EU Court Adviser Cracks Whip on German Religious Employers

(CN) – An adviser to Europe’s highest court offered recommendations Thursday for adjudicating employment-discrimination claims against a church-run charity.

Vera Egenberger brought her job application in late 2012 for a post that would last 18 months, preparing a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination.

Despite her many years of experience in this field, having written a range of relevant publications, Egenberger is not religious and saw this as the reason why the employer, an affiliate of the Protestant Church in Germany, did not hire her.

Indeed the application said explicitly, as quoted in the opinion Thursday: “We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.”

Germany’s Labour Court found that Egenberger suffered discrimination, but the Federal Employment Court invited the European Court of Justice to weigh in, voicing uncertainty about the correct interpretation of EU law.

In his nonbinding recommendation to the court Thursday, Advocate General Evgeni Tanchev noted that Egenberger’s case marks “the first occasion on which the court has been called on to interpret Article 4(2) of Directive 2000/78.”

Tanchev also highlighted the context of the case, given the “quasi-monopolistic position” he said church-related institutions hold in some regions and fields of work as the second largest employer in Germany.

Tanchev called it “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.”

The adviser was unequivocal that the church employer here cannot “authoritatively determine whether adherence by an applicant to a specified religion … constitutes a genuine, legitimate and justified occupational requirement.”

While churches are entitled to govern their own work, Tanchev said national courts must balance these rights to autonomy and self-determination against the rights of employees or prospective employees to be free from religious discrimination.

“It is apparent from the fact that religious organisations in Germany employ around 1.3 million people that there is considerable engagement in the public sphere by churches and their affiliates in that member state,” the ruling concludes. “I nevertheless take the view that the tensions generated by this situation, as exemplified by the main proceedings, have been accommodated through promulgation of Article 17 TFEU, Article 4(2) of Directive 2000/78, and acknowledgment of the right of religious organisations to autonomy and self-determination as a fundamental right that is protected under EU law, through the combined effects of Articles 10, 12, and 52(3) of the charter.”

The full EU court must still weigh in from Luxembourg, but Tanchev’s guidance sets the stage for Egenberger to obtain damages from the state because of the conflict between German and EU law.

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