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EU Observer (12 September 2018)

The European Court of Justice has struck a second blow against churches' rights to hire and fire people based on their beliefs. 

The EU court said in a judgement on Tuesday (11 September) that the German Catholic Church was wrong to sack a man who managed one of its clinics on grounds that he had divorced and remarried in violation of its belief that marriage was "sacred and indissoluble". 

The dismissal "may constitute unlawful discrimination on grounds of religion" under the EU's equal treatment directive, the Luxembourg-based court said.

The church's view on marriage "does not appear to be a genuine, legitimate and justified occupational requirement" in this case, it added in its verdict. 

The court noted that the German constitution allowed the church certain derogations from EU law. 

But it said this had to be "amenable to effective judicial review" and that if national laws clashed with the EU directive, then "a national court hearing a dispute between two individuals will have to disapply the national law". 

The case was originally brought, back in 2009 by 'JQ', a Roman Catholic doctor, who helped to manage the church-run St. Vinzenz Hospital in the German town of Dusseldorf.

Germany's Federal Labour Court, the Bundesarbeitsgericht, will now have to settle the matter in light of the EU judgment. 

The EU court said that JQ's "provision of medical advice and care in a hospital setting and the management of the internal medicine department" had nothing to do with the church's special "ethos". 

It added that JQ's own religious creed had been held against him even though "similar posts were entrusted to employees who were not of the catholic faith". 

German catholic and protestant churches are among the nation's largest employers, accounting for more than 1.3m jobs via charities and foundations.

Tuesday's ruling comes after a similar one in April which said the protestant church was wrong to dismiss a job application on grounds that the applicant was an atheist. 

That case was brought in 2012 by Vera Egenberger, a former UN expert, after she failed to get an interview with Diakonie, a protestant charity, for an 18-month contract to draft a study on racial discrimination. 

The EU court said churches could only demand confessional allegiance when the job profile made it "significant, legal and justified". 

It did not take a firm position on whether the three criteria has been fulfilled in Egenberger's case. 

But it also said the Bundesarbeitsgericht had to take the EU's qual treatment directive into consideration in its decision, which is still pending, on whether to award her the €9,788.65 that she had claimed in damages over the affair.