that the difference in treatment at issue could not engage EU Union law in a dispute between individuals because, in the main, those rights were directly applicable. Directive 2000/78 had been transposed by the Austrian Law on equal treatment, which enjoyed no primacy over the ARG, and the clear wording of Article 7.3 ARG was opposed to an interpretation consistent with EU law that would extend the Good Friday holidays to workers who were not members of the Churches covered by the ARG [21]. The referring court also noted that Article 2.5 of the Equal Treatment Directive 2000/78 did not affect measures laid down by national legislation that were necessary in a democratic society, especially in the protection of rights and freedoms of others; and it stressed that, according to the case-law, freedom of religion and freedom of worship were among the foundations of democratic society [22].

The referring court asked:

  • whether the scheme provided for in Article 7.3 of the ARG was to be considered as a measure necessary for the protection of freedom of religion and worship of workers who were members of one of the Churches covered by it [23];
  • whether the difference in treatment at issue could be justified under Article 7.1 of Equal Treatment Directive 2000/78, in that it would be a positive and specific measure to eliminate existing disadvantages [24];
  • if the legal regime for Good Friday under Article 7.3 of the ARG infringed the Equal Treatment Directive, whether the violation had to be offset by obliging the employer to grant the Good Friday holiday to all its workers, even though the Austrian legislature had intended to take restrict to a clearly-defined group with religious reasons for being absent on that day, in order to safeguard the interests of employers who objected to any excessive extension of the general scheme of holidays [26]; and
  • whether, should it be found that the legal regime for Good Friday was not a positive action or a specific measure within the meaning of Article 7.1 of the Equal Treatment Directive, that finding should lead to the total inapplicability of Article 7.3 of the ARG, so that no worker could benefit either from a day’s holiday on Good Friday or from holiday pay in lieu [27].

The judgment

The Grand Chamber ruled as follows:

“1) Section 1 and Article 2, paragraph 2 of Directive 2000/78 / EC of 27 November 2000 establishing a general framework for equal treatment in employment and labour must be interpreted as meaning that national legislation under which, first, Good Friday is a holiday for the workers who are members of certain Christian Churches and, secondly, that only those workers, if they have to work during the holiday, are entitled to payment in addition to their regular salary for services performed during that day, constitutes direct discrimination on grounds of religion.

The measures provided for by the national legislation cannot be considered either as measures necessary for the preservation of the rights and freedoms of others, within the meaning of Article 2, paragraph 5 of the Directive, nor as specific measures to compensate for disadvantages linked to religion within the meaning of Article 7, paragraph 1, of the Directive.

2) Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, so long as the Member State concerned has not changed the law to restore equal treatment, not granting the right to a holiday on Good Friday as members of certain Christian churches workers, a private employer subject to this legislation is also obliged to grant his other workers the right to a public holiday on Good Friday, so far as they have previously asked their employer not to have to work on that day and, consequently, to recognise the right of those workers to additional pay for the services performed during that day where the employer has refused to grant such an application.” [my translation: the available texts are in German and French]

Comment: In passing, it seems very odd that Good Friday is not listed specifically as a holiday for Roman Catholics also – though paragraph [19] of the judgment appears to suggest that they also benefit from the provision.

Cite this article as: Frank Cranmer, "Good Friday holidays and discrimination: Cresco v Achatzi" in Law & Religion UK, 22 January 2019, https://lawandreligionuk.com/2019/01/22/good-friday-holidays-and-discrimination-cresco-v-achatzi/

Leave a Reply

Your email address will not be published.