The judgment under consideration addresses the delicate balancing of, on the one hand, the right to autonomy of organisations whose ethos is based on religion and, on the other hand, the principle of non‑discrimination of workers on grounds of religion, as enshrined in Union law and the Charter of Fundamental Rights. The Court of Justice clarifies, at the outset, that Member States enjoy a certain margin of discretion in defining such a balance. However, the Union judges specify that the review of the lawfulness of differences in treatment falls to national courts, which are called upon to verify whether the occupational requirements imposed by the religious organisation are, in practice, essential, legitimate and justified, taking into account the nature of the activities carried out or the context in which they are performed. Judicial assessment of the content of the religious ethos as such remains, by contrast, precluded.

In the present case, the dispute arises from the dismissal of a counsellor employed at Katholische Schwangerschaftsberatung, a German Catholic association operating in counselling for pregnant women, which requires its employees to comply with the directives of the Catholic Church, oriented towards the protection of the unborn child. The worker, who was formally a member of the Catholic Church at the time of her recruitment, subsequently decided to leave it, justifying her decision on the ground that the diocese in her place of residence, in addition to church tax, required a supplementary contribution from Catholic believers who, like her, were married in an interconfessional marriage with a spouse of high income. The association then proceeded with the worker’s dismissal, considering that this departure constituted a serious breach of the loyalty obligations arising from the employment relationship, also in light of canon law.

The Court observes, however, that in the same counselling service the association also employed non‑Catholic workers, who, despite performing the same duties, were not subject to any obligation of belonging to the Church or to the risk of dismissal in the event of leaving it. This leads to the conclusion that the requirement of denominational membership does not have an essential character for the performance of the work, and that it is sufficient for the counsellors to commit themselves to respecting the ethical directives of the organisation.

In this context, the Court states that Union law precludes a national provision which allows a religious organisation to require, on pain of dismissal, that an employee belonging to a specific church does not leave it during the employment relationship, where such a requirement is not actually necessary and proportionate. In particular, leaving the Church as such does not appear capable of undermining the organisation’s ethos or its right to autonomy, especially where the worker has not displayed hostile behaviour or a refusal to conform to the principles and directives of the organisation.

The Court further emphasises that the organisation bears the burden of proving the existence of a real and sufficiently serious risk of harm to its ethos or autonomy, such as to justify the imposition of the contested requirement. In the absence of such proof, the difference of treatment based on religion cannot be regarded as compatible with Union law.

It remains, however, for the national court – in this case, the German Federal Labour Court – to carry out the final assessment regarding the existence of the conditions of essentiality, legitimacy and proportionality of the requirement, in the light of the indications provided by the Court of Justice.

In the light of the above, the ruling – placing itself in line with earlier case‑law of the same Court – confirms that the autonomy of religious organisations, even though guaranteed at both constitutional and Union level, cannot translate into a general exemption from observance of the principle of non‑discrimination, but must be assessed against a rigorous proportionality control entrusted to the court.

 

(Comment by Martina D'Onofrio)