Order of 29 September 2025

R e a s o n s :

A. 

1

The constitutional complaint concerns the question under what conditions a church-affiliated employer may require church membership for a specific position of employment and to what extent national courts can review such a requirement in light of the right to religious self-determination (Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law, Grundgesetz – GG and Art. 137(3) first sentence of the Weimar Constitution, Weimarer Reichsverfassung – WRV). This issue demands an examination of the requirements imposed by EU law and constitutional law for the interpretation of § 9(1) of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz – AGG), which implements Art. 4(2) subpara. (1) of Directive 2000/78/EC (Equal Treatment Directive) and permits church-affiliated employers to treat job applicants differently on grounds of religion, insofar as belonging to a particular religion ‘constitute[s] a justified occupational requirement (…), having regard to the ethos of the religious community (…) in question and by reason of its right to self-determination or by the nature of the particular activity’.

I. 

2

1. a) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ EC L 303 of 27 November 2000, p. 16), which is based on Art. 19 of the Treaty on the Functioning of the European Union (TFEU; formerly Art. 13 EC Treaty) serves to prevent discrimination in employment. Insofar as it is relevant here, it reads as follows:

Article 1 Purpose

The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.

Article 2 Concept of discriminatio

1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

(…)

Article 4 Occupational requirements

(…)

2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

Article 8 Minimum requirements

1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.

3

Art. 4(2) of the Equal Treatment Directive is complemented by the 24th recital of the Directive:

The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.

4

Declaration no. 11 on the status of churches and non-confessional organisations annexed to the Treaty of Amsterdam, which the 24th recital of the Directive refers to, reads as follows:

11. Declaration on the status of churches and non-confessional organisations

The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

The European Union equally respects the status of philosophical and non-confessional organisations.

5

The declaration has been incorporated into primary law in the form of Art. 17 TFEU with nearly identical wording:

Article 17 TFEU

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

6

b) The federal legislator implemented the Equal Treatment Directive […] into German law through the provisions of the General Act on Equal Treatment of 14 August 2006 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 1897; cf. Bundestag document, Bundestagsdrucksache – BTDrucks 16/1780). The Act entered into force on 18 August 2006.

7

§ 9 of the General Act on Equal Treatment, which implements Art. 4(2) of the Equal Treatment Directive (cf. BTDrucks 16/1780, pp. 35 f.), reads as follows:

§ 9 Permissible difference of treatment on ground of religion or belief

(1) Notwithstanding § 8, a difference of treatment on the ground of religion or belief of employees of a religious community, facilities affiliated to it, regardless of their legal form, or organisations which have undertaken conjointly to practice a religion or belief does not constitute discrimination where such grounds constitute a justified occupational requirement for a particular religion or belief, having regard to the ethos of the religious community or organisation in question and by reason of its right to self-determination or by the nature of the particular activity.

(2) The prohibition of different treatment on the ground of religion or belief is without prejudice to the right of the religious community referred to in subsection (1), the facilities assigned to it, regardless of their legal form, or organisations which have undertaken conjointly to practice a religion or belief to require individuals working for them to act in good faith and with loyalty to the ethos of the organisation.

8

[…]

9

2. In several cases, the courts have dealt with the tension caused between the freedom of religious organisations (korporative Religionsfreiheit) as it applies to church-affiliated employers and the requirements they derive from this freedom for their employees, or the right of private and public employers to enforce the prohibition on wearing religious symbols in the spirit of a neutral environment within a company or an authority on the one hand, and the right of affected employees to equal treatment on grounds of religion on the other. For the issues raised in the present case, several decisions of the Court of Justice of the European Union (see a) below), of the European Court of Human Rights (see b) below) and of the Federal Constitutional Court (see c) below) are particularly relevant.

10

a) The Court of Justice of the European Union expressed its views on the substance and significance of the Equal Treatment Directive in several cases in which the right to religious freedom (of either employees or employers) was affected.

11

aa) On 11 September 2018, it decided in a preliminary ruling requested by the Federal Labour Court (Bundesarbeitsgericht) (Federal Labour Court, Reference for a preliminary ruling of 28 July 2016 - 2 AZR 746/14 <A> -;cf. also paras. 22 f. below) regarding the dismissal of a doctor who was a department head at a hospital (cf. CJEU, IR, 11 September 2018, C-68/17, EU:C:2018:696). He had divorced his wife and then remarried during his employment at a hospital run by Caritas [a Catholic organisation].

12

In its judgment, the Court of Justice held that the fulfilment of the criteria set out in Art. 4(2) subpara. (2) of the Equal Treatment Directive must be subject to effective judicial review. A difference of treatment, as regards a requirement to act in good faith and with loyalty to the ethos of a religious organisation, 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 (cf. CJEU, loc. cit., para. 61).

13

In applying the standards developed by the Court of Justice of the European Union, the Federal Labour Court, in its judgment of 20 February 2019 - 2 AZR 746/14 - considered the dismissal of the doctor to be unjustified on social grounds within the meaning of § 1(2) of the Protection Against Dismissal Act (Kündigungsschutzgesetz). It found that the plaintiff had not violated a contractual duty of loyalty in a way that could justify dismissal. The provisions in the employment contract between the parties stipulating that a head of department entering into a marriage that is invalid according to the faith and legal order of the Catholic Church commits a breach of loyalty that can in principle justify dismissal and that living in a marriage that is invalid under church law constitutes important grounds for extraordinary dismissal are invalid since they violate § 7(2) of the General Act on Equal Treatment. The Federal Labour Court held that such stipulations could not be justified under § 9(2) of the General Act on Equal Treatment (cf. Federal Labour Court, Judgment of 20 February 2019 - 2 AZR 746/14 -, juris, para. 12). It argued that the interpretation of § 9(2) of the General Act on Equal Treatment must be consistent with EU law requirements. The case in dispute did not satisfy the requirements arising from EU law for upholding a difference of treatment between the person dismissed and heads of department who do not belong to the Catholic Church (cf. Federal Labour Court, loc. cit., para. 29).

14

bb) The Court of Justice of the European Union decided various preliminary ruling procedures on the question of whether prohibitions on wearing headscarves in private and public workplaces are compatible with the Equal Treatment Directive.

15

(1) In the request for a preliminary ruling C-157/15 (G4S Secure Solutions NV), the Court of Justice, in its judgment of 14 March 2017, decided that the prohibition on wearing any political, philosophical or religious sign in the workplace, which arises from an internal rule of a private undertaking, does not constitute direct discrimination based on religion or belief within the meaning of the Equal Treatment Directive in view of the interpretation of Art. 2(2)(a) of that Directive, but it does constitutes indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality (cf. CJEU, G4S Secure Solutions NV, 14 March 2017, C-157/15, EU:C:2017:203, ruling and paras. 30 ff., 33 ff.).

16

(2) In the joint cases WABE and Müller – initiated by requests for preliminary rulings by German labour courts – and in the proceedings concerning the Belgian municipality Ans, the Court of Justice of the European Union emphasised that the Equal Treatment Directive only establishes ‘a general framework for combating discrimination as regards employment and occupation’ (cf. CJEU, WABE and Müller, 15 July 2021, C-804/18 inter alia, EU:C:2021:594, paras. 44, 51, 85 f.; Commune d’Ans, 28 November 2023, C-148/22, EU:C:2023:924, para. 34). The Member States are left a margin of discretion, taking into account the diversity of their approaches as regards the place accorded to religion and beliefs within their public sector (cf. CJEU, WABE and Müller, 15 July 2021, C-804/18 inter alia, EU:C:2021:594, para. 86; Commune d’Ans, 28 November 2023, C-148/22, EU:C:2023:924, para. 34).

17-18

[…]

19

b) According to the established case-law of the European Court of Human Rights, the freedom of religious organisations is protected by Art. 9 of the European Convention on Human Rights. If a religious community or an organisation affiliated with it invokes its freedom as a religious organisation to justify the dismissal of an employee, this right must be balanced against the employee’s conflicting legal positions protected by the Convention. The European Court of Human Rights has decided several cases concerning the dismissal of an employee by a church-affiliated employer (cf., e.g., ECtHR, Obst c. Allemagne, 23 September 2010, 425/03; Siebenhaar c. Allemagne, 3 Februray 2011, 18136/02; Fernández Martínez v. Spain, 12 June 2014, 56030/07; Travaš v. Croatia, 4 October 2016, 75581/13). By contrast, the European Court of Human Rights has not yet decided the question at issue here, regarding a difference of treatment on religious grounds in recruitment processes.

20

c) In the case-law of the Federal Constitutional Court, there are two significant decisions regarding church labour law as a manifestation of the right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution.

21

In 1985, the Court decided two constitutional complaints concerning dismissals of employees handed down by church-affiliated organisations due to violations of so-called duties of loyalty (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 70, 138). In this decision, the Federal Constitutional Court emphasised the great significance of the right to religious self-determination. While state labour law is applicable when a religious community makes use of its freedom of contract under private law to establish employment relationships, the constitutional guarantee of the right to self-determination remains decisive in shaping the employment relationship (cf. BVerfGE 70, 138 <165>). According to the Court, the fundamental religious obligations which are relevant for the employment relationship are established in accordance with the standards recognised by the church in question (cf. BVerfGE 70, 138 <166>).

22

The second decision of the Federal Constitutional Court on church labour law was handed down in 2014 (BVerfGE 137, 273; so-called Senior doctor case). The complainant was a church-affiliated organisation running a Catholic hospital (cf. BVerfGE 137, 273 <281 para. 13>), which had dismissed a senior doctor employed by it on extraordinary grounds because he had ended his marriage, which had been concluded under Catholic law, through divorce during his employment and had remarried a few years later (cf. BVerfGE 137, 273 <281 ff. para. 13 ff.>). According to the stipulations in the employment contract applicable at that time, a marriage or similar union that was invalid under church law constituted a serious breach of church principles that could justify extraordinary dismissal (cf. BVerfGE 137, 273 <282 f. para. 15>).

23

The Federal Labour Court, as the last non-constitutional instance, had found that the dismissal was invalid (Federal Labour Court, Judgment of 8 September 2011 - 2 AZR 543/10 -, juris). The Federal Constitutional Court granted the constitutional complaint directed against that judgment, because the Federal Labour Court had failed to recognise the scope of the right to religious self-determination enshrined in Art. 140 of the Basic Law in conjunction with Art. 137(3) first sentence of the Weimar Constitution (cf. BVerfGE 137, 273 <329 para. 145>; for more details on the standards developed by the Senate see paras. 203 ff.; for the preliminary ruling requested by the Federal Labour Court after the matter had been remanded by the Federal Constitutional Court cf. paras. 11 ff.).

24

3. The relevant labour regulations of the Protestant Church have since been amended in several respects, including as a result of developments in national legislation and in jurisprudence (see a) below). Similar developments occurred in the Catholic Church (see b) below).

25

a) aa) The labour regulations of the Protestant Church are essentially based on Art. 9(b) of the Basic Rules for the Protestant Church in Germany (Grundordnung für die Evangelische Kirche in Deutschland) of 13 July 1948 (Official Journal of the Protestant Church in Germany, Amtsblatt der Evangelischen Kirche in Deutschland – ABl EKD 1948, p. 233), in the version of 15 January 2020 (ABl EKD 2020, p. 2, corr. p. 25):

Article 9

The Protestant Church may establish guidelines, in particular

(…)

b) for the legal relationships of and financial support for pastors and all other church officials;

(…)

26

bb) On the basis of this provision, the Council of the Protestant Church in Germany (Rat der Evangelischen Kirche in Deutschland) enacted the Guidelines for the Requirements of Employment under Private Law in the Protestant Church in Germany and the Social Welfare Organisation of the Protestant Church in Germany (Richtlinie über die Anforderungen der privatrechtlichen beruflichen Mitarbeit in der Evangelischen Kirche in Deutschland und des Diakonischen Werkes der Evangelischen Kirche in Deutschland – AnfRL-2005 <ABl EKD 2005, p. 413>) on 1 July 2005. The guidelines address the requirements for establishing an employment relationship in particular. The provisions relevant in the present proceedings read as follows in their original version, on which the Federal Labour Court based the decision challenged here:

§ 2 Foundations of the service of the Church

(1) The service of the Church is defined by its mission to bear witness to the Gospel in word and deed. All women and men who are employed by the Church and its social welfare organisation contribute in different ways to ensuring that this mission can be fulfilled. This mission forms the basis of the rights and obligations of church-affiliated employers and employees.

(2) It is the task of the church-affiliated and church welfare organisations to familiarise their employees with the Christian principles governing their work. They promote further education and training on topics related to faith and the Christian view of humanity.

§3 Occupational requirements for the establishment of an employment relationship

(1) Working for the Protestant Church and its social welfare organisation generally requires membership of a member church of the Protestant Church in Germany or a church with which the Protestant Church in Germany is affiliated.

(2) For tasks that are not related to proclamation of the Gospel, pastoral care, instruction or leadership, exceptions may be made to subsection (1) if no other suitable employees can be found. In that case, persons who belong to another member church of the Working Group of Christian Churches in Germany or the Association of Protestant Free Churches may also be recruited. Recruitment of persons who do not meet the requirements of subsection (1) must be examined on a case-by-case basis, taking into account the size of the department or institution and its other staff, as well as the tasks to be performed and the environment. § 2(1) second sentence remains unaffected.

(…)

27

After essential aspects of the guidelines had already been amended on 9 December 2016 (cf. ABl EKD 2017, p. 11), the Council of the Protestant Church in Germany enacted new guidelines on 8 December 2023. Their current title is ‘Guidelines of the Council for the Requirements of Employment in the Protestant Church in Germany and its Social Welfare Organisation of 8 December 2023 (Employment Guidelines)’ (MitarbeitsRL <ABl EKD 2024, p. 28>).[…]

28-30

[…]

31

In the new version of the Employment Guidelines, the Protestant Church in Germany departed from its previous approach of generally requiring membership of a member church of the Protestant Church in Germany or the Working Group of Christian Churches in Germany or the Association of Protestant Free Churches for employment. Pursuant to § 4(1) second sentence of the Employment Guidelines, this requirement is now dependent on the type of activities concerned and the context in which they are carried out. This wording integrates the requirements of § 9(1) second alternative of the General Act on Equal Treatment and Art. 4(2) subpara. (1) of the Equal Treatment Directive.

32

b) Similar developments occurred in the Catholic Church. The Catholic Church, too, has responded to legal changes and now refrains from requiring membership of the Catholic Church as a central prerequisite for employment without exception. Church membership is only required for activities that are defined by pastoral care, proclamation of the Gospel or instruction or that otherwise shape, represent and promote the Catholic profile of the institution.

33

[…]

II. 

34

1. The complainant is the Evangelisches Werk für Diakonie und Entwicklung (EWDE), a Protestant organisation established in 2012 in the form of a registered association […].

35

The majority of its members are religious – mostly Protestant – and non-religious charities and missionary organisations. […]

36

The complainant’s activities are based on the By-Laws of the Evangelisches Werk für Diakonie und Entwicklung (Satzung des Evangelischen Werkes für Diakonie und Entwicklung – SEWDE) of 14 June 2012 (ABl EKD 2013, p. 376), last amended on 16 October 2024. Pursuant to § 6(1) first sentence of the By-Laws in the version of 14 June 2012 – on which the challenged judgment of the Federal Labour Court is based – the organisation ‘Diakonie Deutschland – Evangelischer Bundesverband’ (...) performs the tasks of the association as a recognised ‘umbrella organisation of independent welfare services’. The complainant’s tasks are specified in § 5(3) of the By-Laws in the version of 14 June 2012, according to which it performs social welfare and missionary tasks within the meaning of the Basic Rules of the Protestant Church in Germany as well as tasks relating to development and humanitarian aid.

37

2. On 23 November 2012, the complainant advertised the following position:

We are looking for a policy officer (60% working time) for a fixed term of two years to start on 1 January 2013 for the project ‘Parallel Reporting on the UN Convention on the Elimination of Racial Discrimination’ at the EWDE’s Migration and Social Affairs Centre in Berlin.

The aim is to create an independent report on Germany’s implementation of the UN Convention on the Elimination of Racial Discrimination, which can serve as an additional basis for the United Nations’ concluding observations on the German state report. The report will be drawn up in consultation with human rights organisations and other stakeholders and serves to highlight courses of action based on human rights to politicians, administrators and organisations.

Responsibilities:

- Assist with the 2012-2014 process of state reporting

- Prepare a parallel report to the German state report and create statements and contributions

- Represent the organisation in project-related dealings with politicians, the public and human rights organisations, and participate in committees

- Inform and coordinate the opinion-forming process within the organisation

- Organise and administer the field of work and report on its status

Requirements:

- Law degree or comparable qualification

- In-depth knowledge of international law and anti-racism work

- Proficiency and experience in managing project funds

- Strong command of English

- Analytical skills, willingness to learn, initiative, ability to work under pressure

- Willingness to accept responsibility

- Communication skills and ability to work in a team

- Willingness to travel frequently

We welcome applications from people regardless of their origin or skin colour, gender, disability, age, or sexual identity.

We presume that applicants are members of a Protestant Church or a Church belonging to the Working Group of Christian Churches in Germany and identify with the social welfare mission of the Church. Please indicate your religious affiliation in your resume.

[…].’

38

3. The plaintiff in the initial proceedings (hereinafter: the plaintiff), who has no religious affiliation, applied for the vacancy without stating any religious affiliation. She was not invited to a job interview. The position was awarded to an applicant who had described himself in his application as a ‘Protestant Christian socialised in the Berlin regional church (Berliner Landeskirche).’

39

4. Thereupon, the plaintiff filed an action with the Berlin Labour Court (Arbeitsgericht), requesting that the complainant pay compensation of at least EUR 9,788.65 pursuant to § 15(2) of the General Act on Equal Treatment because she had been treated less favourably than comparable applicants on grounds of religion. By judgment of 18 December 2013 - 54 Ca 6322/13 -, the Berlin Labour Court awarded the plaintiff compensation of EUR 1,957.73. Following the complainant’s appeal (Berufung), the Berlin-Brandenburg Higher Labour Court (Landesarbeitsgericht) dismissed the plaintiff’s action by judgment of 28 May 2014 - 4 Sa 157/14, 4 Sa 238/14 -. The Higher Labour Court held that the plaintiff was not entitled to compensation because the difference of treatment on religious grounds was justified under § 9(1) first alternative of the General Act on Equal Treatment.

40

5. a) In the appeal on points of law (Revision) filed by the plaintiff, the Federal Labour Court, by order of 17 March 2016 - 8 AZR 501/14 (A) -, requested a preliminary ruling from the Court of Justice of the European Union pursuant to Art. 267 TFEU.

41

aa) The Federal Labour Court referred the following questions to the Court of Justice of the European Union:

(1) Is Art. 4(2) of Directive 2000/78/EC 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 a particular religion of an applicant, 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 or church’s ethos?

(2) If the answer to Question 1 is in the negative:

In a case such as the present, is it necessary to disapply a provision of national law – such as, in this case, § 9(1) first alternative of the General Act 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 affiliated to them is also lawful where a particular religion, in accordance with the ethos of the religious community, having regard to its right of self-determination, constitutes a justified occupational requirement?

(3) If the answer to Question 1 is in the negative:

What requirements are there as regards the nature of the activity or the context in which it is carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Art. 4(2) of Directive 2000/78/EC?

42

The Federal Labour Court held that it was necessary to have the interpretation of Art. 4(2) of the Equal Treatment Directive clarified, including with regard to Art. 17 TFEU. It argued that the substance of these provisions is decisive for the interpretation of § 9(1) of the General Act on Equal Treatment.

43-45

[…]

46

bb) […]

47

cc) By judgment of 17 April 2018, the Court of Justice of the European Union ruled as follows (CJEU, Egenberger, C-414/16, EU:C:2017:851):

(1) Art. 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 Arts. 9 and 10 of the Directive and Art. 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 Art. 4(2) of that Directive are satisfied in the particular case.

(2) Art. 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 Art. 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Arts. 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.

48-59

[…]

60

b) With the judgment of 25 October 2018 - 8 AZR 501/14 - challenged here, the Federal Labour Court ordered the complainant to pay the plaintiff compensation in the amount of EUR 3,915.46. It dismissed the remainder of the action. The reason given by the Federal Labour Court was that the reasoning of the Higher Labour Court with regard to the complainant’s justification for the unfavourable treatment of the plaintiff under § 9(1) first alternative of the General Act on Equal Treatment was unsuitable ([…]) and that the difference of treatment could not be justified by § 9(1) second alternative of the General Act on Equal Treatment either, so that the plaintiff was entitled to compensation under the provisions of the General Act on Equal Treatment.

61-79

[…]

III. 

80

With its constitutional complaint of 16 March 2019, the complainant challenges the judgment of the Federal Labour Court of 25 October 2018. In addition, the complainant indirectly challenges the judgment of the Court of Justice of the European Union of 17 April 2018. The complainant asserts violations of its right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution in conjunction with Art. 20(3) of the Basic Law (indirect ultra vires challenge), of its right – equivalent to a fundamental right – under Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) of the Basic Law (principal ultra vires challenge) and of Art. 1(1), Art. 20(1) and (2) and Art. 79(3) and Art. 23(1) of the Basic Law (challenge of a violation of constitutional identity).

81-104

[…]

IV. 

105

1. The Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz), the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales), the Ministry of the Land Berlin for Integration, Labour and Social Affairs (Senatsverwaltung für Integration, Arbeit und Soziales des Landes Berlin), the German Bundestag, the President of the Federal Labour Court, the President of the Court of Justice of the European Union and the plaintiff in the initial proceedings were notified of the constitutional complaint. Moreover, the Council of the Protestant Church in Germany, the Commissariat of German Bishops (Kommissariat der deutschen Bischöfe), the Central Council of Jews in Germany (Zentralrat der Juden in Deutschland K.d.ö.R.) and the United Services Union (ver.di – Vereinte Dienstleistungsgewerkschaft) were given the opportunity to submit a statement as expert third parties.

106-111

[…]

112

2. […]

113

3. By submission of 12 March 2021, the plaintiff in the initial proceedings lodged a challenge on grounds of possible bias regarding the then Justices of the Federal Constitutional Court Huber and Müller.

114

4. The Senate had access to the files of the initial proceedings.

B. 

I. 

115-117

[…]

II. 

118

The challenges on grounds of possible bias regarding former Justices Müller and Huber need not be decided. They have become moot as the Justices concerned have left office (cf. BVerfGE 131, 239 <252>; BVerfG, Order of the Second Chamber of the Second Senate of 9 February 2022 - 2 BvR 2258/21 -, para. 5).

C. 

119

The constitutional complaint is admissible. The complainant admissibly asserts that the challenged judgment of the Federal Labour Court, in applying the standards set forth by the Court of Justice of the European Union, has violated its right to religious self-determination (indirect ultra vires challenge) (see I. below). With regard to the principal ultra vires challenge and the challenge on grounds of a violation of constitutional identity, the complainant does not have the ability to lodge a constitutional complaint (see II. below).

I. 

120

The complainant admissibly asserts a violation of its right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution; it states that the Federal Labour Court, in the challenged judgment, adopted the standards set forth by the Court of Justice of the European Union in its judgment of 17 April 2018 despite the manifest breach of competences and the structural shift of competences to the detriment of the Member States resulting therefrom, and thereby curtailed the right to religious self-determination without a viable legal basis.

121

1. a) As an act of German public authority, the judgment of the Federal Labour Court can be admissibly challenged in constitutional complaint proceedings (Art. 94(1) no. 4a of the Basic Law, § 90(1) Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG).

122

b) The complainant also submits that the judgment of the Court of Justice of the European Union of 17 April 2018 is incorrect. While acts of institutions, bodies, offices and agencies of the European Union do not constitute acts of public authority within the meaning of Art. 94(1) no. 4a of the Basic Law and § 90(1) of the Federal Constitutional Court Act and thus cannot be directly challenged by constitutional complaint (cf. BVerfGE 142, 123 <179 f. para. 97>; 163, 363 <424 para. 116> – EPO), such acts may be reviewed by the courts as a preliminary question if they provide the basis for measures taken by German state organs (cf. BVerfGE 134, 366 <382 para. 23>; 142, 123 <180 para. 99>).

123

The complainant’s submissions must be understood in this sense. The judgment of the Court of Justice of the European Union is a preliminary ruling requested by the Federal Labour Court and contains standards for the interpretation and application of Art. 4(2) of the Equal Treatment Directive, a provision that is decisive in the initial proceedings, and its implementation into German law in § 9(1) of the General Act on Equal Treatment. With reference of the precedence of EU law, the Federal Labour Court relied on these standards in its judgment challenged here. The complainant asserts that the judgment of the Court of Justice of the European Union constitutes an ultra vires act and that its consequences affect the Basic Law’s constitutional identity.

124

2. The complainant has the ability to lodge a constitutional complaint within the meaning of Art. 94(1) no. 4a of the Basic Law and § 90(1) of the Federal Constitutional Court Act, insofar as it asserts that the adoption of the jurisprudence of the Court of Justice of the European Union by the judgment of the Federal Labour Court of 25 October 2018 violates its right to religious self-determination (indirect ultra vires challenge). As an association under private law that performs tasks of the Protestant Church in Germany, the complainant is a holder of the right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution.

125

3. The complainant has standing. It sufficiently substantiates the possibility of a violation of its right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution.

126-131

[…]

II. 

132

With regard to the principal ultra vires challenge and the challenge on grounds of a violation of constitutional identity, the complainant does not have the ability to lodge a constitutional complaint.

133

1. Pursuant to Art. 94(1) no. 4a of the Basic Law, any person can lodge a constitutional complaint claiming that an act of public authority has violated one of their fundamental rights, or equivalent rights enshrined in Art. 20(4), Arts. 33, 38, 101, 103, 104 of the Basic Law. In other words, a constitutional complaint can be lodged by any holder of a fundamental or equivalent right that is claimed to have been violated (cf. BVerfGE 125, 39 <73>; 129, 78 <91>). Under Art. 19(3) of the Basic Law, domestic legal persons are also holders of fundamental rights to the extent that the nature of the affected fundamental rights permits (cf. BVerfGE 129, 78 <91>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 3 November 2015 - 1 BvR 1766/15 inter alia -, para. 6).

134

2. The complainant invokes Art. 38(1) of the Basic Law for the ultra vires challenge it describes as ‘principal’. However, the complainant, as a legal person, cannot invoke this right.

135-137

[…]

138

3. Insofar as the complainant challenges a violation of constitutional identity, invoking Art. 1(1), Art. 20(1) and (2) as well as Art. 79(3) and Art. 23(1) of the Basic Law, it does not have the ability to lodge a constitutional complaint in this respect, either.

139-142

[…]

D. 

143

The constitutional complaint is well-founded. The judgment of the Federal Labour Court of 25 October 2018 must be reviewed on the basis of the fundamental rights of the Basic Law (see I. below). The substance and scope of the right to religious self-determination, whose scope of protection is affected here, must be determined with regard to EU law (see II. below). The challenged decision violates the complainant’s right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution (see III. below). It fails to recognise the latitude afforded to the Member States in the implementation of the Equal Treatment Directive as interpreted by the judgment of the Court of Justice of the European Union of 17 April 2018; as a result, it fails to accord the constitutionally required significance to the right to religious self-determination for the interpretation and application of § 9(1) of the General Act on Equal Treatment.

I. 

144

Based on the standards for cases involving the implementation of EU law (see 1. below), the standard of review applicable to the constitutional complaint are the fundamental rights of the Basic Law (see 2. below). This applies irrespective of whether the Federal Labour Court, in the challenged decision, had to take into consideration provisions that serve to implement EU law within the meaning of Art. 51(1) first sentence of the Charter of Fundamental Rights of the European Union.

145

1. a) The Federal Constitutional Court reviews domestic law and its application against the standard of the fundamental rights of the Basic Law even if the domestic law in question falls within the scope of application of EU law but is not fully determined by it. This follows from Art. 1(3), Art. 20(3) and Art. 94(1) no. 4a of the Basic Law. Based on these provisions, the binding effect of fundamental rights follows from the political responsibility for decisions, and thus corresponds to the respective responsibilities of the legislator and the executive. It falls to the German courts, and in particular to the Federal Constitutional Court, to ensure that fundamental rights are observed in the exercise of this responsibility (cf. BVerfGE 152, 152 <169 para. 42> − Right to be forgotten I).

146

This does not rule out that in certain cases the Charter of Fundamental Rights of the European Union may also be applicable. This can only be the case if the implementation of EU law under Art. 51(1) first sentence of the Charter of Fundamental Rights of the European Union is at issue. Domestic provisions may also constitute provisions implementing EU law within the meaning of Art. 51(1) first sentence of the Charter in cases where EU law affords Member States latitude in the design of such provisions, but also provides for a sufficiently substantial framework for this design, and it is ascertainable that the framework is to be specified in consideration of EU fundamental rights. In such a scenario, the EU fundamental rights are applicable in addition to the fundamental rights guarantees of the Basic Law. This does not fundamentally call into question the binding effect of the Basic Law (cf. BVerfGE 152, 152 <169 f. para. 44>).

147

Relying on the fundamental rights of the Basic Law as the primary standard of review when the implementation of EU law is at issue is informed by the fact that EU law, where it affords Member States legislative latitude, is generally not aimed at uniformity in fundamental rights protection; it equally rests on the presumption that the application of German fundamental rights simultaneously ensures the level of protection required under EU law, which seeks to accommodate diversity (vgl. BVerfGE 152, 152 <171 para. 49>). If the EU legislator affords the Member States legislative latitude for implementing EU law, it can be presumed that this also extends to the relevant fundamental rights protection. In this regard, it can generally be assumed that the European level of protection of fundamental rights, within the outer limits set by EU law, allows for fundamental rights diversity (BVerfGE 152, 152 <172 para. 50>).

148

The application of the fundamental rights of the Basic Law as the primary standard of review does not mean that the EU Charter of Fundamental Rights will not also be taken into consideration. Both the Basic Law and the Charter are rooted in a common European fundamental rights tradition. In line with this, the fundamental rights of the Basic Law must also be interpreted in light of the Charter (cf. BVerfGE 152, 152 <177 ff. para. 60>). Just as the Charter grew from the Member States’ different fundamental rights traditions – including Germany’s – and must be interpreted in harmony with these traditions (cf. Art. 52(4) of the Charter), the Charter must also be taken into consideration as a guideline for interpretation when it comes to the guarantees of the Basic Law (cf. BVerfGE 152, 152 <177 para. 61>).

149

The fundamental rights of the Basic Law do not without exception form the sole standard of review for domestic law implementing EU legislation which leaves legislative latitude. Constitutional review cannot rely solely on German fundamental rights as the applicable standard where, in exceptional cases, there is specific and sufficient indication that this standard might not guarantee the level of fundamental rights protection under EU law. Such a scenario requires domestic law that serves to implement EU law to be reviewed directly against the standard of the fundamental rights of the Charter, too (BVerfGE 152, 152 <179 para. 63>).

150

b) Whether a legal dispute is fully determined by EU law, or concerns the implementation of EU law, which leaves Member States latitude, is determined by whether the provisions of EU law at issue seek to afford Member States latitude, or whether their aim is the uniform application of the law (cf. BVerfGE 152, 216 <247 f. para. 80> – Right to be forgotten II). This question must be examined with reference to the specific provisions applicable to the case at hand and its context, rather than to the general area of law in question (cf. BVerfGE 152, 216 <246 f. para. 78>; 158, 1 <26 para. 42> − Ecotoxicity data).

151

The type of legal act chosen (Art. 288 TFEU) does not in itself give rise to definitive conclusions: regulations (Art. 288(2) TFEU), too, can contain opening clauses affording Member States latitude, just as directives (Art. 288(3) TFEU) can set definitive and binding standards (cf. BVerfGE 152, 216 <247 para. 79; 158, 1 <26 para. 43>).

152

Instead, the question of whether a legal relationship is fully determined by EU law or whether Member States are afforded latitude must be decided through the interpretation of ordinary EU law in accordance with the accepted methodology. It is decisive in this respect whether the relevant provisions of EU law seek to accommodate diversity and different value decisions or only serve to provide sufficient flexibility for particular subject areas, and the ordinary EU law ultimately aims for uniform application of the law (cf. BVerfGE 152, 216 <247 f., para. 80>; 158, 1 <27 para. 44>; CJEU, Judgment of 27 July 2019, Funke Medien NRW, C-469/17, EU:C:2019:623, para. 40 with further references). When it comes to directives, the Court of Justice of the European Union primarily examines the legislative objective and the recitals of the directive in question to determine whether its intended effect is limited to minimal harmonisation or seeks to comprehensively harmonise national law. If the provisions are unconditional, exhaustive and restrictive and the Member States may neither fall short of nor exceed the requirements imposed by the directive, it must be assumed that its aim is full harmonisation (cf. BVerfGE 152, 216 <231 f. para. 39>; cf. also CJEU, Österreichischer Rundfunk and Others, 20 May 2003, C-465/00 inter alia., EU:C:2003:294, para. 100; Lindqvist, 06 November 2003, C-101/01, EU:C:2003:596, para. 95 ff.; Breyer, 19 October 2016, C-582/14, EU:C:2016:779, para. 57).

153

2. Given these principles, the present constitutional complaint must be primarily assessed on the basis of the fundamental rights of the Basic Law. The legal dispute concerns § 11 in conjunction with §§ 1, 2, 7 and § 9(1) of the General Act on Equal Treatment. While these provisions fall within the scope of application of EU law (see a) below), they are not fully determined by EU law, since the relevant provisions of the Equal Treatment Directive, whose implementation is at issue here, afford the Member States latitude to design labour law in church-affiliated and religious organisations (see b) below). Within the limits set by EU law as interpreted by the Court of Justice of the European Union, this latitude afforded by ordinary law indicates fundamental rights diversity (see c) below). It is not ascertainable that the application of German fundamental rights falls short of the level of protection required under EU law (see d) below).

154

a) The provisions determinative for the outcome of the legal dispute underlying the constitutional complaint proceedings are provisions that serve to implement EU law. The question to be decided by the labour courts – whether the plaintiff is entitled to compensation by the complainant due to disadvantaging on grounds of religion – is governed by the provisions of the General Act on Equal Treatment, which serves to implement the Equal Treatment Directive. § 9(1) of the General Act on Equal Treatment – the central provision in the proceedings before the labour courts – is based on Art. 4(2) subpara. (1) of the Equal Treatment Directive (cf. paras. 6 f.).

155

b) It is not ascertainable that the provisions of EU law are intended to fully determine the law with regard to the relevant provisions in § 9(1) of the General Act on Equal Treatment. The specific design and the context of Art. 4(2) in conjunction with Art. 2(1) and (2) of the Equal Treatment Directive, the basis of the domestic provisions, afford the Member States latitude, which, due to the different legal traditions of Member States with regard to the relationship between the state and religion, aim to allow for fundamental rights diversity in the area of church or religious labour law.

156

aa) The Equal Treatment Directive makes reference to national practices in several provisions (cf. Art. 4(2), Art. 13(1) and (2), Art. 14), including in the wording of Art. 4(2) subpara. (1), which is the decisive provision here. The provision allows Member States to provide for or maintain national legislation according to which a difference of treatment on the basis of religion may be permissible under certain circumstances for churches and other public or private organisations the ethos of which is based on religion or belief. The Directive affords latitude to Member States that make use of this possibility by respecting Member States’ practices and legal traditions. Such exceptions from the prohibition of discrimination must be limited to what is necessary so as not to undermine the objectives of the Directive. The requirements for this necessary restriction of differences of treatment permissible under Art. 4(2) subpara. (1) of the Equal Treatment Directive are set out in the constituent elements of the provision as interpreted by the Court of Justice of the European Union (see in this regard CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 63; IR, 11 September 2018, C-68/17, EU:C:2018:696, para. 50 ff.). Insofar as Member States comply with these requirements, the implementation of provisions protecting the status of religious communities in labour law is covered by Member States’ latitude. According to the express reference in Art. 4(2) subpara. (1) second sentence of the Equal Treatment Directive, Member States can implement such provisions by invoking their respective constitutional provisions ([…]).

157

Similarly, the following Art. 4(2) subpara. (2) of the Equal Treatment Directive permits churches and other public or private organisations whose ethos is based on religion or belief, to impose duties of loyalty on individuals working for them, provided that the provisions of the Directive are otherwise complied with and the specific requirement is ‘in conformity with national constitutions and laws’. Especially the latter condition shows that the provision affords Member States latitude in implementing the Directive, which serves to maintain the diversity of practices with regard to the fundamental right to the freedom of religious organisations ([…]).

158

bb) (1) As per its title, the Equal Treatment Directive sets a general framework for equal treatment in employment and occupation within the European Union. This is also reflected in the concept of a minimum level of harmonisation pursued by the Directive, as set out in its 28th recital. According to this recital, the Directive merely lays down ‘minimum requirements’, and gives the Member States the option of introducing or maintaining more favourable provisions; at the same time, the implementation of the Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State (cf. the similar wording in Art. 8(2) of the Directive). The Directive also references the notion of a minimum level of harmonisation in many other provisions, such as Art. 8(1) (provisions more favourable to the protection of the principle of equal treatment), Art. 7(1) (positive action) or Art. 10(2) (burden of proof). Moreover, Member States may go beyond the characteristics of discrimination and minimum requirements provided for by the Directive within its scope of application, and some Member States have made use of this possibility ([…]). Art. 4(2) of the Equal Treatment Directive, the relevant provision here, sets a general framework, providing for European minimum standards regarding the protection against unequal treatment on grounds of religion in employment relationships governed by religion or belief, whilst leaving the design of labour law in this area to the Member States for the most part ([…]).

159

(2) Recent case-law of the Court of Justice of the European Union regarding the Equal Treatment Directive follows this approach. This can be interpreted as greater acceptance of fundamental rights diversity in those areas of labour law that are affected by unequal treatment on grounds of religion. In the cases WABE and Müller (CJEU, WABE and Müller, 15 July 2021, C-804/18 inter alia, EU:C:2021:594; cf. para. 16) and Commune d’Ans (CJEU, Commune d’Ans, 28 November 2023, C-148/22, EU:C:2023:924; cf. para. 18), the Court of Justice made express reference to the fact that the Directive serves to establish a general framework. This framework, which is also a reflection of the absence of a consensus at EU level, leaves a margin of discretion to the Member States as regards the place accorded to religion and beliefs within their respective systems (cf. CJEU, WABE and Müller, 15 July 2021, C-804/18 inter alia, EU:C:2021:594, para. 86; Commune d’Ans, 28 November 2023, C-148/22, EU:C:2023:924, para. 34). Member States should therefore be able to uphold national traditions and lines of case-law that leave more room for the religious freedom of individuals, for example by being more open to the wearing of an Islamic headscarf in the workplace. Similarly, in the Flemish ritual slaughter case (CJEU, Centraal Israëlitisch Consistorie van België and Others, 17 December 2020, C-336/19, EU:C:2020:1031) concerning the interpretation of Regulation (EC) 1099/2099 (Slaughter Regulation), the Court of Justice held that the Member States had a margin of appreciation in deciding whether they accord greater significance to animal welfare than to religious freedom – whose significance depends on national practices – and whether they therefore ban ritual slaughter (cf. CJEU, loc. cit., para. 67).

160

This general openness of EU law, as interpreted by the Court of Justice of the European Union, to existing national traditions with regard to religious freedom shows that fundamental rights diversity is permissible in this area and different assessments as to the significance accorded to religious freedom within the domestic legal order are therefore possible. This may work in two different ways in the interpretation of the Equal Treatment Directive. In view of Art. 8(1) of the Equal Treatment Directive, it may give rise to a stricter application of the prohibition of discrimination. At the same time, in view of Art. 4(2) of the Equal Treatment Directive, it may result in exceptions from the prohibition of discrimination on religious grounds, provided that such exceptions arise from the right to religious self-determination.

161

cc) The Directive’s 24th recital also shows that the Directive does not seek full harmonisation with regard to differences of treatment on grounds of religion, the area relevant here. This recital makes reference to ‘Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty’, in which the European Union has explicitly recognised that it ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’. When the Treaty of Lisbon entered into force, this declaration was adopted with almost identical wording in Art. 17(1) and (2) TFEU (cf. para. 5). Art. 17 TFEU expresses the neutrality of the European Union towards the way in which the Member States organise their relations with churches and religious associations and communities (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 58; IR, 11 September 2018, C-68/17, EU:C:2018:696, para. 48). In making reference to the national provisions of the Member States, the provision protects the national identities of the Member States in the area of constitutional law concerning religion and can therefore be considered a specific manifestation of the requirement to respect their identities enshrined in Art. 4(2) first sentence of the Treaty on European Union (TEU) ([…]). The EU legislator also gives effect to this protection in the Equal Treatment Directive by making reference to national practices, in particular in Art. 4(2) subpara. (1) (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, paras. 57, 50).

162

dd) Finally, the Directive’s legislative history contains indications that Art. 4(2) intends to leave the Member States latitude with regard to occupational requirements by religious or ideological employers. Before the adoption of the European Commission’s proposal (COM<1999> 565 final, OJ EC C 177 E of 27 June 2000, pp. 42 ff.) in the Council, there were lengthy and sometimes controversial discussions among the delegations in the Council and multiple amendments to the wording of what is now Art. 4(2) subpara. (1) of the Equal Treatment Directive. While the original proposal had provided for a rule according to which a difference of treatment did not constitute discrimination if it was based on a relevant characteristic related to religion or belief, and this characteristic constituted a ‘genuine’ occupational qualification, this rule was later tightened to the effect that the discriminating factor must be genuine and ‘determining’, that the rule must serve a ‘legitimate objective’ and that it must be a requirement that is proportionate; until the constituent elements were finally established in their current form (‘genuine, justified, legitimate’). Moreover, the amendments concerned wording referring to national provisions in the Member States. The rule in the current Art. 4(2) subpara. (2) of the Equal Treatment Directive regarding the permissibility of rules of conduct and duties of loyalty, which until then had only been set out in a recital, was incorporated into the text of the provision at the insistence of the Irish delegation ([…]).

163

Overall, it is clear from the legislative history that the EU legislator genuinely tried to strike an appropriate balance between the affected legal positions. On the one hand, the lengthy discussions and many amendments to the constituent elements of Art. 4(2) of the Equal Treatment Directive show that the protection of affected employees against discrimination was a key objective in the provision’s development. On the other hand, they also suggest that the interests of religious communities and the consideration of the different constitutional frameworks concerning religion in the Member States were equally important factors in creating the provision. This is indicated, in particular, by the express incorporation of a reference to legal provisions of the Member States, which – contrary to the Directive’s purpose to prevent discrimination – leads to the acceptance of different exceptions applicable in the Member States. Moreover, beyond the reference to Declaration No. 11 on the status of churches and non-confessional organisations in recital 24, a provision governing religious duties of loyalty was considered to be so important that the requirements applicable in this regard – including an express reference to ‘national constitutional provisions and principles’ – were laid down in a separate subparagraph, the present Art. 4(2) subpara. (2) of the Equal Treatment Directive ([…]).

164

c) Based on these considerations, the Equal Treatment Directive affords Member States latitude in the area of religious labour law, which is at issue here. In exercising this latitude, it must generally be assumed – in line with the Charter, which itself seeks to accommodate diversity (cf. BVerfGE 152, 152 <170 f. para. 48>) – that the European level of fundamental rights protection, within the outer limits set by EU law, allows for fundamental rights diversity.

165

aa) Member States are afforded latitude within the framework set by Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union. Thus, EU law provides that a difference of treatment on grounds of religion or belief in the case of occupational activities does not constitute discrimination where a person’s religion or belief constitute a genuine, legitimate and justified as well as proportionate (emphasis added) occupational requirement, by reason of the nature of these activities or of the context in which they are carried out. In interpreting these requirements, the Court of Justice of the European Union also draws on the Charter of Fundamental Rights, namely on freedom of religion in Art. 10 of the Charter (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 50), the prohibition of discrimination in Art. 21 (cf. CJEU, loc. cit., para. 75 ff.) and the guarantee of legal protection in Art. 47 (cf. CJEU, loc. cit., para. 78 f.). Freedom of religion as guaranteed in Art. 10 of the Charter is, in turn, interpreted in light of Art. 9 of the European Convention on Human Rights and the relevant case-law of the European Court of Human Rights (cf. CJEU, loc. cit., para. 61). This reference to the fundamental rights of the Charter in the interpretation of Art. 4(2) of the Equal Treatment Directive also limits the latitude afforded to Member States by the provision. What is required in this respect is an assessment of the individual activity concerned, which must be subject to effective judicial review (cf. CJEU, loc. cit., para. 59). The Member States must give effect to this limitation when they make use of the latitude afforded by Art. 4(2) of the Equal Treatment Directive.

166

bb) Within this framework, EU law leaves room not only for exceptions from the prohibition of discrimination for the requirement of membership of a specific religion or belief for certain activities, but, based thereon, also for a weighting of affected legal interests on the basis of the fundamental rights regimes and constitutional law concerning religion in the Member States. EU law does not provide for a specific and conclusive weighting of the affected legal interests, nor does it require specific outcomes, for striking a balance between the interests of religious employers and their employees as required by Art. 4(2) of the Equal Treatment Directive. Rather, it mandates that the criteria set out in the Directive are taken into account and the affected interests are reconciled in the balancing of interests (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, paras. 52 f.). In view of the different notions regarding the significance accorded to the right to religious self-determination within the state order, the assessments in the Member States may diverge.

167

d) It is not ascertainable that recourse to domestic fundamental rights means that the protection afforded falls short of EU law requirements regarding the protection against discrimination on religious grounds.

168

aa) Rather, such recourse is an expression of the fundamental rights diversity permitted by EU law in this area. This is not least reflected in the finding that Member States of the European Union have different approaches – as expressly recognised in primary law by Art. 17 TFEU – to the relationship between the state and religious communities, which range from strict separation on the one hand to both spheres being intertwined on the other ([…]). The risk of potential gaps in protection to the detriment of the prohibition of discrimination is addressed by the interpretation of national fundamental rights in light of the requirements arising from EU law.

169

bb) No different conclusion is warranted by the scope of the prohibition of discrimination in Art. 21 of the Charter of Fundamental Rights. While this prohibition, as an interest of employees and applicants affected by differences of treatment, may, according to the case-law of the Court of Justice of the European Union, also have a direct impact in private law relationships (see (1) below), Art. 3(3) first sentence of the Basic Law (see (2) below), in its manifestation in ordinary law as the General Act on Equal Treatment (see (3) below), guarantees a level of protection that is equivalent to the protection afforded by EU law in the area of religious labour law (see (4) below).

170

(1) Answering the question, referred by the Federal Labour Court, whether a national court is required to disapply a provision that cannot be interpreted in a manner that is consistent with Art. 4(2) of the Equal Treatment Directive, the Court of Justice of the European Union emphasises in its decision of 17 April 2018 that the prohibition of discrimination laid down in Art. 21 of the Charter is sufficient in itself to confer on individuals a right which they may rely on as such in (private) legal disputes between them in a field covered by EU law (cf. CJEU, Egenberger, 17 April 2018, C-414/16; EU:C:2018:257, paras. 76 f.). According to the Court of Justice, the prohibition of all discrimination on grounds of religion or belief is mandatory as a general legal principle. Individuals can directly invoke this right before the national courts, without implementation by EU or national law being required (cf. CJEU, loc. cit., para. 78). According to the Court of Justice, in such a situation the national court would be required to ensure the full effectiveness of the protection guaranteed by Art. 21 (in conjunction with Art. 47) of the Charter by disapplying if need be any contrary provision of national law (cf. CJEU, loc. cit., para. 79; […]). This notwithstanding, the national court must, in a dispute between individuals, balance competing fundamental rights – in the present case, the prohibition of discrimination and the right of religious autonomy are concerned. In doing so, it will have to take into consideration the framework set by the EU legislator in the Equal Treatment Directive (cf. CJEU, loc. cit., paras. 80 f.).

171

(2) Under Art. 3(3) first sentence of the Basic Law, no person may be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. The provision reinforces the general guarantee of the right to equality in Art. 3(1) of the Basic Law by subjecting the state, namely the legislator, to absolute prohibitions of differentiation (cf. BVerfGE 85, 191 <206>; 97, 186 <197>; 114, 357 <364>). In principle, religion may not be the starting point or provide justification for differences of treatment under the law, regardless of whether such treatment favours or disfavours the persons concerned. This also applies if a provision is not aimed at unequal treatment prohibited under Art. 3(3) first sentence of the Basic Law, but primarily – or entirely – pursues other goals (cf. BVerfGE 85, 191 <206>; 121, 241 <254>).

172

The guarantee of Art. 3(3) first sentence of the Basic Law constitutes an independent fundamental right. The prohibition of discrimination contains both a subjective fundamental right for individuals and an objective decision on values (cf. BVerfGE 17, 1 <27>; […]). Due to its close link to human dignity ([…]), the prohibition, as an interest of the common good laid down in the Constitution, is accorded special weight that is capable of justifying interferences with fundamental rights.

173

(3) The protection against discrimination has been extensively implemented in the ordinary law provisions of the General Act on Equal Treatment. These provisions implement the protection against discrimination in the area of labour law in particular and thereby restrict the occupational freedom of employers and the right to self-determination of religious and ideological communities or associations in their capacity as employers.

174

In this sense, the General Act on Equal Treatment gives comprehensive effect to the constitutional prohibitions of discrimination, including the prohibition of discrimination on grounds of religion or belief, for relationships between private parties, including labour law. The legislator considered the previous protection against discrimination in labour and civil law to be inadequate (cf. BTDrucks 16/1780, p. 23). With the provisions of the General Act on Equal Treatment, it intends to strengthen the protection against discrimination laid down in Art. 3(3) first sentence of the Basic Law in general private legal transactions and in labour law; in addition, the provisions also fulfil its obligation to implement various European directives (especially the Equal Treatment Directive). The interpretation and application of the provisions of the General Act on Equal Treatment must be based on this objective. This also applies to the understanding of § 9 of the General Act on Equal Treatment, which contains exceptions from the prohibition of discrimination in § 7(1) in conjunction with § 1 and § 2(1) of the General Act on Equal Treatment with regard to the right to self-determination of religious and ideological communities. These exceptions must be justifiable in view of the legislative objective of implementing the prohibition of discrimination in the context of a balancing of the affected constitutional interests.

175

(4) The balancing to be conducted based on these standards, which is also addressed by the Court of Justice of the European Union in the context of the application of Art. 21 of the Charter (cf. para. 170), ultimately results in a level of fundamental rights protection that corresponds to the level of protection guaranteed by EU law, and is therefore equivalent. Individuals can invoke the protection against discrimination before the national courts under the General Act on Equal Treatment. In interpreting and applying its provisions, the competent court must take into account the great importance of Art. 3(3) first sentence of the Basic Law under constitutional law, which the legislator intended to give effect when it created the General Act on Equal Treatment. By contrast, it is irrelevant for the question of whether national law guarantees a level of protection that is equivalent to EU law that individuals cannot directly rely on Art. 3(3) first sentence of the Basic Law in private legal transactions (cf. Federal Court of Justice, Judgment of 9 March 2012 - V ZR 115/11 - juris, para. 26; Judgment of 15 January 2013 - XI ZR 22/12 - juris, para. 28; […]). This is because what is decisive is not the doctrine governing national law, in this case, fundamental rights protection in private legal transactions – this falls to the Member States – but the fact that individuals ultimately enjoy the substantive level of protection guaranteed by EU law. This is achieved by applying and interpreting the provisions of the General Act on Equal Treatment with regard to the great constitutional significance of the prohibition of discrimination in Art. 3(3) first sentence of the Basic Law.

II. 

176

Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution (see 1. below) protect the right to religious self-determination in the present case (see 2. below). In accordance with Art. 140 of the Basic Law in conjunction with Art. 137(3) first sentence of the Weimar Constitution, this fundamental right is subject to the limits of ‘the law that applies to all’ (see 3. below). In interpreting and applying the relevant provisions of § 11 in conjunction with §§ 1, 2, 7 and 9 of the General Act on Equal Treatment, the courts must conduct a two-stage assessment to balance the right to religious self-determination with the legal interests that the limiting law serves to protect. In doing so, they must take into consideration the requirements of Art. 4(2) subpara. (1) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union (see 4. below). These requirements are binding by virtue of the precedence of EU law (see 5. below).

177

1. a) The Articles of the Weimar Constitution incorporated into the Basic Law by Art. 140 of the Basic Law hold meaning that is distinct from the freedom of religious organisations laid down in Art. 4(1) and (2) of the Basic Law; they form an inseparable element of the law on religions and on the relationship between the state and churches as provided for in the Basic Law, which has incorporated the fundamental right to religious freedom – a right that is essential for a liberal democracy – into the catalogue of fundamental rights without providing for a limitation clause. Both guarantees form an organic whole, with Art. 4(1) and (2) of the Basic Law serving as the key reference point for the system which determines the law on the relationship between the state and churches (cf. BVerfGE 137, 273 <303 para. 83> with further references).

178

Freedom of faith and the incorporated provisions of the Weimar Constitution interact in terms of interpretation. The Weimar provisions on church law functionally serve the claim and exercise of the fundamental right to religious freedom and must be interpreted in light of this fundamental right, since they govern the fundamental relationship between the state and the church (Art. 137(1) Weimar Constitution). On the other hand, the guarantee of Art. 4(1) and (2) of the Basic Law is specified and supplemented by Art. 140 of the Basic Law in conjunction with the incorporated Articles of the Weimar Constitution (cf. BVerfGE 137, 273 <303 f. para. 84> with further references).

179

Insofar as the scope of protection of the incorporated Articles of the Weimar Constitution and of the freedom of religious organisations in Art. 4(1) and (2) of the Basic Law overlap, Art. 137(3) first sentence of the Weimar Constitution, as the more specific provision, takes precedence over Art. 4(1) and (2) of the Basic Law to the extent that it subjects the right to self-determination of religious communities to the limitation of the law that applies to all. In the balancing of the conflicting interests, it must be taken into account that Art. 4(1) and (2) of the Basic Law guarantees the freedom of religious organisations without reservation, which means that the right to self-determination and the ethos of religious communities must be accorded particular weight (cf. BVerfGE 137, 273 <304 para. 85> with further references).

180

b) The right to religious self-determination is given special emphasis in Art. 137(3) first sentence of the Weimar Constitution. According to that provision, religious communities regulate and administer their affairs independently within the limits of the law that applies to all. This is a necessary and legally independent guarantee that supplements the freedom of religious life and activity of religious communities with the freedom to determine their organisation, rules and administration, which is indispensable for the exercise of their tasks (cf. BVerfGE 53, 366 <401>; 137, 273 <306 para. 90>).

181

aa) It is not only churches themselves, as determined by their legal structure, that are holders of the right to religious self-determination, but also all institutions, societies, organisations and agencies affiliated with them, if and to the extent that they are called upon, based on a church’s religious ethos, to fulfil the church’s mission and purpose in accordance with their purpose or task. This applies regardless of their legal form, even if the church-affiliated institution uses forms of organisation governed by private law (cf. BVerfGE 46, 73 <85 ff.>; 53, 366 <391>; 57, 220 <242>; 70, 138 <162>; 137, 273 <306 f. para. 92>). However, not all organisations or institutions that have a connection to the church are subject to the privilege of self-determination. For an organisation or institution to fall into this category, it must participate in fulfilling the mission of the church, must act in accordance with the creed of the established church, and have a special connection with its ministers and officials (cf. BVerfGE 46, 73 <87>; 70, 138 <163 ff.>; 137, 273 <307 para. 93>).

182

bb) (1) The right to self-determination encompasses all measures that serve to ensure the religious dimension of the work of a religious community in line with its religious ethos (cf. BVerfGE 70, 138 <164>; 99, 100 <125>; 137, 273 <307 para. 95>) and to preserve the direct link of its activities to the fundamental mission of the religious community (cf. BVerfGE 53, 366 <399>; 137, 273 <307 f. para. 95>). Thus, the freedom of ‘regulating’ and ‘administering’ also includes making legal provision for the performance of church functions through the conclusion of employment contracts (cf. BVerfGE 70, 138 <165>; 137, 273 <308 para. 95>; Chamber Decisions of the Federal Constitutional Court – Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 12, 308 <330>).

183

Religious communities can make use of the forms of organisation under private law available to anyone, they can create employment relationships and shape them in line with their ethos. The power to regulate their affairs as part of the right to self-determination of religious communities does not just include the organisation of church offices (Art. 140 of the Basic Law in conjunction with Art. 137(3) second sentence Weimar Constitution), but is a general principle governing the organisation of religious service (cf. BVerfGE 70, 138 <164 f.>; 137, 273 <308 para. 97>). It allows religious communities to organise their activities, including their internal organisational structure, to select their employees and to determine religious principles that serve as the basis of their activities (cf. BVerfGE 137, 273 <308 f. para. 97>).

184

(2) Art. 4(1) and (2) of the Basic Law contains a uniform and comprehensive fundamental right (cf. BVerfGE 24, 236 <245 f.>; 125, 39 <79>; 137, 273 <309 para. 98>). In addition to the freedom of the individual to profess their religion or belief in private and public, this also includes the freedom to associate with others who share the same faith or belief (cf. BVerfGE 42, 312 <323>; 53, 366 <387>; 83, 341 <355>; 105, 279 <293>; 137, 273 <309 para. 98>).

185

In the assessment of what must be considered the practice of religion and belief of religious organisations within the meaning of Art. 4(1) and (2) of the Basic Law in the individual case, an extensive interpretation of the term ‘practice of religion’ must be adopted to give effect to its central meaning (cf. BVerfGE 24, 236 <247 f.>; 137, 273 <309 f. para. 101>). It is true that the state must, in principle, interpret constitutional terms on the basis of neutral and universal aspects that are not bound by religious or ideological considerations (cf. BVerfGE 24, 236 <247 f.>). However, in cases where the legal order presupposes precisely such a religious or ideological ethos of the fundamental rights holder, as in the case of religious freedom, the state would violate the autonomy of the churches and their independence laid down in Art. 140 of the Basic Law in conjunction with Art. 137(3) of the Weimar Constitution if it did not take into account their ethos when interpreting the practice of religion as arising from the church’s creed (cf. BVerfGE 18, 385 <386 f>; 24, 236 <248>; 108, 282 <298 f.>).

186

That said, the mere assertion of a religious community that a matter is part of its own affairs is not sufficient in itself for the assumption that it falls within the scope of protection of the fundamental right in question. Rather, it is for the state bodies applying the law to assess the plausibility of such assertion (cf. BVerfGE 137, 273 <314 ff. para. 112 ff.>; […]). In this respect, religious communities have a burden of substantiation, the requirements of which vary in strictness depending on how plausible it is that a task or area of activity forms part of their own affairs ([…]).

187

(3) Based on the ethos of Christian churches, the practice of religion not only encompasses faith and worship, but also the freedom to develop and give effect to the Christian mission of proclaiming faith within the state and society. This includes, in particular, charity work, which is an essential task for Christians and is seen by churches as a key religious function (cf. BVerfGE 137, 273 <310 para. 102> with further references).

188

2. a) The complainant is a holder of the right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution. […]

189

aa) The institutional affiliation between the complainant and the Protestant Church in Germany is reflected in particular in the personnel composition of the complainant. Pursuant to § 9(1) of the By-Laws of the Evangelisches Werk für Diakonie und Entwicklung in the version of 14 June 2012 (cf. para. 36), a considerable proportion of the members of the conference of the complainant – a body that is responsible for important questions of principle – are representatives of the Protestant Church in Germany. […]

190

bb) The complainant participates in the realisation of the mission of the Protestant Church. The preamble to its by-laws states that the complainant ‘builds on the traditions of the social welfare organisation (Diakonisches Werk) of the Protestant Church in Germany’. § 5(3) of the by-laws sets forth specific tasks of the complainant, according to which it performs social welfare and missionary tasks within the meaning of the Basic Rules of the Protestant Church in Germany as well as tasks relating to development and humanitarian aid. […]

191

[…]

192

cc) The complainant also acts in accordance with the creed of the Protestant Church in Germany, which is shown in particular by the fact that it applies the law of the Protestant Church in Germany (cf. § 1(1) second sentence Guidelines for the Requirements of Employment under Private Law in the Protestant Church in Germany and the Social Welfare Organisation of the Protestant Church in Germany).

193

b) The hiring criterion at issue, ‘membership of a Protestant church or a church belonging to the Working Group of Christian Churches in Germany and identification with the social welfare mission of the church’, is covered by the guarantee of Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution. The complainant plausibly set out that the requirement of church membership that applies to all of its employment relationships in principle reflected the ethos of the church in accordance with the religious ethos of the Protestant Church in Germany at the time the position was advertised (see aa) below) and that the complainant followed this ethos when advertising the position (see bb) below).

194

aa) It is an expression of the religious character of service for the church that, by its nature, it is not limited to and directed at the exchange of work against remuneration. Such service is also based on the notion of active participation and engagement in the mission of proclaiming the faith of the church. All types of service for the church – regardless of whether it is performed in the framework of a public service and loyalty relationship or of an employment relationship under private law – have the task of fulfilling the biblical mission of proclamation and of active neighbourly love (cf. BVerfGE 137, 273 <311 f. para. 105>).

195

The understanding of the service for the church as a service within a connected community is reflected by the term ‘community of service’ used by the Protestant Church in Germany. Community in this sense means, according to the Christian faith, joint responsibility for the work of the church and in the church and its organisations (cf. BVerfGE 137, 273 <311 f. para. 105>). According to the notion of the Protestant Church in Germany, the community that serves the mission of the church binds both the church and its institutions and the civil servants and employees that work for them. It permeates all collective and individual employment provisions of the Protestant Church in Germany.

196

In order to ensure that individuals are committed to the community of service and perform their activities in line with this notion, § 3(1) of the Guidelines, in the version applicable at the time the position was advertised, provided that working for the Protestant Church and its social welfare organisation generally requires membership of a member church of the Protestant Church in Germany or a church with which the Protestant Church in Germany is affiliated. The complainant set forth that, according to the religious ethos of the Protestant Church in Germany (at the time), church membership was required, in principle, for any position of employment with the church or one of its organisations. In its view, both loyal cooperation within the church and credible representation to the outside world – which is at issue in the present case – required that employees feel connected to the beliefs of the church and that they authentically represent Christian beliefs.

197

bb) The complainant’s job advertisement, which expected that applicants are members of a Protestant church or a church belonging to the Working Group of Christian Churches in Germany and identify with the social welfare mission of the church, reflects this ethos of the Protestant Church in Germany. In advertising the position at issue, the complainant was bound by the requirements set out in the 2005 Guidelines.

198

3. In accordance with Art. 137(3) first sentence of the Weimar Constitution, the right to religious self-determination is subject to the limits of ‘the law that applies to all’ (see a) below). ’The law’ in this sense includes the provisions of the General Act on Equal Treatment (see b) below).

199

a) Pursuant to Art. 140 of the Basic Law in conjunction with Art. 137(3) first sentence of the Weimar Constitution, the right to religious self-determination is subject to the limits of the law that applies to all, including insofar as its scope of protection overlaps with that of the freedom of religious organisations. That said, the phrase ‘within the limits of the law that applies to all’ cannot be understood in the sense of the general limitation clauses applicable to some of the fundamental rights of the Basic Law (cf. BVerfGE 42, 312 <333>). Rather, in developing and specifying this limitation, the interaction of the right to religious self-determination and the purpose of the limitation must be given effect (cf. BVerfGE 53, 366 <400 f.>). In balancing the conflicting interests, it must therefore be taken into account that Art. 4(1) and (2) of the Basic Law guarantees the freedom of religious organisations without reservation, which means that the right to self-determination and the ethos of religious communities must be accorded particular weight (cf. BVerfGE 137, 273 <312 para. 106>).

200

b) aa) Pursuant to § 7 in conjunction with § 1 and § 2(1) no. 1 of the General Act on Equal Treatment, employees – a term that also includes all applicants for employment (cf. § 6(1) second sentence General Act on Equal Treatment) – may not be disadvantaged on religious grounds with regard to the selection criteria and recruitment conditions. In accordance with § 11 of the General Act on Equal Treatment, this also applies to the advertisement of open positions. The provisions serve to protect employees from discrimination. They aim to give effect to the prohibition of discrimination under Art. 3(3) first sentence of the Basic Law in the area of labour law. The prohibition of discrimination applies to all employers without exception.

201

Yet the General Act on Equal Treatment also takes into consideration the particular interests of religious communities and privileges them compared to other employers: § 9 of the Act provides for an additional ground for justifying discrimination on the basis of religion which only applies to religious and ideological communities and their organisations. § 9(1) of the General Act on Equal Treatment, which is the relevant provision for the recruitment constellation at issue here, allows for a difference of treatment on grounds of religion or belief with regard to employment by religious or ideological communities if a specific religion or belief constitutes a justified occupational requirement, having regard to the ethos of the religious community or organisation in question and by reason of its right to self-determination or by the nature of the particular activity. As a manifestation of the right to religious self-determination in ordinary law, the provision recognises the interest of church-affiliated employers to fill certain positions with persons who are members of the church.

202

bb) On the one hand, the provisions of the General Act on Equal Treatment must therefore be interpreted in light of the decision on values enshrined in the Constitution in favour of the right to religious self-determination (Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution). On the other hand, this should not result in the purpose of the General Act on Equal Treatment – protecting employees from discrimination on grounds of religion (Art. 3(3) first sentence of the Basic Law) – being neglected (cf. BVerfGE 83, 341 <356>; 137, 273 <314 para. 110 f.>). This interaction of religious self-determination and the purpose of legislative limitations must be given effect through a balancing of interests (cf. BVerfGE 137, 273 <314 para. 111> with further references).

203

4. According to the case-law of the Federal Constitutional Court (cf. BVerfGE 137, 273 <314 ff. para. 112 ff., 335 para. 163>), the reconciliation of conflicting legal interests in the area of church labour law requires a two-stage assessment (see a) below). The requirements laid down by the Court of Justice of the European Union in its judgment of 17 April 2018 concerning the interpretation of Art. 4(2) of the Equal Treatment Directive, which must be observed due to the precedence of EU law (see b) below), do not call into question this two-stage assessment as such. However, they require adaptation in the form of incorporation of the previous case-law regarding Art. 137(3) first sentence of the Weimar Constitution into the framework set by Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice (see c) below).

204

a) aa) The first stage of the assessment is a question of plausibility. It must be determined that it is plausible that the matter falls within the scope of protection of the right to religious self-determination. As set out above when assessing the extent of the guarantee of Art. 4 of the Basic Law, this serves to answer the question which matters are considered to be of a religious nature and what significance they have for the realisation of the religious ethos in accordance with the self-perception of the church. It is necessary to conduct this assessment prior to the balancing of interests that constitutes the second stage of the assessment. This is because the state, which is neutral in terms of religion and belief, is generally precluded from making such an appraisal, but the subsequent balancing of interests in the specific case requires knowledge of the significance of the matter for the church-affiliated employer.

205

Not only may the state not ignore the ethos of a religious community as defined by its beliefs if a religious employer plausibly demonstrates that a specific action or activity is the subject, part or objective of religious rules in accordance with the beliefs, doctrine, traditions and teachings of the religious community; the state must also base its own assessments and decisions on this ethos as long as it does not contradict fundamental constitutional guarantees (cf. BVerfGE 70, 138 <168>; 102, 370 <392 ff.>; 137, 273 <316 f. para. 118>).

206

bb) The second stage of the assessment involves an overall balancing of the interests of employees on the one hand and the right to religious self-determination on the other, which must be based on the outcome of the first stage (cf. BVerfGE 137, 273 <317 para. 120>).

207

In this balancing of interests, the conflicting legal positions must be given effect to the greatest possible extent in accordance with the principle of achieving maximum equilibrium between conflicting fundamental rights of equal weight (Grundsatz der praktischen Konkordanz). They must be weighted proportionately in terms of their interaction, which means that the restrictions imposed by labour law must be considered in light of the significance of Art. 140 of the Basic Law in conjunction with Art. 137(3) first sentence of the Weimar Constitution and Art. 4(1) and (2) of the Basic Law, and the conflicting interests of employees, which are protected by the relevant labour law, must be weighted in relation to the right to religious self-determination (cf. BVerfGE 137, 273 <319 para. 124>). In doing so, the ethos of the religious community must be accorded particular weight (cf. BVerfGE 53, 366 <401>; 66, 1 <22>; 70, 138 <167>; 72, 278 <289>; 137, 273 <319 f. para. 125>; BVerfGK 12, 308 <333>), which does not mean that the interests of the church generally take precedence over employees’ interests (cf. BVerfGE 70, 138 <170 ff.>; 137, 273 <319 f. para. 125>).

208

It is primarily for the ordinary courts to conduct such balancing of interests. The Federal Constitutional Court can then review whether the balancing satisfies constitutional requirements. However, the Federal Constitutional Court is only called upon to intervene if the ordinary courts have failed to recognise material elements of the right to religious self-determination and of the freedom of religious organisations on the one hand, or fundamental rights of employees on the other (cf. BVerfGE 137, 273 <320 para. 126>).

209

b) Due to the precedence of EU law (see aa) below), the framework set by Art. 4(2) of the Equal Treatment Directive as interpreted in the case-law of the Court of Justice of the European Union (see bb) below) must be taken into account in the balancing of the interests of the religious employer and employees.

210

aa) According to Art. 23(1) first sentence of the Basic Law, the Federal Republic of Germany participates in establishing and developing the European Union. The uniform application of EU law is crucial for the European Union to be successful (cf. BVerfGE 123, 267 <399>; 126, 286 <301>). It could not exist as a legal community if there were no guarantee of the uniform application and effectiveness of its law (cf. the foundational explanations of the CJEU, Judgment of 15 July 1964, Costa/E.N.E.L., C-6/64, EU:C:1964:66; established case-law). To this end, Art. 23(1) of the Basic Law lays down a commitment to ensure the effectiveness and enforcement of EU law (cf. BVerfGE 126, 286 <302>). Therefore, by empowering the Federation to transfer sovereign powers to the European Union (Art. 23(1) second sentence of the Basic Law), the Basic Law accepts the precedence of application accorded to EU law by the act of approval to the Treaties. In principle, this precedence of application of EU law over domestic law also applies with respect to domestic constitutional law (cf. BVerfGE 129, 78 <100>). If there is a persistent conflict in a specific case, the relevant domestic constitutional law is generally inapplicable (cf. BVerfGE, 126, 286 <301>). Further, the precedence of EU law also gives rise to the duty to interpret domestic law in conformity with EU law to the greatest possible extent (cf. BVerfGE 140, 317 <352 para. 77>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 4 November 2015 - 2 BvR 282/13 inter alia -, para. 11; […]). This serves to prevent conflicts from the outset.

211

bb) Through Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union, EU law lays down the criteria that must be taken into account in cases of a difference of treatment on grounds of religion or belief regarding occupational requirements for the reconciliation of the right to religious self-determination and the conflicting legal interests; in this case the right of employees not to be discriminated against on grounds of religion or belief during recruitment.

212

Firstly, what is necessary is an objectively verifiable link between the occupational requirement imposed by the employer (in this case church membership) and the activity concerned or the circumstances in which the activity is to be carried out (for example, proximity to proclamation of the Gospel or the need for credible representation to the outside world, cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 63). Moreover, the requirement of religious affiliation must appear necessary because of the importance of the occupational activity in question for the manifestation of the ethos of the religious community or the exercise of its right to religious self-determination (‘genuine’; cf. CJEU, loc. cit., para. 65). Furthermore, the requirement may not be used to pursue an aim that has no connection with the ethos or right to self-determination of the religious community (‘legitimate’; cf. CJEU, loc. cit., para. 66) and may not go beyond what is necessary for attaining the objective pursued. Finally, the requirement must be appropriate (‘proportionate’, cf. CJEU, loc. cit., para. 68). It falls to the religious communities to show, in the light of the factual circumstances of the individual case, that the supposed risk of causing harm to their ethos or to their right to self-determination is probable and substantial, so that imposing such a requirement is indeed necessary (‘justified’, cf. CJEU, loc. cit., para. 67).

213

In cases of dispute, the national courts are required to examine if these criteria have been satisfied and to reconcile the conflicting rights by way of a balancing of interests (cf. CJEU, loc. cit., para. 59). The aforementioned criteria of the directive are thus subject to full judicial review and must be taken into account in the balancing of interests. Merely the actual ethos of the religious community concerned is not subject to assessment by national courts, except in very exceptional cases (cf. CJEU, loc. cit., para. 61).

214

c) The binding requirements of Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union can be implemented by interpreting the relevant national provisions in conformity with EU law (see aa) below). They lead to a specification of the previously developed standards regarding the right to religious self-determination guaranteed by Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution, which, in turn, affects the interpretation of the ordinary law, i.e. in this case the relevant provisions of § 11 in conjunction with §§ 1, 2, 7 and 9 of the General Act on Equal Treatment, which serve to limit the right to religious self-determination. The standards developed by the Federal Constitutional Court for the two-stage assessment to be undertaken with regard to limitations are thereby clarified in such a way that the need for the occupational requirements at issue – in this case church membership – is examined in the individual case and in relation to the specific position, and this requirement is the subject of judicial review with regard to the type of activity concerned and the circumstances in which it is carried out (see bb) below). This assessment is followed, at the second stage, by a balancing of the affected legal interests (see cc) below).

215

aa) There are no insurmountable contradictions between EU law and domestic constitutional law with regard to the fundamental approach of the assessment. Just like the Federal Constitutional Court, the Court of Justice of the European Union distinguishes between impermissible theological assessments of the religious ethos by national courts and the ensuing acceptance of occupational requirements imposed as a reflection of the religious ethos on the one hand (cf. CJEU, loc. cit., para. 61), and the restriction, in light of the rule of law, of the exercise of the right to religious self-determination in the area of state law (concerning equal treatment) on the other (cf. CJEU, loc. cit., paras. 50 f.).

216

bb) (1) In principle, the assessment of plausibility as a basis for the two-stage assessment to be undertaken with regard to limitations must be maintained, including in light of the requirements arising from EU law. Both EU law and domestic constitutional law rest on the premise that the ethos of a religious community in itself is generally not subject to review. The considerations of the Court of Justice of the European Union regarding an appropriate reconciliation through a balancing of the conflicting interests of the employee and the religious community on the basis of the criteria set forth in Art. 4(2) of the Equal Treatment Directive (cf. CJEU, loc. cit., paras. 50-52, 64-68) all concern the assessment of whether an occupational requirement as a reflection of the religious ethos is justified, which is a separate assessment stage. They do not generally call into question that a church can, as a starting point, rely on its ethos to justify the requirement of church membership for a specific position; rather, they answer the question of whether the church and its interests can prevail over employees’ interest in equal treatment. Both the Court of Justice of the European Union and the Federal Constitutional Court assume that the ethos of the religious community must form the basis for the further assessment, and it therefore falls to the religious community to demonstrate, in accordance with its beliefs, teachings and traditions, why a specific activity requires church membership. Due to its obligation to be neutral in terms of religion and belief, the state is not able to examine the ethos of the religious community and to draw conclusions therefrom, for example with regard to the importance of a matter for realising this ethos. This means that the statements of the religious community to this effect must, in a first step, be examined only as to their plausibility, i.e. comprehensibility, conclusiveness and freedom from contradictions. This is in line with EU law.

217

(2) This assessment of plausibility is specified through the requirements imposed by the Court of Justice of the European Union in that the courts, when examining limitations, are no longer limited to reviewing whether the occupational requirement is a plausible expression of a belief based on the ethos of the religious community. Rather, they are required to determine whether the type of activities concerned or the context in which they are carried out objectively give rise to a direct link between the occupational requirement – in this case, church membership – and the activities concerned. This requires a consideration of the individual case that examines the affected position. It does not constitute a theological assessment of the interest invoked by the religious community, which national courts are barred from conducting, but an application of the limitations imposed on the right to religious self-determination by the limitation clause in Art. 137(3) first sentence of the Weimar Constitution.

218

(3) It falls to the affected religious community to demonstrate the link between the occupational requirement imposed by it and the specific activity, on the basis of its ethos and in a comprehensible and conclusive manner that is free from contradictions, so as to enable the courts, which are required to be neutral in terms of religion and belief, to review whether such a direct link exists. In this respect, too, the starting point for the review is the ethos of the religious community, which is exempt from assessment by the state. The extent to which an activity involves taking part in the determination and realisation of the ethos (cf. CJEU, loc. cit., para. 63) cannot be judged without knowledge of the beliefs as determined by the religious community and the conclusions to be drawn therefrom.

219

The standards for demonstrating this link depend on how obviously church membership is required for the specific vacancy. In principle, a stricter standard applies the wider the gap between the tasks to be undertaken in the position, and the factors that are determinative of the religious profile and the internal and external religious identity of the affected religious community. The general statement that the community of service requires church membership for any activity within the church and its organisations will typically not be sufficient to satisfy these standards.

220

(4) If the religious community plausibly set out, with reference to its beliefs, what significance is accorded to the occupational requirement and what constitutes the direct link between the occupational requirement imposed in the individual case – church membership – and the activity in question, this self-perception must be taken into account in the subsequent balancing of its interests against employees’ interests.

221

cc) (1) At the second stage of assessment, too, the requirements of EU law and of domestic constitutional law are in principle compatible. Both the Federal Constitutional Court and the Court of Justice of the European Union require an overall balancing of interests that is subject to full judicial review. According to the case-law of the Federal Constitutional Court, employees’ rights must be appropriately reconciled with the right to self-determination of the religious community (cf. BVerfGE 137, 273 <317 para. 120>). There is thus no domain that is exempt from review and in which religious communities would be allowed to generally require church membership for every position ([…]). Rather, the national courts must weigh the interest of the church, so that it can be considered in relation to the conflicting legal interest, in this case the protection against discrimination. In weighing these interests, the courts must accord sufficient weight to the submissions of the religious community concerned, but the state is not required to adopt the view of the religious community regarding the significance of its interest without any review. This means that the right to religious self-determination does not automatically prevail over the conflicting legal interests, but only subject to a proportionality assessment that considers the affected legal positions in the individual case. Such a proportionality assessment must be conducted in the interpretation and application of ordinary law provisions, in this case § 9(1) second alternative of the General Act on Equal Treatment, which are subject to the general limitation clause in Art. 137(3) first sentence of the Weimar Constitution.

222

(2) The way in which the balancing of interests is to be conducted has also been further specified by the criteria in Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union.

223

(a) In its previous case-law, the Federal Constitutional Court largely left open the way in which the right to religious self-determination and employee rights should be balanced against one another. It only stipulated that maximum equilibrium between the conflicting interests should be achieved through a consideration of their interactions.

224

(b) This abstract framework for review has now been specified further. The criteria ‘genuine’, ‘legitimate’, ‘justified’ and ‘proportionate’ within the meaning of Art. 4(2) of the Equal Treatment Directive as defined by the Court of Justice of the European Union are general criteria that overlap with the criteria of suitability, necessity and appropriateness used in the proportionality assessment in German fundamental rights doctrine. Based thereon, the occupational requirement at issue must be suitable for upholding the religious ethos in relation to the specific activities, which means that it may not pursue aims that have no connection with the ethos of the religious community. It must be necessary, which means that a need for the requirement must be ascertainable, due to the significance of the occupational activity for the proclamation of the Gospel or for upholding religious self-determination and that the requirement may not go beyond what is necessary to achieve this aim. Finally, the requirement must also be appropriate in the strict sense, i.e. the weight of the religious interests reflected therein must outweigh the conflicting constitutional interests – in this case protection against discrimination.

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(c) These requirements arising from EU law can be integrated into the two-stage assessment previously conducted by the courts, and the courts may continue to accord particular significance to the religious ethos due to its closeness to the freedom of religious organisations (Art. 4(1) and (2) of the Basic Law), which is guaranteed without reservation. This is in line with the openness of EU law for different fundamental rights regimes in the Member States (cf. para. 153) and the case-law of the Court of Justice of the European Union, which provides that the religious ethos, whose legitimacy may not be assessed, serves as the starting point for review and that a weighting in the framework of the balancing of affected interests in line with the relevant constitutional requirements is permissible. Under the Basic Law, it is decisive in this respect that Art. 137(3) first sentence of the Weimar Constitution takes precedence due to the special limitation insofar as the scope of protection of freedom of religious organisations overlaps with Art. 4(1) and (2) of the Basic Law. The freedoms laid down in Art. 4 of the Basic Law, which are guaranteed without reservation, are nevertheless given particular effect by the fact that the starting point of the balancing is the interest submitted by the church, in the exercise of its right to self-determination, which must be accorded particular weight in the balancing with conflicting legal interests. The following applies in this respect: The greater the significance of the affected position for the internal (e.g. proximity to the mission of proclamation, instruction about religious matters, pastoral care) and/or external (e.g. public image and credible representation, leadership role, mission) religious identity of the religious community, the greater the weight to be accorded to this circumstance and to the requirement of church membership derived therefrom by the church. Where such private-law employment positions that are significant for religious identity are at issue, the requirement of church membership imposed by the church will typically prevail over conflicting interests of affected employees (in this case protection against discrimination on religious grounds). Conversely, if the position is less relevant for upholding or realising the religious ethos, it is more likely that the protection against discrimination must prevail. The great constitutional significance of the protection from discrimination must be given effect in the balancing of interests.

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5. The adaptation, in line with the above considerations, of the interpretation and application of domestic law to the framework established by EU law regarding the latitude of Member States, as derived from the Equal Treatment Directive in accordance with the case-law of the Court of Justice of the European Union, is mandatory by virtue of the precedence of EU law. This precedence only ceases to apply under very narrow circumstances, in cases where the strict requirements for the application of domestic instruments for constitutional review of EU law are met (see a) below). This is not the case here (see b) below).

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a) aa) Unlike the supremacy of federal law, as provided for by Art. 31 of the Basic Law for the German legal order, the precedence of EU law cannot apply without exception. Rather, it only takes precedence insofar as the Basic Law and the act of approval permit or provide for a transfer of sovereign powers (cf. BVerfGE 73, 339 <375 f.>; 123, 267 <348 ff., 398>; 126, 286 <302>; 134, 366 <384 para. 26>). These standards correspond to the provisions set forth in the Treaty on European Union. The European Union is a community based on the rule of law (Art. 2 first sentence TEU; cf. CJEU, Judgment of 23 April 1986, Les Verts/Parliament, C-294/83, EU:C:1986:166, para. 23). Most notably, the European Union is bound by the principle of conferral (Art. 5(1) first sentence and Art. 5(2) first sentence TEU; cf. BVerfGE 142, 123 <199 para. 144> with further references) and by EU fundamental rights, and respects the constitutional identity of the Member States, on which it is founded (Art. 4(2) first sentence TEU, Art. 5(1) first sentence and Art. 5(2) first sentence TEU, Art. 6(1) first sentence and Art. 6(3) TEU; cf. BVerfGE 126, 286 <303>; 142, 123 <199 para. 144>). EU law continues to require conferral in the Treaties. If institutions, bodies, offices and agencies of the European Union wish to extend their powers, such extension requires a corresponding treaty amendment, which the Member States must effectuate and take responsibility for in line with their respective constitutional rules (cf. in particular Art. 48(4) subpara. (2), Art. 48(6) subpara. (2) third sentence, Art. 48(7) subpara. (3) TEU; cf. BVerfGE 142, 123 <199 para. 144>). Similarly, the rule-of-law principle (Art. 2 TEU, Art. 20(3) of the Basic Law) requires that the exercise of public authority must have a valid legal basis. Thus, measures of institutions, bodies, offices and agencies of the European Union that exceed EU competences are not based on a valid allocation of powers in the Treaties in conjunction with the corresponding act of approval and consequently cannot justify interferences with citizens’ rights and legal interests (cf. BVerfGE 164, 193 <283 para. 127> with further references – Act Ratifying the EU Own Resources Decision – Next Generation EU).

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bb) In the framework of a review on the basis of the ultra vires doctrine (ultra vires review), the Federal Constitutional Court is therefore entitled and required to review acts of institutions, bodies, offices and agencies of the European Union as to whether these acts evidently exceed the EU’s competences and, where necessary, to find that acts exceeding the EU’s competences are inapplicable for the German legal order (cf. BVerfGE 126, 286 <302>). This obligation of the Federal Constitutional Court to review substantiated ultra vires challenges regarding acts of EU bodies and other institutions must be coordinated with the mandate conferred upon the Court of Justice of the European Union to interpret and apply the Treaties and thereby ensure uniformity and coherence of EU law (cf. Art. 19(1) subpara. (1) second sentence TEU, Art. 267 TFEU). If any Member State could readily invoke the authority to decide, through its own courts, on the validity of EU acts, this could in practice undermine the precedence and jeopardise the uniform application of EU law (cf. BVerfGE 126, 286 <303>).

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To find an ultra vires act, competences must have been exceeded in a sufficiently serious manner. This standard ensures respect for the judicial mandate of the Court of Justice of the European Union enshrined in Art. 19 subpara. (1) second sentence TEU (cf. BVerfGE 154, 17 <92 Rn. 112> – PSPP asset purchase programme of the ECB; 164, 193 <283 f. para. 129> with further references). A serious exceeding of competences must be manifestly evident and of structural significance for the division of competences between the European Union and the Member States (cf. BVerfGE 154, 17 <90 para. 110>; 164, 193 <283 f. para. 129>).

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(1) A measure of an EU institution, body, office or agency manifestly exceeds the competences conferred on it (cf. BVerfGE 126, 286 <304>; 134, 366 <392 para. 37>; 142, 123 <200 para. 148>; 151, 202 <300 f. para. 151> – European Banking Union; 154, 17 <90 para. 110>) when, in applying common methodological standards, a competence cannot be established under any legal point of view (cf. BVerfGE 164, 193 <284 para 3130> with further references). At the same time, establishing that a measure manifestly exceeds EU competences does not require that absolutely no dissenting legal views have been put forward on the issue. An exceeding of competences can therefore be manifest even if it is the result of careful and meticulously reasoned interpretation of the law (cf. BVerfGE 164, 193 <284 para. 131> with further references).

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The interpretation of EU law, including the determination of the applicable methodological standards, primarily falls to the Court of Justice of the European Union (Art. 19(1) subpara. (1) second sentence TEU; cf. BVerfGE 142, 123 <205 para. 158>). The methodological standards developed by the Court of Justice of the European Union for the judicial determination of the law are based on the (constitutional) legal traditions common to the Member States, not least as they are reflected in the case-law of the Member States’ constitutional and supreme courts and the case-law of the European Court of Human Rights. In this regard, the wording of a legal provision, which is binding in several language versions, its regulatory purpose (effet utile) and the systematic context in which it exists must be given particular weight. The particularities of EU law give rise to considerable differences with regard to the importance and weight accorded to the various means of interpretation. Yet the mandate conferred in Art. 19(1) subpara. (1) second sentence TEU is exceeded where the traditional European methods of interpretation or, more broadly, the general legal principles that are common to the legal orders of the Member States are manifestly disregarded (cf. BVerfGE 142, 123 <206 f. para. 160>). Against this backdrop, it is not for the Federal Constitutional Court to substitute the Court of Justice’s interpretation with its own when faced with questions of interpreting EU law, even if the application of accepted methodology, within the established bounds of legal debate, would allow for different outcomes (cf. BVerfGE 126, 286 <307>). On the contrary, as long as the Court of Justice applies recognised methodological principles and does not act in a way that appears objectively arbitrary, the Federal Constitutional Court must respect judicial development of the law by the Court of Justice even when the Court of Justice adopts a view against which weighty arguments could be made (cf. BVerfGE 142, 123 <207 para. 161>).

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(2) A structurally significant shift of competences to the detriment of the Member States results where the exceeding of competences has a considerable impact on the principle of conferral and on the extent to which respect for the legal order, as part of the rule of law, is upheld. This is generally the case if the exercise of the competence invoked by the European Union is contingent upon a treaty amendment in accordance with Art. 48 TEU or the use of an evolutionary clause (cf. BVerfGE 126, 286 <309>; 151, 202 <301 para. 153>; 154, 17 <90 para. 110>), thus requiring action on the part of the German legislator pursuant to either Art. 23(1) second sentence of the Basic Law or the Act on the Bundestag’s and the Bundesrat’s Responsibility with Regard to European Integration (Integrationsverantwortungsgesetz) (cf. BVerfGE 164, 193 <284 f. para. 132> with further references).

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cc) The precedence of EU law generally also applies in relation to the fundamental rights contained within the Basic Law. This applies under the reservation that EU fundamental rights must guarantee effective protection of fundamental rights vis-à-vis the sovereign authority of the European Union, which must essentially be equivalent to the fundamental rights standards that are regarded as inalienable under the Basic Law, and must especially guarantee the general essence of German fundamental rights (Solange reservation). This must be determined by a general assessment in relation to the specific fundamental right of the Basic Law (cf. BVerfGE 73, 339 <387>; 102, 147 <162 f.>; 125, 260 <306>; 152, 216 <236 para. 47>; 155, 119 <163 para. 84> – Subscriber data II). As EU law currently stands, it must be assumed that these conditions are satisfied in principle (cf. BVerfGE 73, 339 <387>; 102, 147 <162 ff.>; 152, 216 <236 para. 48> with further references).

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dd) The instruments of review reserved by the Federal Constitutional Court must be exercised with restraint and openness to European law. In order to protect the proper functioning of the EU legal order and to prevent German authorities and courts from readily overriding the validity of EU law, the application of the instruments of review in a way that reflects the openness to European law requires adherence to the underlying legal precept of Art. 100(1) of the Basic Law, according to which it is for the Federal Constitutional Court alone to set aside the precedence of EU law with the consequence that EU law must be declared inapplicable in the Federal Republic of Germany in individual cases on the basis of constitutional law (cf. BVerfGE 123, 267 <354>; 140, 317 <337 para. 43>; 142, 123 <204 para. 155>). An application of the instruments of review which reflects the openness to European law additionally requires that, insofar as necessary, the matter is referred to the Court of Justice of the European Union for a preliminary ruling pursuant to Art. 267(3) TFEU, and the Federal Constitutional Court bases its review of the measure on the interpretation given by the Court of Justice of the European Union in its preliminary ruling (cf. BVerfGE 126, 286 <304>; 134, 366 <382 ff. para. 22 ff.>; 142, 123 <204 para. 156>; 152, 216 <243 f. para. 68, 70>; 164, 193 <287 f. para. 139>).

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b) Based on these standards, the judgment of the Court of Justice of the European Union of 17 April 2018 neither constitutes an ultra vires act (see aa) below), nor does it result in a legal situation that falls short of the fundamental rights standard that is inalienable under the Basic Law with regard to the right to religious self-determination (see bb) below).

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aa) The judgment of the Court of Justice of the European Union of 17 April 2018 does not constitute a legal act that falls outside the permissible scope. It does not amount to a manifest violation of the principle of conferral. The Court of Justice neither fails to recognise the significance of Art. 17 TFEU (see (1) below) nor the scope of its competence to combat discrimination in Art. 19(1) TFEU (see (2) below). Its interpretation of Art. 4(2) subpara. (1) of the Equal Treatment Directive is tenable (see (3) below).

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(1) The Court of Justice of the European Union sees Art. 17 TFEU as a requirement to conduct a balancing of interests, rather than as a derogation that would protect the law regarding the status of religious communities in the Member States from any encroachment by the law and case-law of the EU ([…]). This understanding of Art. 17 TFEU and its significance for the interpretation of Art. 4(2) of the Equal Treatment Directive is ultimately tenable.

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(a) The interpretation of Art. 17 TFEU is very controversial due to its open wording and the different traditions in the Member States when it comes to the law on the relationship between the state and churches.

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Firstly, the term ‘status’ as used in Art. 17 TFEU is disputed ([…]). Since the requirement to respect and not to prejudice religious communities is tied to this term, the scope of application of Art. 17 TFEU depends decisively on how broadly or narrowly the term is understood. Proponents of a broader interpretation emphasise that the provision serves to prevent encroachment on the concepts of the law on the relationship between the state and churches in the Member States, which diverge to a considerable degree in some cases ([…]). By contrast, proponents of a narrower interpretation point out, inter alia, that the term ‘status’ only covers the form and organisational structure of a church or other religious community and its relationship to the state ([…]).

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It is also controversial whether the prohibition on prejudicing religious communities in Art. 17 TFEU must be understood as a derogation or as a requirement to conduct a balancing of interests. Some legal scholars consider Art. 17 TFEU to be a derogation ([…]) and/or a negative competence ([…]). They argue that this is indicated by the express prohibition laid down in the law. By guaranteeing that it will not prejudice the status of churches and religious communities, the European Union grants Member States a core of competences that is beyond the reach of a balancing of interests ([…]).

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By contrast, most legal scholars consider Art. 17 TFEU to contain a requirement to conduct a balancing of interests ([…]). They argue that Art. 17 TFEU is not designed like a derogation ([…]). When the EU wants to exempt certain domains from the scope of EU law, it expressly lays down such derogations. In all other cases, in accordance with the systematic approach of European law, it must be assumed that a balancing of interests must be conducted ([…]). According to these legal scholars, this is in line with the notion that all objectives of primary law are of equal value and must be reconciled to the greatest possible extent in cases of conflict ([…]).

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(b) The Court of Justice of the European Union sees Art. 17 TFEU as a requirement to conduct a balancing of interests rather than a derogation, although it does not state this expressly or provide detailed reasons for this view (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 50 ff.). When using accepted methods of interpretation, this understanding of the provision is within the range of views expressed in legal scholarship.

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The interpretation adopted by the Court of Justice does not exceed the limits of the wording of Art. 17 TFEU. The brief provision contains indeterminate legal concepts without further explanation and a reference to national law, which is likewise not described further. The provision can thus be interpreted in different ways; it does not have to be assumed that Art. 17(1) TFEU contains a derogation due to its wording (‘does not prejudice’). As exceptions, derogations are clearly recognisable as such through their wording (cf., e.g., Art. 106(2) TFEU). Art. 17 TFEU precisely does not contain such clear wording.

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Its legislative history likewise permits different interpretations. […]

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The view of the Court of Justice of the European Union is also supported by systematic considerations and the intended purpose of the provision. […]

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(c) The outcome of the balancing of interests in the decision of the Court of Justice of the European Union also does not give rise to a manifest breach of competences. While it must be conceded that the outcome of the balancing focuses more on the protection against discrimination than on the right of autonomy of churches, the conclusion that the Court of Justice did not take into account Art. 17 TFEU in its balancing is implausible in light of the reasons attached to the judgment.

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The Court of Justice expressly emphasises the significance of striking an appropriate balance between employee rights and the right of autonomy of churches (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 50 ff.). It points to the neutrality obligation of the European Union laid down in Art. 17 TFEU (cf. CJEU, loc. cit., para. 58) and clarifies that state institutions are precluded from assessing whether the ethos of a church is legitimate (cf. CJEU, loc. cit., para. 61). The definitions of the elements ‘genuine’, ‘legitimate’, ‘justified’ and ‘proportionate’, which serve as criteria for the balancing of the interests of employees and of religious employers, are abstract and leave scope for national practices.

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(2) It is also not ascertainable that Art. 19(1) TFEU, according to which the European Union is competent to take appropriate action to combat discrimination, including based on religion or belief, within the limits of the powers conferred upon it by the Treaties, has been interpreted in a manifestly arbitrary manner. The outcome of the interpretation adopted by the Court of Justice is based on methods of interpretation recognised in EU law, namely historical, grammatical, systematic and teleological interpretation.

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In the Treaty of Amsterdam, the European Union was expressly empowered, through the insertion of Art. 13 of the EC Treaty (now Art. 19 TFEU), to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The European Union exercised the competence conferred on it in Art. 19 TFEU by, inter alia, adopting the Equal Treatment Directive. Pursuant to its Art. 1, the purpose of the directive is to ‘lay down a general framework for combating discrimination on the grounds of religion or belief (…) as regards employment and occupation’. The application of equal treatment law is not precluded by the fact that matters covered by it do not, as such, fall within the legislative competence of the European Union (the same conclusion was reached in the expert opinion of 14 January 2020 submitted by the Ministry of the Land Berlin for Integration, Labour and Social Affairs, which makes reference to CJEU, Sirdar, 26 October 1999, C-273/97, EU:C:1999:523, paras. 11-20). This is because EU law on protection against discrimination, which has always been regarded as a matter affecting many areas, can take effect in areas in which the EU does not have intrinsic competence, without encroachment on the integrity of the competences of the Member States. Equal treatment law has the potential to permeate a wide variety of legal matters – like church labour law in this case (the same conclusion was reached in the expert opinion of 14 January 2020 submitted by the Ministry of the Land Berlin for Integration, Labour and Social Affairs and the statement of 13 September 2019 by the plaintiff in the initial proceedings, each with reference to CJEU, Tanja Kreil, 11 January 2000, C-285/98, EU:C:2000:2).

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In principle, it is not objectionable that the Court of Justice of the European Union adopts a broad interpretation of the scope of application of Art. 19 TFEU and of the provisions of secondary law based thereon in the sense of the principle of effet utile (Art. 4(3) TEU). Art. 19 TFEU is an expression and part of the EU’s comprehensive protection against discrimination, which is laid down in many other provisions of primary law (cf., e.g., Arts. 18, 45, 49, 157 TFEU and Art. 21 of the Charter of Fundamental Rights). The great significance accorded to protection against discrimination in the European Union results from the assumption that all European societies are based on the principle that every individual is of equal worth and should have fair access to the opportunities of life ([…]).

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(3) The interpretation of the Equal Treatment Directive and of the derogation in Art. 4(2) subpara. (1) contained therein by the Court of Justice of the European Union likewise does not raise any material methodological concerns.

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The wording of the provision requires interpretation with regard to the criteria ‘genuine’, ‘legitimate’ and ‘justified’; in part, there are great discrepancies in the different language versions of the directive (cf. Opinion of Advocate General Tanchev of 9 November 2017, Egenberger, C-414/16, EU:C:2017:851, para. 113 ff.). In light of this, it is reasonable that the Court of Justice of the European Union, in interpreting these criteria, was guided by the systematic approach, the spirit and purpose and the legislative history of the provision (cf. EuGH, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 44). The outcome of its interpretation is based on the notion that Art. 4(2) of the Equal Treatment Directive must be understood as the result of a reconciliation between the right of affected employees not to be discriminated against on grounds of religion or belief and the right of autonomy of religious communities. The requirements imposed by the aforementioned provision therefore constitute the decisive criteria for the required balancing of interests in the individual case (cf. CJEU, loc. cit., para. 50 ff.). The Court of Justice plausibly reasons that the purpose of the Equal Treatment Directive, pursuant to its Art. 1, is to lay down a general framework for combating discrimination as regards employment and occupation and in this respect is an expression of the general prohibition of discrimination laid down in Art. 21 of the Charter (cf. CJEU, loc. cit., paras. 47, 75). However, it also focuses on the protection, required under primary law, of the affected interests of religious employers following from Art. 17 TFEU and Art. 10 of the Charter (cf. CJEU, loc. cit., para. 50). According to these considerations, Art. 4(2) of the Equal Treatment Directive contains an exceptionfrom the general prohibition of discrimination, which is accorded high standing in EU law. This exception is justified by the specific needs of religious communities arising from the activity in question in the context of an employment relationship with employers affiliated with a religious community.

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Insofar as the Court of Justice of the European Union requires effective judicial review of the criteria laid down in Art. 4(2) of the Equal Treatment Directive, its arguments, which are based on the general principles of EU law and the systematic approach of the directive, are also in accordance with accepted standards of legal methodology. The Court of Justice bases its reasoning for the need of effective judicial review on the binding effect of the requirements expressly imposed by Art. 4(2) of the Directive. It comes to the reasonable conclusion, based on the principle of effet utile, that the criteria determined by the Member States in the wording of the directive would be deprived of effect if, in the event of doubt as to compliance with these criteria, review were not the task of an independent authority (cf. CJEU, loc. cit., para. 46). It is therefore clear that the decisive argument for the need for effective judicial review is the existence of the provision in itself and the fact that it establishes legal principles; from the perspective of the Court of Justice, judicial review supplements the substantive provisions in terms of procedural law and the rule of law. To confirm this result, the Court of Justice recalls the great significance of the protection against discrimination in the EU legal system (cf. Art. 21 of the Charter), the systematic approach of the Directive, which, in its Art. 9, calls for the possibility of recourse to a court against a violation of the principle of equal treatment, and the guarantee, laid down in primary law in Art. 47 of the Charter, of effective judicial protection of rights arising from EU law (cf. CJEU, loc. cit., para. 47 ff.).

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bb) In light of the above considerations, it appears implausible that the EU law requirements imposed by the Equal Treatment Directive as interpreted by the Court of Justice of the European Union in its judgment of 17 April 2018 lead to a legal situation that does not guarantee those minimum standards of fundamental rights protection that are inalienable under Art. 23(1) first sentence of the Basic Law with regard to the right to religious self-determination. The fundamental elements of the right to religious self-determination are also recognised by the EU legal order in the area of individual labour law (see (1) below). This finding is confirmed by the relevant standards of the European Convention on Human Rights and the case-law of the European Court of Human Rights, which are binding on the Federal Republic of Germany and are also used by the Court of Justice of the European Union in the interpretation of Art. 4(2) of the Equal Treatment Directive and the guarantees of the Charter (see (2) below). In light of the foregoing, it can be ruled out that EU law falls short of the fundamental rights standards that are regarded as inalienable under the Basic Law in the area of religious self-determination (see (3) below).

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(1) The right to religious self-determination forms part of the fundamental rights standards regarded as inalienable under the Basic Law, which must also be upheld in the course of European integration. In guaranteeing religious freedom in Art. 10 of the Charter, EU law ensures the structural and substantive protection of the right to religious self-determination in primary law; according to the case-law of the Court of Justice of the European Union, religious communities can also rely on this right, which, inter alia, encompasses the autonomous decision on their own affairs (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, paras. 50 f., 61). Thus, in terms of the normative basis, EU law does not conflict with the principles of the Basic Law.

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The protection of religious self-determination, which is enshrined in primary law, is also given effect in secondary EU law, namely in Art. 4(2) of the Equal Treatment Directive. The provision allows religious communities, under circumstances specified therein, to treat applicants and employees differently based on their religion.

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The application of the criteria laid down in Art. 4(2) of the Equal Treatment Directive for the necessary balancing of religious interests against the conflicting interests of employees does not lead to an assessment by the state of the ethos of the religious community, which would be impermissible under the Basic Law. On the contrary, it is generally ruled out, according to the case-law of the Court of Justice of the European Union, that states assess the legitimacy of the ethos of religious communities as such (cf. CJEU, loc. cit., para. 61). This is not altered by the fact that national courts must weigh the legal interests of religious communities in a balancing of interests. This is because religious communities remain free to determine how their religious doctrine is to be interpreted, which programmes and services a religious community requires to realise this doctrine and how its specific implementation is organised (cf. Federal Labour Court, Judgment of 20 February 2019 - 2 AZR 746/14 -, juris, para. 76; […]). When national courts assess the degree of infringement in the balancing of interests required under Art. 4(2) of the Equal Treatment Directive, this in itself does not constitute an assessment of the ethos of the religious community.

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(2) The conclusion that the fundamental rights protection in relation to the right to religious self-determination provided for in the EU legal order has not fallen below the level regarded as inalienable under the Basic Law is also supported by the fact that the Court of Justice of the European Union relied on the relevant standards of the European Convention on Human Rights (see (a) below) when interpreting Art. 4(2) of the Equal Treatment Directive and the guarantees of the Charter (see (b) below).

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(a) According to the established case-law of the European Court of Human Rights, Art. 9 of the European Convention on Human Rights encompasses both the protection of the religious freedom of individuals and the guarantee of the freedom of religious organisations. Where the organisation of the religious community is a factor, Art. 9(1) of the Convention must be interpreted in light of Art. 11(1) of the Convention, which protects associative life from unjustified interference by the state. Without this protection of religious organisations by the Convention, all other aspects of the right of individuals to religious freedom would become vulnerable (cf. ECtHR <GC>, Hasan and Chaush v. Bulgaria, 26 October 2000, 30985/96, § 62; ECtHR, Metropolitan Church of Bessarabia et al. v. Moldova, 13 December 2001, 45701/99, § 118; Holy Synod of the Bulgarian Orthodox Church <Metropolitan Inokentiy> et al. v. Bulgaria, 22 January 2009, 412/03 and Others, § 103; Obst c. Allemagne, 23 September 2010, 425/03, § 44; Siebenhaar c. Allemagne, 3 February 2011, 18136/02, § 41; ECtHR <GC>, Sindicatul “Păstorul cel Bun” v. Romania, 9 July 2013, 2330/09, § 136; Fernández Martínez v. Spain, 12 June 2014, 56030/07, § 127).

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When two legal interests protected by Convention rights conflict – which is typically the case for dismissals –, a balance must be struck between the affected rights. In this respect, the European Court of Human Rights grants Member States a broad margin of appreciation, in particular when there is no consensus among the contracting parties to the European Convention on Human Rights regarding the significance of the affected rights or the means to protect it. This is the case in the area of the law on religion.

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Religious communities have the right to address risks to their religious self-determination based on their own assessment, and state authorities must accept this assessment in principle. That said, a mere claim by a religious community that its autonomy is actually or potentially at risk is not sufficient to justify interference with the legal interests of others. Rather, the religious community must show, in light of the circumstances of the individual case, that the asserted risk is probable and substantial, that the interference does not go beyond what is necessary to eliminate that risk and does not serve any other purpose unrelated to the exercise of the religious community’s autonomy. The national courts must ensure that these conditions are satisfied by conducting an in-depth examination of all the circumstances relevant in the individual case and a thorough balancing exercise between the competing interests at stake (cf. ECtHR <GC>, Sindicatul “Păstorul cel Bun” v. Romania, 9 July 2013, 2330/09, § 159; Fernández Martínez v. Spain, 12 June 2014, 56030/07, § 132; similarly ECtHR, Siebenhaar c. Allemagne, 3 February 2011, 18136/02, § 45).

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The European Court of Human Rights prescribes certain factors and criteria for the balancing of interests. Heightened duties of loyalty are permissible where they appear reasonable or acceptable with regard to the preservation of the credibility of the religious community (cf. ECtHR, Obst c. Allemagne, 23 September 2010, 425/03, § 50; Schüth v. Germany, 23 September 2010, 1620/03, §§ 69, 71; Siebenhaar c. Allemagne, 3 February 2011, 18136/02, § 46; ECtHR <GC>, Fernández Martínez v. Spain, 12 June 2014, 56030/07, §§ 134 f., 138; ECtHR, Travaš v. Croatia, 4 October 2016, 75581/13, §§ 89 ff.). It is also taken into consideration to what extent the religious community regards the conduct attributable to the person concerned to be incompatible with the beliefs of the religious community and therefore gives rise to a breach of duties of loyalty. The proximity between the person’s activity and the proclamatory mission of the religious community must also be taken into account (cf. ECtHR, Obst c. Allemagne, 23 September 2010, 425/03, § 51; Siebenhaar c. Allemagne, 3 February 2011, 18136/02, § 46; ECtHR <GC>, Fernández Martínez v. Spain, 12 June 2014, 56030/07, §§ 136 ff., ECtHR, Travaš v. Croatia, 4 October 2016, 75581/13, §§ 97 ff.; similarly Schüth v. Germany, 23 September 2010, 1620/03, §§ 69, 72). Furthermore, the European Court of Human Rights reviews whether the parties concerned had access to legal protection from the courts and whether the domestic courts took into account the essential circumstances of the case in the balancing of interests (cf. ECtHR <GC>, Fernández Martínez v. Spain, 12 June 2014, 56030/07, §§ 147 ff., ECtHR, Travaš v. Croatia, 4 October 2016, 75581/13, §§ 108 ff.; similarly ECtHR, Obst c. Allemagne, 23 September 2010, 425/03, §§ 45 ff.; Schüth v. Germany, 23 September 2010, 1620/03, § 59; Siebenhaar c. Allemagne, 3 February 2011, 18136/02, §§ 42 ff.)

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(b) Thus, there are no significant differences between the standard of protection of the European Convention on Human Rights and of EU law in relation to church labour law. Both legal regimes have nearly congruent definitions of the scope of protection of the freedom of religious organisations and in a comparable way seek reconciliation, based on similar criteria, of conflicting interests in case of a conflict with other fundamental rights ([…]).

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In determining the significance and scope of the guarantees in Art. 10 of the Charter, the Court of Justice of the European Union has been guided by the corresponding guarantees of the Convention – in this case Art. 9 in conjunction with Art. 11 of the Convention – and by the case-law of the European Court of Human Rights in this regard (cf. Art. 52(3) first sentence of the Charter). This is shown by the fact that the Court of Justice of the European Union in principle considers the right to religious self-determination to be part of Art. 10(1) of the Charter, with reference to the corresponding guarantee contained in Art. 9 of the Convention (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 50; Centraal Israëlitisch Consistorie van België and Others, 17 December 2020, C-336/19, EU:C:2020:1031, para. 56 f.). In its judgment of 17 April 2018, it confirms that a core element of the right to religious self-determination – the freedom of the church to determine its ethos, without assessment by the state, and to base the church’s own actions on this ethos – must be taken into account when the presence of the prerequisites of Art. 4(2) of the Equal Treatment Directive is examined, and makes reference to the relevant case-law of the European Court of Human Rights in this regard (cf. CJEU, loc. cit., para. 61). The wording chosen by the Court of Justice of the European Union is almost identical to that used in the referenced judgment of the European Court of Human Rights (cf. ECtHR, <GC>, Fernández Martínez v. Spain, 12 June 2014, 56030/07, § 129), and is merely adapted to the terminology of Art. 4(2) of the Equal Treatment Directive as the relevant provision in the case ([…]).

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In the context of the interpretation of relevant secondary law (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 65 ff.), the Court of Justice of the European Union is also guided, at least implicitly, by the relevant standards of the European Convention on Human Rights. A comparison of the considerations of the European Court of Human Rights regarding the scope and limits of the right to religious self-determination following from Art. 9 in conjunction with Art. 11 of the Convention (cf. ECtHR <GC>, Sindicatul “Păstorul cel Bun” v. Romania, 9 July 2013, 2330/09, § 159; Fernández Martínez v. Spain, 12 June 2014, 56030/07, §§ 127 ff.) with the wording used by the Court of Justice in its judgment of 17 April 2018 reveals a striking similarity in the phrasing used. For instance, the interpretation of the term ‘legitimate’ within the meaning of Art. 4(2) of the Equal Treatment Directive, according to which the occupational requirement in question may not be used to pursue an aim that has no connection with the religious or non-confessional ethos or with the exercise by the church or organisation of its right of autonomy (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 66), has almost the same wording as the requirement arising from the Convention that an interference with the rights of those affected arising from the exercise of the right to religious self-determination may not serve any purpose unrelated to the exercise of the religious community’s autonomy (cf. ECtHR <GC>, Fernández Martínez v. Spain, 12 June 2014, 56030/07, § 132). More similarities arise when it comes to the Court of Justice’s interpretation of the term ‘justified’ in Art. 4(2) of the Equal Treatment Directive (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 67) and the requirements arising from the Convention regarding the general possibility of a review by the courts and the obligation on the religious community to show, in the light of the circumstances of the individual case, that the alleged risk to religious self-determination is probable and substantial (cf. ECtHR <GC>, Fernández Martínez v. Spain, 12 June 2014, 56030/07, § 132).

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(3) In light of the foregoing, it can be ruled out that EU law falls short of the fundamental rights standards that are regarded as inalienable under the Basic Law in relation to the right to religious self-determination in individual labour law. The complainant’s submission as to the fact that the weighting of the interests of the church not only depends on the ethos of religious communities, but is subject to examination by national courts, also does not mean that the standards under EU law fall short of the fundamental rights protection regarded as inalienable under the Basic Law. In this respect, it is true that the criteria laid down in Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union restrict the freedom of religious communities to determine occupational requirements and thereby tend to strengthen the protection against discrimination of employees. However, this does not mean that the legal interests of religious communities are disregarded in the balancing of interests – only that they do not readily prevail over other legal interests (cf. Federal Labour Court, Judgment of 20 February 2019 - 2 AZR 746/14 -, juris, para. 75; […]). If religious communities make use of the means of state law in the area of church labour law, they do not operate in a legal vacuum. Any restrictions of the legal interests of others must be subject to review and a balancing of interests in view of fundamental rights protection; according to the case-law of the Federal Constitutional Court, too, there is no scope for ‘general precedence’ of the interests of religious communities ([…]). All in all, the protection of religious self-determination under EU law shifts the emphasis compared to previous German case-law in that the former requires a more in-depth examination and balancing of the affected legal interests than the latter; ultimately, however, the protection afforded by the two legal orders is structurally comparable.

III. 

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The judgment of the Federal Labour Court of 25 October 2018 violates the complainant’s right to religious self-determination following from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution. While the judgment of the Federal Labour Court of 25 October 2018 does not raise concerns under the constitutional standards as specified by EU law insofar as it assumes that § 9(1) first alternative of the General Act on Equal Treatment is inapplicable (see 1. below), it violates Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution, because the balancing of interests conducted in the context of the application of § 9(1) second alternative of the General Act on Equal Treatment fails to give the constitutionally required effect to the complainant’s right to religious self-determination (see 2. below).

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1. The challenged judgment of the Federal Labour Court does not violate Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution insofar as it does not apply the ground for justification in § 9(1) first alternative of the General Act on Equal Treatment, created for religious employers, due to its incompatibility with EU law.

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In the challenged decision, the Federal Labour Court assumes that § 9(1) of the General Act on Equal Treatment cannot be interpreted in conformity with Art. 4(2) of the Equal Treatment Directive in accordance with the case-law of the Court of Justice of the European Union (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 71). In its view (cf. Federal Labour Court, Judgment of 25 October 2018 - 8 AZR 501/14 -, juris, paras. 25-43), the justification of a difference of treatment on grounds of religion pursuant to § 9(1) first alternative of the General Act on Equal Treatment depends on the ethos of the religious community, and not on the type of activity or the circumstances under which it is carried out. Based on this interpretation, § 9(1) first alternative of the General Act on Equal Treatment is incompatible with the requirements arising from Art. 4(2) of the Equal Treatment Directive and must therefore be disapplied in a legal dispute between private parties (cf. CJEU, loc. cit., paras. 79, 82 with reference to Arts. 21 and 47 of the Charter). This approach of the Federal Labour Court is not objectionable under constitutional law (cf. BVerfGE 126, 286 <311> regarding the ‘negative’ effects of a directive with regard to domestic provisions that are incompatible with the directive).

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2. However, the reasons given in the judgment of the Federal Labour Court violate Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution because the court did not have sufficient regard to the scope of the right to religious self-determination in the balancing of interests required under § 9(1) second alternative of the General Act on Equal Treatment. In interpreting the constituent elements of § 9(1) second alternative of the General Act on Equal Treatment, which serve the purpose of balancing the interests of employees against the interests of a religious employer, the Federal Labour Court is rightly guided by Art. 4(2) of the Equal Treatment Directive and the specification of that provision in the judgment of the Court of Justice of the European Union of 17 April 2018 (see a) below). However, it does not take sufficient account of the latitude in terms of fundamental rights afforded to the Member States in Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice, nor of the principles of the two-stage assessment developed by the Federal Constitutional Court, which continue to apply, albeit in modified form to implement EU law requirements; this means that the Federal Labour Court replaces the complainant’s perception of a credible representation of the ethos of the church with its own (see b) below). In doing so, the Federal Labour Court imposes overly strict requirements at the expense of the complainant’s right to religious self-determination that, in its view, must be taken into account according to the case-law of the Court of Justice of the European Union (see c) below).

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a) The Federal Labour Court interprets § 9(1) second alternative of the General Act on Equal Treatment in accordance with the case-law of the Court of Justice of the European Union as meaning that a difference of treatment on grounds of religion or belief is permissible if a specific religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the religious community or organisation in question and by the nature of the particular activity or the circumstances under which it is carried out.

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b) However, the Federal Labour Court fails to recognise that Art. 4(2) of the Equal Treatment Directive, as interpreted by the Court of Justice of the European Union in its judgment of 17 April 2018, affords latitude to domestic law, within which the fundamental rights requirements arising from Art. 4(1) and (2) in conjunction with Art. 140 of the Basic Law and Art. 137(3) first sentence of the Weimar Constitution apply. The failure to take into account this latitude means that the Federal Labour Court does not accord the constitutionally required significance to the right to religious self-determination when balancing it against the plaintiff’s right not to be discriminated against on grounds of her religion.

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aa) Based on the specification of the case-law of the Federal Constitutional Court by the requirements imposed by the Court of Justice of the European Union, the review to be conducted at the first stage of the assessment with regard to § 9(1) second alternative of the General Act on Equal Treatment must include the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer, in this case church membership, and the activity in question. In this context, such a determination must be made with regard to the requirement which follows from the ethos of the religious community according to its own submissions, which must be reviewed as to their plausibility.

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bb) In implementing these requirements, the Federal Labour Court does establish that there is a direct link between the occupational requirement of membership of the Protestant Church or a church belonging to the Working Group of Christian Churches in Germany and the performance of the activity in question (cf. Federal Labour Court, Judgment of 25 October 2018 - 8 AZR 501/14 -, juris, para. 72). It takes into account the complainant’s submissions (cf. Federal Labour Court, loc. cit., paras. 17, 78) and the job advertisement, which state that the job holder was required to credibly represent the complainant to politicians, the public and human rights organisations and had to ensure that – from a specifically Christian perspective and the view of humanity based on it – existing deficits in the implementation of the UN Anti-Racism Convention in Germany and appropriate options for action were identified and communicated, and incorporated into the parallel report (cf. Federal Labour Court, loc. cit., paras. 73 ff. and 77 ff., in particular para. 79). […]

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However, in subsequently applying § 9(1) second alternative of the General Act on Equal Treatment to the case at hand, the Federal Labour Court does not base the balancing of interests on this ethos of the church with regard to the objective link between the vacant position and the requirement of church membership. In interpreting and applying the constituent elements of § 9(1) second alternative of the General Act on Equal Treatment, the court thus does not accord the particular significance to the right to self-determination that is granted to it by constitutional law within the framework set by EU law.

276

Rather, the Federal Labour Court disregards the very fact that it previously conceded, namely that the successful applicant was required to, inter alia, put forward the complainant’s specifically Christian perspective regarding the requirements of the UN Anti-Racism Convention, where necessary also by addressing conflicting positions of other organisations involved in the creation of the report. The Federal Labour Court sets aside the fact that the complainant wished to entrust this task – the credible and authentic representation of the complainant’s ethos in the framework of the creation of the parallel report – only to a person who, through their church membership, personally embodies the associated beliefs that are constitutive for religious identity from a Christian perspective; the court argues that the profession of the Christian ethos is only relevant insofar as differences of opinion with regard to the implementation of the UN Anti-Racism Convention could be expected. According to the court, it is sufficient in this respect that the successful applicant knows the main facts and foundations of the church’s recruitment practice under constitutional, international and EU law and has profound knowledge of church labour law (Federal Labour Court, loc. cit., paras. 89, 93). The court also finds that it is decisive that the successful applicant was part of a continuous internal opinion-forming process within the organisation and therefore could not act independently (Federal Labour Court, loc. cit., paras. 101 f.).

277

In advancing these arguments, the Federal Labour Court replaces the complainant’s perception of a credible representation of the ethos of the church to the outside world in the present context with its own. The court does not consider that the complainant’s perception may not have been plausibly set out. It clearly also does not assume that this is the case (cf. Federal Labour Court, loc. cit., para 79).

278

2. In light of its failure to take into account the Christian profile of the vacancy in question, which has been plausibly – and thus sufficiently – set out, the Federal Labour Court then overemphasises the requirements to be taken into account according to the case-law of the Court of Justice of the European Union in the application of the constituent elements of § 9(1) second alternative of the General Act on Equal Treatment at the expense of the right to religious self-determination. By replacing the complainant’s view of the position advertised and its link to church membership with its own view, the Federal Labour Court does not accord the constitutionally required weight to the complainant’s interest in incorporating a Christian perspective on potential human rights violations in the parallel report on the UN Anti-Racism Convention.

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aa) The considerable doubts raised by the Federal Labour Court as to the occupational requirement of membership of the Protestant Church or a church belonging to the Working Group of Christian Churches in Germany meeting the criterion of being ‘genuine’ within the meaning of § 9(1) second alternative of the General Act on Equal Treatment do not indicate that the complainant’s right to religious self-determination was included in the assessment as required. The Federal Labour Court does concede that the complainant ‘in principle’ had an interest in advancing its specific position, based on its Christian ethos, regarding the implementation of the UN Anti-Racism Convention (cf. Federal Labour Court, loc. cit., para. 85). In the balancing of interests, however, this interest in the credible representation of the complainant’s ethos by a job holder who is a member of the church is diminished by the court without sufficient reason.

280

(1) […]. Ultimately, the Federal Labour Court bases its doubts as to the need for church membership in the case […] on the consideration that, based on the job description, the job holder neither could nor should have independently contributed the complainant’s specific perspective to the report anyway. This contradicts the requirement, both expressly set out in the job advertisement and submitted by the complainant, that the job holder would be required to represent the complainant to politicians, the public and human rights organisations.

281

(2) Moreover, the Federal Labour Court uses the parallel report on the implementation of the UN Anti-Racism Convention as a basis for its considerations of whether church membership was essential for the activity in question, and concludes from the contents of the statement later actually made in the parallel report that the occupational requirement was not necessary (cf. Federal Labour Court, loc. cit., para. 89). This contradicts its other considerations, which correctly view the point in time at which the job was advertised as solely relevant in answering the question whether the complainant violated the prohibition of discrimination. The ex post consideration of the criterion ‘genuine’, which deviates from these considerations, is incompatible with the right to religious self-determination. The question of whether an occupational requirement is genuine for a particular activity cannot be answered based on an ex post assessment of the actual actions of the successful applicant. […]

282

(3) It is also not ascertainable that the Federal Labour Court accorded appropriate weight to the task of the complainant’s representation to the outside world, from which it previously derived the direct link between the occupational requirement of church membership and the vacancy. Firstly, the Federal Labour Court does not address in detail to what extent a recruited policy officer could credibly counter the criticism of other organisations involved, in particular regarding the recruitment policies of the church, only on the basis of sound legal knowledge (e.g. of church labour law) . Secondly, the Federal Labour Court, in its balancing of interests, fails to take sufficient account of the fact that the complainant seeks a credible and authentic representation of its own position to the outside world, which it bases on church membership. In doing so, the Federal Labour Court disregards that the Court of Justice of the European Union, in its judgment of 17 April 2018, expressly stated that the need to ensure a credible presentation of the church to the outside world can justify a difference of treatment on grounds of religion (cf. CJEU, Egenberger, 17 April 2018, C-414/16, EU:C:2018:257, para. 63). […]

283

bb) The Federal Labour Court also does not give sufficient effect to the right to religious self-determination insofar as it holds that the occupational requirement imposed by the complainant is not justified.

284

(1) The Federal Labour Court presumes that the complainant has not demonstrated a risk of an impairment to its right of autonomy or to its ethos. In its reasoning, it argues, inter alia, that the complainant’s right of autonomy is not affected, because the tasks associated with the creation of the report do not involve the exercise of the right to self-determination (cf. Federal Labour Court, Judgment of 25 October 2018 - 8 AZR 501/14 -, juris, para. 97). […] In this regard, too, it is not ascertainable that the complainant’s view of the content and significance of the task was taken into account in the assessment at all. […]

285

(2) For the rest, the Federal Labour Court considers it to be decisive that the job holder was unable to act independently […] on matters concerning the ethos. In this respect, the court bases its assessment on the job advertisement, according to which the successful applicant would be part of a continuous internal opinion-forming process whilst working at the complainant’s Migration and Social Affairs Centre (cf. Federal Labour Court, loc. cit., paras. 101 f.). However, it fails to take into consideration the requirements following from the job advertisement – that the applicant would be expected to represent Diakonie Deutschland in project-related dealings with politicians and the public, had to be ‘willing to accept responsibility’ and ‘to travel frequently’.

E. 

286

Pursuant to § 95(2) of the Federal Constitutional Court Act, the judgment of the Federal Labour Court is reversed and the matter is remanded to the Federal Labour Court.

287

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