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Advocate General Wathelet has issued his Opinion in IR (Social policy – Occupational activities of churches – Opinion) [2018] EUECJ C-68/17 O .
The facts
The Roman Catholic Church in Germany requires that Church managerial employees such as doctors who are Heads of Department in hospitals must comply with the Church’s doctrinal and moral teaching in their personal conduct. JQ, a Roman Catholic, was Head of the Internal Medicine Department of a Roman Catholic hospital in Düsseldorf managed by IR, a limited liability company established under German law and subject to the supervision of the Archbishop of Cologne. JQ divorced his first wife and remarried in a civil ceremony but without a prior annulment – and he was sacked.
IR contends that, by entering into a marriage invalid under canon law, JQ had clearly infringed his obligations under his employment relationship, thereby justifying his dismissal. JQ, however, argues that his dismissal is an infringement of the principle of equal treatment because, in accordance with the Church’s rules, a Head of Department of the Protestant faith or of no faith would not have been dismissed for divorce and remarriage.
The German Federal Labour Court [ Bundesarbeitsgericht ] sought a ruling from the CJEU on whether the German concept of the right to religious self-determination, which allows the Roman Catholic Church to require different gradations of loyalty from its employees depending on their professed religion even where they hold similar positions, complies with EU law and, more specifically, with the prohibition of discrimination on grounds of religion laid down by the Equal Treatment Directive, as follows:
“Is the second subparagraph of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as meaning that the church can determine with binding effect that an organisation such as the defendant in the present proceedings, where employees in managerial positions are required to act in good faith and with loyalty, shall differentiate between employees who belong to the church and those who belong to another church or to none at all?
If the first […]