12.11.2018

Official Journal of the European Union

C 408/13

(Case C-68/17) (<span class="super note-tag">1</span>)

((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment - Occupational activities within churches and other organisations the ethos of which is based on religion or belief - Occupational requirements - Acting in good faith and with loyalty to the ethos of the church or organisation - Definition - Difference of treatment on the basis of religion or belief - Dismissal of an employee of the Catholic faith performing managerial duties due to a second, civil marriage entered into after a divorce))

(2018/C 408/14)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: IR

Defendant: JQ

Operative part of the judgment

1.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 must be interpreted as meaning:

—first, that a church or other organisation the ethos of which is based on religion or belief and which manages a hospital in the form of a private limited company cannot decide to subject its employees performing managerial duties to a requirement to act in good faith and with loyalty to that ethos that differs according to the faith or lack of faith of such employees, without that decision being subject, where appropriate, to effective judicial review to ensure that it fulfils the criteria laid down in Article 4(2) of that directive; and

—second, that a difference of treatment, as regards a requirement to act in good faith and with loyalty to that ethos, between employees in managerial positions according to the faith or lack of faith of those employees is consistent with that directive only if, bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief constitutes an occupational requirement that is genuine, legitimate and justified in the light of the ethos of the church or organisation concerned and is consistent with the principle of proportionality, which is a matter to be determined by the national courts.

2.A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in a manner that is consistent with Article 4(2) of Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from the general principles of EU law, such as the principle prohibiting discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, and to guarantee the full effectiveness of the rights that flow from those principles, by disapplying, if need be, any contrary provision of national law.

(<span class="super note-tag">1</span>) OJ C 144, 8.5.2017.