EU Court Ruling to Shift German Religious Anti-discrimination Policy

The European Court of Justice recently made a determination that could affect the way religious organizations within the country operate. On April 17, the court ruled that churches in EU member states should abandon their faith-based employment prerequisite when advertising and hiring staff.  The ECJ ruling applies to all European countries but will majorly affect Germany. Germany allows its churches to be autonomous in making their decisions, but this ruling calls into question the legitimacy and integrity of German anti-discrimination laws and their compliance with EU anti-discrimination standards.

Hiring on a Case-by-Case Basis
The European Court of Justice made its determination on the discrimination law following a case of a job applicant against the Protestant Church of Germany. The woman, who did not identify herself as a Christian, applied for a position with the charity organization linked to the church. A year after submitting her application, the Evangelisches Were Fur Diakonie und Entwicklung returned the woman’s application with no further comment. The job posting for the position listed religious affiliation as a requirement.
When rejected for the position, Vera Egenberger sued the Protestant Church for discrimination. According to The Local German, the Berlin-based applicant was highly qualified for the position and had the experience the organization was looking for. The only qualification she did not meet was having ties to the church. Thus, in her suit, Egenberger indicated that she was suing the church for €10,000 in compensation.

Egenberger is one of many employees affected by the existing laws in Germany. Churches fall under a special law according to the country’s constitution. This is a significant challenge in the country considering that the Protestant and Catholic churches combined make up the second largest employer in the region after the government. At present, churches can hire on a case-by-case basis without civil authorities involvement or judicial intervention. The ECJ’s ruling on Tuesday indicates a paradigm shift in the direction the church takes in formulating and implementing its hiring policy, Steffen Klump told The Express. Klump is a professor of employment law at the University of Nuremberg-Erlangen.

A Significant Shift in Employment Policy
In Germany, churches operate under a special law that gives them autonomy during the hiring process. The law has attracted attention from anti-discrimination activists. Even the UN lists the law as problematic. In the 26-page report he submitted to the ECJ, Advocate General Evgeni Tanchev noted that the United Nations Human Rights Committee had criticized the law for falling short of UN expectations of anti-discrimination law.

One of the articles of the German anti-discrimination law gives churches the freedom to discriminate on the basis of faith. Under Article 9 of the General Equal Treatment Act in Germany, churches and other religious organizations are allowed to “treat employees differently.” That means that even in the hiring process, churches are allowed to selectively root out non-Christians from their hiring process. This law allows churches to discriminate employees on religious precepts. The law states: “Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.”
German churches have had the freedom to accept or decline potential employees’ applications based on this law. In the case of Vera Egenberger, the law protected the church from her compensation claim. There were, however, conflicting opinions about her case.
German law is clear: Egenberger did not qualify for compensation because the church has the freedom to self-regulate in the hiring process. However, the same could not be said for EU anti-discrimination law.

In its ruling on Tuesday, the ECJ stated that though the church had special privileges in employing individuals, it could not have complete autonomy in the process. A balance had to be found between the organizations’ privileges and the basic right of employees to a fair hiring process. The statement from the court said that “the neutrality of the European Union towards the organization by the Member States of their relations with churches and religious associations and communities is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from an effective judicial review.”

Following this ruling, the church will have to be able to justify each hiring decision it makes in a court of law. This ruling could affect the ruling made in the case of Vera Egenberger and other employees who did not meet the religious requirement in German churches. However, there is still a challenge posed by German law.
The ECJ ruled that each case would be subject to judicial review. Any employment case moving forward will have to be justifiably objective, and churches will have to demonstrate that religious affiliation is necessary before disqualifying non-religious individuals from the hiring process. However, the level of the church’s objectivity necessitated by the ruling is not clear.
Churches in Germany received the controversial ruling with varied attitudes.

The Reaction of the Church
The Evangelical German church stated that the ECJ was interfering with its hiring process and its ability to shape itself as an organization. According to the church, the judgment restricted the church’s freedom to select personnel.

The Catholic Church, on the other hand, displayed a willingness to reform its policies to comply with the additional requirements of the ruling. The Secretary-General of the German Bishops’ Conference, Jesuit Fr Hans Langendorfer, remarked that the church did not make “disproportionate demands” on potential employees and would review its policies in light of the ruling. “We will examine how far its recruitment practices should be adapted.”

This will be the second amendment made by the Catholic Church with regard to the anti-discriminatory law in the past decade should it be adapted. In 2015, the church permitted its employees to belong to unions in a bid to reflect “multiple changes in legal practice, legislation, and society.” It simultaneously scrapped the faith requirement for its employees. All it required from its workers was that they conform to a life that reflected Christian values. Workers were also not to disparage the image of the Church by openly showing support for issues the church was opposed to such as abortion.

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