In the second part of this two-part blog, Cloisters’ Schona Jolly QC and Sarah Fraser Butlin look at important new developments from the CJEU on the genuine occupational requirement in the context of religion or belief discrimination in the Framework Directive.
When does a requirement to profess a faith, or to follow a particular tenet of a faith in one’s private life constitute a Genuine Occupational Requirement (GOR) for the purposes of Article 4(2) of the Framework Directive? That was the question before the CJEU in Egenberger and one also addressed by AG Wathelet in IR v JQ, both cases originating in Germany.
We have set out the facts of the cases in our previous blog here. But briefly, Egenberger concerned an applicant who had unsuccessfully applied for a fixed term role at the Protestant Work for Diaconate and Development, where they would have been required to write a report on the UN Convention on the Elimination of All Forms of Racial Discrimination. In IR v JQ the Head of Internal Medicine at a Catholic Hospital was dismissed when he married for a second time, having divorced but not having had his first marriage annulled in accordance with the doctrine of the Catholic church.
A word on the context
As noted by AG Tanchev in Egenberger, church-related institutions are reported to be the second largest employer in Germany. Consequently, it would be “difficult to overstate the delicacy of balancing preservation of the right of the EU’s religious organisations to autonomy and self-determination …against the need for effective application of the prohibition on discrimination with respect to religion and belief on the EU’s ethnically and religiously diverse labour market…” (§4).
The German context is particularly unusual because the German general law on equal treatment provides that religious organisations are not prevented from being “able to require their employees to act in good faith and loyalty in accordance with their self-perception”. So the first thing the CJEU had to determine in Egenberger was whether the national court even had a role in determining whether or not a GOR existed, or whether this was something that had to be left entirely within the domain of the church.
The CJEU held, fairly easily, that “if review of compliance with [Article 4(2)] criteria were, in the event of doubt as to that compliance, the task not of an independent authority such as a national court but that of the church or organisation intending to practise a difference of treatment on grounds of religion or belief, it would be deprived of effect” (§46).
When is an organisation’s ethos based on religion or belief?
In Egenberger the organisation was clearly a religious organisation, but the question arose in IR v JQ since the Hospital was under the supervision of the Archbishop of Cologne, yet provided healthcare services to all. The CJEU is yet to determine the matter but AG Wathelet did not mince his words: “The mere fact that IR is subject to supervision by the Catholic Archbishop… and its company object is the implementation of the missions of Caritas is not sufficient to establish that its ethos is based on religion. On the contrary, the referring court will need to assess the ethos of IR in terms of its activities, including in particular the healthcare services provided …[and whether] those services are provided in a way that distinguishes them clearly from the services provided by public hospitals.” (§46 and 47).
This doesn’t really come as a surprise for us in the UK because it chimes with Glasgow CC v McNab in which the EAT held that an education authority could not be an organisation with a religious ethos. However, it is helpful to bear in mind when advising clients that the ethos cannot be assumed or asserted, but instead must be clearly evidenced in relation to the activities and services that are in fact provided.
What is a GOR in religion or belief cases?
Article 4(2) of the Framework Directive provides:
“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.”
In Egenberger, as pursuant to ECHR jurisprudence, the Court noted that it was not for courts to assess the legitimacy of an ethos itself. However, in the event of a dispute where it was required to strike a balance, the courts “must ensure there is no infringement of the right of workers not to be discriminated against inter alia of religion or belief” (§61). Consequently, “the purpose of the examination is to ascertain whether the occupational requirement imposed by the church or organisation, by reason of the nature of the activities concerned or in the context in which they are carried out, is genuine, legitimate and justified, having regard to that ethos” (§61).
The Court highlighted five requirements in considering the balance to be struck:
- Whether something is an occupational requirement is determined by reference to the ‘nature’ of the activities concerned or the ‘context’ in which they are carried out. It depends on the “objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned” (§§62 and 63).
- The “genuine” nature of the requirement, i.e. professing the religion or belief “must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its rights of autonomy” (§65).
- It must be “legitimate” meaning that a GOR must not be used to pursue an aim that has no connection with the ethos (§66);
- It must be “justified”: “in the light of the factual circumstances of the case, … 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” (§67).
- It must be proportionate. This is an interesting addition since, whilst Article 4(1) (providing a broad GOR defence on any of the protected grounds) does incorporate a proportionality requirement, Article 4(2) itself does not. However, the Court overrode this by referring to the need to take into account general principles of Community law, of which proportionality is one.
This logic was followed, and cited, by the AG in IR v JQ. However, his application of those principles to the facts of IR was scathing. He rejected outright the argument that the profession of a belief in marriage as defined by the doctrine and canon law of the Catholic Church, constituted “an occupational requirement, much less one that is genuine and justified” (§66). He did so for three reasons:
- It was “in no way linked” to the occupational activities of IR and JQ. The proof of this was that membership of the Catholic Church was not a required condition for that role (§67).
- It was not a genuine occupational requirement because respect for the concept of marriage was not necessary to the provision of healthcare services (§68).
- It was “far from justified”. JQ’s divorce and remarriage “pose no risk, whether probable or substantial, of causing harm to IR’s ethos or to its right of autonomy” (§69).
It’s worth noting that IR and the Polish Government argued that this would effectively require IR to only employ Catholics. AG Wathelet rejected this on the basis that it would not be a genuine or justified occupational requirement for jobs linked to healthcare services.
Where does this leave us?
This part of the judgment sits neatly in line with those relating to direct horizontal effect and the Charter which we explored last week. Arguably, the Court sits the principle of non-discrimination at the head of the apex of rights. The unusual feature of the judgment is the application of the proportionality principle which does not appear in the text of Article 4(2).
This may be an unsurprising approach for a Court steeped in the proportionality outlook that EU law demands. Indeed, the judgment in Egenberger and the Opinion in IR v JQ are very much in line with the CJEU’s judgment in Bougnaoui. There, the CJEU was concerned with Article 4(1) Framework Directive, in the context of whether a secular employer could apply a GOR to prevent a woman wearing a headscarf in the workplace. There too, the Court held that Article 4(1) required circumstances to be objectively dictated by the nature or context of the work. Subjective considerations were not enough. In short, there had to be basis for the GOR, not just an employer acting on a whim. In much the same way, the Court has required the Church in Egenberger to show an objective basis for the imposition of the GOR. Moreover, in practice it accords with the way in which the UK has transposed these requirements into domestic law.
However, it may be that such a balance was achievable within the tests already set out within Article 4(2). By importing an additional proportionality requirement into Article 4(2) where none appears in the text of the Directive, the CJEU appears to have gone beyond the ambit of the Article and arguably, at least, moved the goalposts for organisations, such as churches, who understood Article 4(2) to be an express carve-out for them. It also begs the question of where Article 17 TFEU and Article 10 Charter sit within the balancing exercise that courts will be required to do when faced with a dispute of this nature. The Court appears to have sidestepped these difficult questions of how Article 4(2) and proportionality interact with the religious freedom expressly incorporated via Article 17 TFEU and Article 10 Charter.
Frustratingly, we see a similar weakness in the Court’s guidance and reasoning as to how the balance is struck between competing rights as we saw in Achbita and Bougnaoui. It is notable that the Court in Egenberger did not address in any significant way the fundamental rights framework which may have assisted it with providing a reasoned approach to the balance to be struck. By contrast, AG Tanchev did address in his Opinion the interaction with the European Convention on Human Rights:
“…Article 4(2) of Directive 2000/78 might be viewed as the legislative manifestation within the EU of the defendant’s right to autonomy and self determination, as protected under Articles 9 and 11 of the ECHR with the phrase ‘having regard to the organisation’s ethos’ being the core element of Article 4(2) of Directive 2000/78 that is to be interpreted in the light of the relevant case-law of the European Court of Human Rights. Articles 1 and 2 of Directive 2000/78 are the legislative manifestation of the applicant’s right not to be discriminated against on the basis of religion or belief as protected by Articles 9 and 14 of the ECHR, with Article 2(5) of Directive 2000/78, and its mandate for Member States to maintain measures necessary for, inter alia, ‘the protection of the rights and freedoms of others’ flagging the balancing exercise courts are bound to undertake when confronted with a competition among rights” (at §56).
Egenberger is now the third case before the CJEU in which religion in the context of the Framework Directive has been tested. It is fair to say that the Court’s approach to how to conduct the balancing exercise on fundamental rights, where one of the rights engaged concerns freedom of religion, has fallen short on each occasion. Given its boldness in introducing and building on concepts such as horizontal direct effect and proportionality, this omission is striking. Given the importance that the CJEU has placed on the non-discrimination principle, the question arises as to why the CJEU is so reluctant to address issues of where religion or belief discrimination fit and how this protected characteristic interacts with other rights. One might even wonder whether it is trying to step away from some of the most difficult judgments which it is required to make.