Church membership as a prerequisite for employment
In an order published today, the Second Senate of the Federal Constitutional Court granted the constitutional complaint of a church-affiliated employer against a judgment of the Federal Labour Court (Bundesarbeitsgericht). In the challenged judgment – which was preceded by a preliminary ruling from the Court of Justice of the European Union – the Federal Labour Court had ordered the complainant to pay compensation because it had not extended an invitation to a job interview to a candidate without religious affiliation and the resulting presumption of discrimination against her on grounds of religion could not be justified and had not been rebutted.
The judgment of the Federal Labour Court 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 (Grundgesetz – GG) and Art. 137(3) first sentence of the Weimar Constitution (Weimarer Reichsverfassung – WRV), because the balancing of interests conducted in the context of the application of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz – AGG) – the limitation clause in this regard – fails to give the constitutionally required effect to the complainant’s right to religious self-determination.
In its order, the Second Senate of the Federal Constitutional Court sets forth that the judgment of the Court of Justice of the European Union handed down in the preliminary ruling procedure must be taken into account when balancing the interests of religious employers and of employees. This leads to a specification of the standards previously developed by the Federal Constitutional Court for the two-stage assessment to be undertaken when restrictions of the right to religious self-determination are at issue. The interpretation and application of domestic law must, by virtue of the precedence of EU law, be adapted to the requirements set by EU law. In the present case, the precedence of EU law does not cease to apply, given that the judgment of the Court of Justice of the European Union does not amount to an ultra vires act. There are also no insurmountable contradictions between domestic constitutional law and EU law with regard to the scope of the right to the self-determination of religious communities in relation to labour law.
The Senate reversed the challenged judgment and remanded the matter to the Federal Labour Court.
Facts of the case:
The constitutional complaint concerns the question under what conditions a church-affiliated employer may require church membership for a specific vacancy and to what extent national courts can review such a requirement in light of the right to religious self-determination.
I. The complainant is a church-affiliated employer. In a job advertisement for a project vacancy, the complainant stated, inter alia, the following: ‘We presume that applicants are members of a Protestant church or a church belonging to the Working Group of Christian Churches in Germany (Arbeitsgemeinschaft Christlicher Kirchen in Deutschland – ACK) and identify with the social welfare mission of the church.’ The plaintiff in the initial proceedings (hereinafter: the plaintiff), who has no religious affiliation, applied for the vacancy without stating any religious affiliation. When she was not invited to a job interview, she filed an action with the Labour Court (Arbeitsgericht), requesting that the complainant pay compensation pursuant to § 15 of the General Act on Equal Treatment because she had been disadvantaged on religious grounds. The Labour Court awarded compensation to the plaintiff, but the Higher Labour Court (Landesarbeitsgericht) dismissed the plaintiff’s action upon an appeal (Berufung) lodged by the complainant. The Higher Labour Court held that the plaintiff was not entitled to compensation because the difference of treatment on religious grounds was justified by § 9(1) first alternative of the General Act on Equal Treatment.
II. In the context of the appeal on points of law (Revision) filed by the plaintiff, the Federal Labour Court requested a preliminary ruling from the Court of Justice of the European Union pursuant to Art. 267 of the Treaty on the Functioning of the European Union (TFEU). The Federal Labour Court found that it was necessary to have the interpretation of Art. 4(2) of Directive 2000/78/EC (Equal Treatment Directive) clarified. According to the Federal Labour Court, the meaning of this provision is material to the interpretation of § 9(1) of the General Act on Equal Treatment and, in particular, it is to be determined which requirements regarding the nature of an occupational activity and the context in which it is carried out constitute genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Art. 4(2) of the Equal Treatment Directive and whether it falls to the national courts to conduct a comprehensive review.
III. By judgment of 17 April 2018, the Court of Justice of the European Union held – put simply – that where a church or organisation rejects an application for employment on the grounds that, by reason of the nature of the activities concerned, 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 of effective judicial review. If the review of compliance with the criteria laid down in Art. 4(2) of the Equal Treatment Directive were, in the event of doubt as to that compliance, not the task of an independent authority such as a national court, such review would be deprived of effect. According to the Court of Justice, in interpreting the term ‘genuine, legitimate and justified requirement’ in Art. 4(2) of the Equal Treatment Directive, the courts must refrain from assessing whether the actual ethos of the church or organisation concerned is legitimate, but at the same time, they must ensure that there is no infringement of the right of workers not to be discriminated against on grounds of religion. It is for the national courts to decide whether and to what extent a domestic provision such as § 9(1) of the General Act on Equal Treatment can be interpreted in conformity with Art. 4(2) of the Equal Treatment Directive or whether it must be disapplied.
IV. With the challenged judgment, the Federal Labour Court ordered the complainant to pay compensation to the plaintiff. It held that § 9(1) first alternative of the General Act on Equal Treatment is incompatible with EU law and therefore inapplicable. According to the Federal Labour Court, § 9(1) second alternative of the General Act on Equal Treatment could also not justify the difference of treatment on religious grounds. While there is a direct link between the occupational requirement and the activities concerned, church membership does not constitute a genuine, legitimate and justified occupational requirement in light of the nature of the activities concerned or the context in which they are carried out, including when the self-perception of the religious community is taken into account.
Key considerations of the Senate:
The constitutional complaint is admissible and well-founded insofar as the complainant asserts that the application of the standards set forth by the Court of Justice of the European Union violates its right to religious self-determination. The challenged decision violates the complainant’s right to religious self-determination.
I. The applicable standard of review are the fundamental rights of the Basic Law. In principle, 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. The relevant provisions of the Equal Treatment Directive regarding the scope of the right to religious self-determination in the area of church labour law afford the Member States leeway in the implementation of said provisions and indicate fundamental rights diversity. This leeway exists within the limits set by Art. 4(2) of the Equal Treatment Directive as interpreted by the Court of Justice of the European Union.
II. 1. The matter falls within the scope of protection of the right to religious self-determination, because the hiring criterion at issue, ‘membership of a Protestant church or a church belonging to the Working Group of Christian Churches in Germany’, is covered by the guarantee of the right to self-determination.
2. The right to religious self-determination is subject to the limits of ‘the law that applies to all’. This includes the provisions of the General Act on Equal Treatment applicable in this case. In interpreting and applying these provisions, the courts must reconcile the right to religious self-determination with the legal interests that the limiting law serves to protect; in principle, a two-stage assessment remains necessary in this regard.
a) The first stage of the assessment builds on the question of whether it is plausible that the matter falls within the scope of protection of the right to religious self-determination; 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. The second stage involves an overall balancing of the interests of employees on the one hand and the right to religious self-determination on the other.
b) In balancing the interests of the church-affiliated employer and employees, the framework set by 4(2) of the Equal Treatment Directive must be taken into account due to the precedence of EU law, as set forth in the case-law of the Court of Justice of the European Union. This can be implemented by interpreting the relevant domestic provisions in conformity with EU law and leads to a specification of the previously developed constitutional standards for the two-stage assessment.
aa) The first stage of the assessment is clarified insofar as, based on the self-perception of the religious community, effective judicial review is extended to the question to what extent the 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. It falls to the religious community to plausibly set out, on the basis of its religious self-perception, that such a link exists for the specific activities in question.
bb) The overall balancing of the affected legal interests at the second stage of the assessment is given more specific shape in that the occupational requirement at issue must be suitable, necessary and appropriate in the strict sense, i.e. proportionate, for preserving the religious self-perception in relation to the specific activities. Thus, the courts may continue to accord particular significance to the religious self-perception in view of its closeness to the religious freedom of religious organisations, which is guaranteed without reservation. The greater the significance of the affected position for the internal or external religious identity of the religious community, the greater the weight to be accorded to the interests submitted by the church in the exercise of its right to self-determination and to the requirement of church membership derived therefrom. The less relevant the position is for the realisation of the religious ethos, the more the protection against discrimination must prevail. The courts must give effect to the great constitutional significance of the protection against discrimination in their balancing of interests.
3. By virtue of the precedence of EU law, the interpretation and application of domestic law must be adapted to the requirements set by EU law for the leeway afforded to the Member States. The precedence of EU law does not cease to apply in the present case.
The judgment of the Court of Justice of the European Union of 17 April 2018 does not amount to an ultra vires act. It neither constitutes a manifest violation of the principle of conferral, nor is it 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 judgment also does not result in a legal situation that falls short of the fundamental rights standard that is indispensable under the Basic Law with regard to the right to religious self-determination.
III. Based on the aforementioned standards, the judgment of the Federal Labour Court violates the complainant’s right to religious self-determination, because the balancing of interests conducted in the context of the application of § 9(1) second alternative of the General Act on Equal Treatment does not give the constitutionally required effect to the complainant’s right to religious self-determination.
1. The Federal Labour Court does not sufficiently take into account 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 leeway to domestic law, within which the constitutional requirements arising from the right to religious self-determination apply. On this basis, the Federal Labour Court fails to 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. The Federal Labour Court replaces the complainant’s perception of a credible external representation of the ethos of the church with its own. The court does not state that the complainant’s perception has not been plausibly set out.
2. In light of its failure to take into account the Christian profile of the organisation concerned, 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 vacancy 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.
The Federal Labour Court raises considerable doubts 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; however, it cannot be established that the complainant’s right to religious self-determination was included in the assessment as required. 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 set by the complainant is not justified. The Federal Labour Court presumes that the complainant has not demonstrated a risk of an impairment to its right to autonomy or to its ethos. In this regard, too, it is not ascertainable that the complainant’s view of the content and significance of the task has been taken into account in the assessment at all.