In
Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted
Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief. The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief." It provides that in such organizations:
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.
In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified. It went on to define how national courts should interpret the exception:
Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....
... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.
.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.
Law & Religion UK has more on the decision.
