Provisional text

delivered on 10 July 2025 (1)

Case C‑258/24

Katholische Schwangerschaftsberatung

JB

(Request for a preliminary ruling from the Bundesarbeitsgericht (Federal Labour Court, Germany))

( Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment – Difference of treatment on grounds of religion – Article 4(2) – Occupational activities within churches and other organisations the ethos of which is based on religion or belief – Religion constituting a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos – Dismissal of an employee for leaving the Catholic Church – Article 17 TFEU – Articles 10 and 21 of the Charter of Fundamental Rights of the European Union )

I.Introduction

1.This request for a preliminary ruling concerns the interpretation of Article 4 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. (2) It has been made by the Bundesarbeitsgericht (Federal Labour Court, Germany) in the context of proceedings between Katholische Schwangerschaftsberatung, an association within the German Catholic Church, and JB, a former employee of that association. JB was dismissed on account of her decision to leave the Catholic Church, which, she claims, was due to her unwillingness to pay the special levy imposed by that church on persons who live with a high-earning spouse of a different religion.

2.The present case follows directly on from the judgments in Egenberger (3) and IR, (4) in which the Court of Justice provided relevant guidance for determining when a person’s religion can constitute an occupational requirement where occupational activities are carried out within churches and public or private organisations the ethos of which is based on religion. (5) The present case therefore affords the Court the opportunity to give further clarification on the conditions that those churches and religious organisations must satisfy in order to successfully rely on the derogations from the principle of equal treatment listed in Article 4 of Directive 2000/78, in particular those set out in paragraph 2 of that provision. In that connection, account will also need to be taken of two relevant provisions of EU primary law, namely (i) Article 17 TFEU, which states that the Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States, and (ii) Article 10 of the Charter of Fundamental Rights of the European Union, (6) which expressly enshrines the individual’s freedom to change religion.

II.Facts, procedure and the questions referred

3.Katholische Schwangerschaftsberatung, the appellant in the main proceedings, (7) is a women’s professional association within the Catholic Church in Germany. Its purpose is to help children, young people, women and their families in particular circumstances. Among the different tasks it performs, it provides counselling to pregnant women, namely as regards abortion.

4.The employment contracts that the appellant establishes with its employees refer specifically to the Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse (Basic Regulation on employment relationships in the service of the Church) of 22 September 1993. (8) That regulation lays down the rules that the Catholic Church applies to its employment relationships in Germany and establishes, in particular, the obligations of employees in terms of loyalty and behaviour.

5.According to the Basic Regulation, serious breaches of the duty of loyalty may result in an employee’s dismissal. (9) For every employee, Catholic or non-Catholic, a breach of the duty of loyalty is regarded as serious where he or she publicly opposes the fundamental principles of the Catholic Church, for example by promoting abortion or xenophobia. (10) For Catholic employees, defection from the Catholic Church amounts, moreover, to a serious breach of that duty. (11)

6.JB is the mother of five children and was employed by the appellant from 2006 as, inter alia, a counsellor in pregnancy-related projects. In October 2013, while she was on parental leave, JB notified the competent municipal authority of her intention to leave the Catholic Church. In the light of the financial burden weighed on her family, her primary aim was to be exempted from the payment of the additional church levy to which she was subject as a Catholic person married to a high-earning spouse in an interfaith marriage.

7.Having been notified of that decision, the appellant first tried to persuade JB, when she returned from her parental leave, to rejoin the Catholic Church, by following the steps set out in the Basic Regulation. (12) Upon JB’s refusal, the appellant dismissed her in June 2019, taking the view that her decision amounted to a serious breach of her duty of loyalty under that regulation. At the date of the dismissal, the appellant’s counselling team on abortion comprised six persons, two of whom were members of the Evangelical Church.

8.JB challenged the appellant’s decision before the lower labour courts in Germany. Her action for unfair dismissal was successful and the payment of compensation was ordered in her favour. The appellant therefore brought the case before the Bundesarbeitsgericht (Federal Labour Court), the referring court in the present case, with a view to having the rulings of both lower labour courts set aside.

9.In the referring court’s view, JB’s dismissal constitutes a difference of treatment that, in principle, amounts to direct discrimination on grounds of religion within the meaning of Article 2(2)(a) of Directive 2000/78, read in conjunction with Article 1 thereof. That court has doubts, however, as to whether the derogations from the principle of equal treatment set out in Article 4(2) of that directive or, alternatively, in Article 4(1) thereof are applicable to a case such as that in the main proceedings.

10.First, as regards the first subparagraph of Article 4(2) of Directive 2000/78, which in essence refers to genuine, legitimate and justified occupational requirements based on a person’s religion, the referring court does not question whether the appellant is a religious organisation within the meaning of that subparagraph. Nevertheless, that court queries whether remaining in a particular religious community, or rejoining that community after leaving it, may constitute an occupational requirement under that provision. As regards the case at issue in the main proceedings, the referring court notes that the appellant did not make performance of the occupational activity at issue conditional on membership of the Catholic Church. It did not even require its employees to belong to a religious community. That said, leaving the Catholic Church is, under canon law, one of the most serious offences against the faith and the unity of that church. Therefore, bearing in mind the autonomy of churches recognised by Article 17 TFEU, the referring court cannot rule out that, by leaving the Catholic Church, an employee is no longer suitable for employment within that church.

11.Second, as regards the second subparagraph of Article 4(2) of Directive 2000/78, which refers to the right of churches to require their employees to act in good faith and with loyalty to the organisation’s ethos, the referring court highlights that the wording of that subparagraph expressly requires the criteria set out in the first subparagraph of Article 4(2) of Directive 2000/78 to be fulfilled. That means that any derogation from the prohibition of direct discrimination under the second subparagraph of that Article 4(2) depends on the examination of the criteria set out in the first subparagraph thereof, in particular in the light of the judgments in Egenberger and IR. The referring court nonetheless harbours doubts as to whether the wording of that second subparagraph means that the duty to act in good faith and with loyalty relates to the ethos of the church to which a religious organisation belongs or to the organisation itself as an employer. In the referring court’s view, for instance, an employee may have acted in bad faith towards the Catholic Church by leaving that church; however, he or she may not necessarily have acted in bad faith towards his or her employer, whose ethos that employee must observe in the performance of his or her tasks.

12.Third, as regards Article 4(1) of Directive 2000/78, which applies to genuine and determining occupational requirements, provided that their objective is legitimate and that they are proportionate, the referring court notes that that provision does not require examining those criteria in relation to the ethos of the employer, but in the light of the objective nature of the occupational activities concerned and of the context in which they are carried out. From that point of view, it would not appear to be objectively necessary to remain a member of the Catholic Church in order to work in pregnancy counselling. Nonetheless, for the referring court, it cannot be ruled out that the ethos of an organisation based on religious principles may be considered an objective requirement within the meaning of that article. In that context, again, the autonomy of churches, as protected by Article 17 TFEU, should perhaps be taken into consideration.

13.It is in those circumstances that the Bundesarbeitsgericht (Federal Labour Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Is it compatible with EU law, in particular [Directive 2000/78] in [the] light of [Article] 10(1) and [Article] 21(1) of the [Charter], if a national provision provides that a private organisation whose ethos is based on religious principles … may require of its staff … not to leave a particular church during the employment relationship, or may make it a condition of the continuation of the employment relationship that a member of staff who has left a particular church during the employment relationship rejoin said church, if it does not also require its staff to belong to that church and the member of staff does not openly act in a manner that is contrary to the church?

(2)If the first question is answered in the affirmative: What, if any, further requirements apply under [Directive 2000/78] in [the] light of [Article] 10(1) and [Article] 21(1) of the [Charter] in order to justify such a difference of treatment on grounds of religion?’

14.The request for a preliminary ruling was lodged at the Registry of the Court of Justice on 12 April 2024. Written observations were submitted by the Hellenic Republic, the European Commission and the parties to the main proceedings. A hearing was held on 17 March 2025 before the Grand Chamber of the Court, in which all the parties submitting written observations took part.

III.Assessment

15.By its two questions, the referring court seeks clarification of the interpretation of Directive 2000/78, in the light of Article 10(1) and Article 21(1) of the Charter.

16.Even though neither of those questions refer to a concrete provision of that directive, it appears from the considerations exposed in the order for reference that, by the first question, the referring court aims to ascertain whether Article 4(2) of Directive 2000/78 or, alternatively, Article 4(1) thereof must be interpreted as meaning that the dismissal of an employee, by a religious organisation on account of that employee’s decision to leave the church of which that organisation forms part, amounts to discrimination. The referring court asks that question as regards, in particular, an occupational activity the performance of which has not been made conditional on membership of the church concerned and on the employee not openly acting in a manner that is contrary to the ethos of that church. Should it be found that there is no discrimination in such a case, the referring court requests the Court, by its second question, to specify the requirements, if any, that must be taken into account for justifying such a difference of treatment on grounds of religion.

17.In the present Opinion, based on the sequence of the doubts harboured by the referring court, I will examine, as regards the first question, whether a situation such as the one described in the order for reference can be covered by the derogations contained in the two subparagraphs of Article 4(2) of Directive 2000/78. Should none of those derogations apply, I will next examine whether the derogation appearing in Article 4(1) of that directive could apply to a situation like that at issue in the main proceedings. I will only examine the second question referred if one of those provisions is found to be applicable, which is the essential premiss on which that question relies.

A.Article 4(2) of Directive 2000/78

18.The purpose of Directive 2000/78, as stated in Article 1 thereof, is to lay down a general framework for combating discrimination on the grounds of, inter alia, religion or belief as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. (13) As stated in the Court’s case-law, Directive 2000/78 is thus a specific expression, in the field covered by it, of the general prohibition of discrimination laid down in Article 21 of the Charter. (14)

19.Moreover, the general framework for combating discrimination established by Directive 2000/78 contains, in Article 4(2) thereof, a specific provision that refers to differences of treatment based on religion in the case of occupational activities within churches and religious organisations.

20.In particular, the first subparagraph of Article 4(2) of Directive 2000/78 provides that Member States may maintain or adopt national legislation pursuant to which, in the case of occupational activities within churches and religious organisations, a difference of treatment based on a person’s religion does not constitute discrimination. For that to be the case, that subparagraph requires that the person’s religion constitute a genuine, legitimate and justified occupational requirement, having regard to that organisation’s ethos. Furthermore, that difference of treatment is to be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of EU law, and should not justify discrimination on another ground.

21.For its part, the second subparagraph of Article 4(2) of Directive 2000/78 states, in essence, that, provided that its provisions are otherwise complied with, that directive is not to prejudice the right of churches and other religious organisations, acting in conformity with national constitutions and laws, to require that their employees act in good faith and with loyalty to the organisation’s ethos.

22.As regards the first subparagraph of Article 4(2) of Directive 2000/78, the Court has established that the lawfulness, from the point of view of that provision, of a difference of treatment on grounds of religion depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. (15) Accordingly, a church or any other religious organisation may treat its employees differently based on religion only if, bearing in mind the nature of the occupational activity concerned or the context in which that activity is carried out, the religion in question is a genuine, legitimate and justified occupational requirement having regard to the ethos of that church or organisation. (16)

23.More specifically, the Court’s case-law has stated, first of all, that the use of the adjective ‘genuine’ in the first subparagraph of Article 4(2) of Directive 2000/78 means that professing the religion on which the ethos of the church or organisation is founded must be necessary because of the importance of the occupational activity in question for the promotion of that ethos or the exercise by the church or organisation of its right of autonomy, as recognised by Article 17 TFEU. (17)

24.The Court has also noted that the use of the term ‘legitimate’ shows that the EU legislature intended to ensure that the requirement of professing the religion on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy. (18)

25.Last, the term ‘justified’ implies not only that a national court can review whether the criteria laid down in Article 4(2) of Directive 2000/78 are being complied with, but also that the church or organisation imposing the occupational requirement is obliged to demonstrate, in the light of the factual circumstances of the individual case, that the alleged risk of undermining its ethos or its right of autonomy is probable and substantial, so that the imposition of such a requirement is necessary. (19)

26.In the present case, it should be noted, as a preliminary point, that the dismissal at issue in the main proceedings constitutes, in the eyes of the referring court, a difference of treatment on grounds of religion. The referring court further takes the view that that difference of treatment amounts to direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78, since, in essence, JB’s dismissal was not decided on the basis of an apparently neutral provision, criterion or practice, but on the basis of a rule that applies solely to employees who are members of the Catholic Church and not to employees professing any other religion or not professing any religion at all.

27.In that respect, it is important to recall that, according to the Court’s settled case-law, (20)

27.) it is for the referring court to verify, having regard to all the relevant circumstances of the case, whether a difference of treatment amounts to discrimination within the meaning of Article 2(2) of Directive 2000/78. It is also for that court to determine whether the discrimination in question must be characterised as direct, pursuant to subparagraph (a) of that provision, or indirect, pursuant to subparagraph (b) thereof.

28.It follows that, even though the appellant contests, in its written observations, the referring court’s findings regarding the difference of treatment at issue in the main proceedings, the Court is not required to consider that issue, since neither of the questions referred relate to the interpretation of Article 2(2) of Directive 2000/78. The same is true of the referring court’s finding – which has not been called into question by any of the parties before the Court – that the appellant falls under the category of a religious organisation within the meaning of Article 4(2) of Directive 2000/78.

29.Concerning the three criteria laid down in the first subparagraph of Article 4(2) of Directive 2000/78, which apply to the occupational requirements referred to in that provision, it is important to note that they are cumulative. Consequently, the non-fulfilment of one of those criteria suffices to conclude that the derogation stemming from that provision cannot be relied on to justify a difference of treatment on grounds of religion.

30.That is the case in the present instance, where, in my view, an occupational requirement which obliges employees belonging to a church not to leave it, in order not to face dismissal, does not fulfil the criterion of genuineness laid down in the first subparagraph of Article 4(2) of Directive 2000/78, account taken of an occupational activity such as that described in the order for reference.

31.Indeed, as is clear from the Court’s case-law cited in point 23 of the present Opinion, for the criterion of genuineness to be fulfilled, an occupational requirement must be, first and foremost, necessary because of the importance of the occupational activity in question for the promotion of the ethos of the church or religious organisation or for the exercise by the church or organisation of its right of autonomy. According to the first subparagraph of Article 4(2) of Directive 2000/78, the assessment as to whether that criterion is fulfilled must be undertaken taking into account the nature of the occupational activity and the context in which that activity is carried out. In essence, that means that an occupational requirement will be considered genuine, within the meaning of that provision, where, by reason of the nature of, and the context in which, an occupational activity is carried out, the fact of not professing a religion renders the employee concerned unsuitable to perform that activity, having regard to the organisation’s ethos.

32.Yet, an occupational requirement consisting in continuous membership of a church cannot be held to be genuine where a religious organisation, acting as employer, does not make performance of an occupational activity conditional on that membership, nor where, furthermore, that organisation employs persons of a different religion to carry out that activity.

33.In that regard, it must be pointed out that, in such a case, there is no need to verify, as a preliminary step, whether the occupational activity in question is important for the promotion of the ethos of the religious organisation or for the exercise of that organisation’s right of autonomy. It is after all the religious organisation itself that has conceived and defined the nature of the occupational activity as not requiring, for the performance of that activity, membership of a church. Moreover, it is evident that, where the staff employed in the occupational activity is composed of members of different religious communities, as in the case at issue in the main proceedings, the context in which that activity is carried out also does not allow the consideration that remaining within a church constitutes a genuine obligation whose non-respect renders an employee unsuitable for performing his or her duties.

34.Nevertheless, the appellant in the main proceedings argues that the fact that employees involved in an occupational activity are not required to belong to a particular church is not equivalent to a requirement not to leave that church at the beginning of and throughout the employment relationship. In line with the explanations provided by the referring court in the order for reference, the appellant in the main proceedings notes, in essence, that to abandon the Catholic Church is, under canon law, one of the most serious offences against that church. This has been acknowledged in German constitutional law, in particular, in the case-law of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), which has further recognised that defection from the Catholic Church constitutes a valid ground of dismissal in the light of that church’s right of self-determination. For that reason, according to the appellant, given the autonomy that, under Article 17 TFEU, must be recognised to a church when establishing its employment relationships in a Member State, an occupational requirement such as that at issue in the main proceedings should not be considered discrimination according to the first subparagraph of Article 4(2) of Directive 2000/78.

35.In that regard, I would like briefly to recall, at the outset, that Article 17 TFEU expresses the neutrality of the European Union towards the organisation by the Member States of their relations with churches and religious associations and communities. (21) According to the Court’s case-law, (22) that neutrality is already embedded in Article 4(2) of Directive 2000/78, (23) which aims to ensure a fair balance between, on the one hand, the right of autonomy of churches and other religious organisations, as recognised, inter alia, in Article 17 TFEU, and, on the other hand, the right of workers not to be discriminated against on grounds of religion, as recognised in Article 21 of the Charter, in situations where those rights may clash. (24)

36.It is precisely to that end, as the Court has previously held, (25) that Article 4(2) of Directive 2000/78 sets out the criteria to be taken into account in the balancing exercise which must be performed in order to ensure a fair balance between those competing fundamental rights. Ultimately, that implies that, in the field of equal treatment in employment and occupation, the right of autonomy of churches under Article 17 TFEU is subject to conditions and that that right cannot render meaningless the general prohibition of discrimination laid down in Article 21 of the Charter and, in particular, the criteria laid down in Article 4(2) of Directive 2000/78.

37.In the present case the fact remains that, as regards the performance of an occupational activity, and where there are no other relevant factors to take into consideration, an employee who has left a particular church is placed in the same position as other employees who do not belong to that church. Accordingly, where a religious organisation has autonomously established that the occupational activity concerned can be carried out by persons who do not belong to a particular church, the circumstance that an employee has abandoned that church cannot be sufficient to conclude that that employee will no longer be suitable to carry out that activity.

38.In that regard, first, it is important to note that an interpretation of the right of autonomy under Article 17 TFEU which allows a religious organisation to dismiss an employee on the ground that he or she has left a particular church, in the specific context where membership of that church is not necessary for carrying out an occupational activity, would, as the referring court points out, withdraw compliance with the criteria set out in the first subparagraph of Article 4(2) of Directive 2000/78 from the scope of effective judicial review. That contradicts fully the Court’s findings in the judgments in Egenberger (26) and IR. (27)

39.Second, it is clear that such an interpretation would also run counter to the individual freedom to change religion, which is expressly enshrined in Article 10(1) of the Charter and which corresponds to Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. (28) The European Court of Human Rights has interpreted that freedom as representing one of the core foundations of a democratic society within the meaning of the convention and the evidence of the pluralism indissociable from that society, covering, in essence, not only the right to adopt or change one’s religion, but also the right to abandon that religion of one’s own free will. (29)

40.To my mind, therefore, the respect of a church’s right of autonomy under Article 17 TFEU cannot lead to alter the balance crafted by Article 4(2) of Directive 2000/78. That would be the outcome if defection from a church were considered a valid ground for an employee’s dismissal in a situation in which the religious organisation which acts as employer has not made the performance of the occupational activity in question conditional on belonging to that church.

41.Moreover, as the referring court observes, it may indeed be the case that the fact that an employee has left a particular church is accompanied by non-compliance with the fundamental principles and values of that church, which, in turn, may render the employee unsuitable to perform the occupational activity in question. As a matter of fact, observance of those fundamental principles and values is one of the obligations which, in the case in the main proceedings, all employees, Catholics and non-Catholics alike, are to comply with when carrying out their duties, according to the Basic Regulation. (30)

42.However, leaving that church is not in itself a sufficient basis for assuming that the employee concerned does not intend to continue complying with those fundamental principles and values and that he or she will automatically cease to fulfil the obligations which apply to him or her by virtue of the employment relationship. (31) The same is true of the argument that leaving a particular church results in a loss of confidence in the employee in the performance of his or her duties, specifically with respect to that employee meeting the ethical requirements of the church. For that argument to be accepted, the employer would still need to demonstrate, on the basis of verifiable facts, that there are doubts as to whether, as a result of the employee’s decision to leave the church, he or she is still willing or able to meet the professional requirements set by his or her employer.

43.It follows that a requirement imposed on an employee not to leave a particular church, or to rejoin it after leaving it, cannot be considered to be genuine, within the meaning of the first subparagraph of Article 4(2) of Directive 2000/78, where the religious organisation which acts as employer does not require membership of that church for the performance of an occupational activity and the employee does not openly act in a manner that is contrary to that church’s ethos. The objectively verifiable existence of a direct link cannot therefore be established between an occupational requirement and an occupational activity such as those at issue in the main proceedings, as the Court’s case-law cited in point 22 of the present Opinion requires.

44.In the light of the foregoing, the first subparagraph of Article 4(2) of Directive 2000/78 cannot be used as an appropriate basis for concluding that a difference of treatment, such as the one which results, according to the referring court, from the dismissal at issue in the main proceedings, does not amount to discrimination. Given the cumulative character of the criteria set out in that provision, there is no further need to examine whether that occupational requirement fulfils the other additional criteria set out therein, namely its legitimate and justified character.

45.In any event, as regards the justified character of an occupational requirement like that at issue in the present case, I would concisely point out that, in a situation where, on the one hand, a religious organisation does not make performance of an occupational activity conditional on membership of a church and, on the other hand, the employee concerned does not openly act in a manner contrary to that church’s ethos, it is difficult to conceive that leaving that church establishes the existence of a probable and substantial risk of undermining its ethos and autonomy, as it follows from the case-law cited in point 25 of the present Opinion. Consequently, I am of the view that, even if the occupational requirement concerned in the main proceedings could be considered to be legitimate, it could not, in any way, be regarded as justified within the meaning of Article 4(2) of Directive 2000/78.

46.As regards whether the second subparagraph of Article 4(2) of Directive 2000/78 can constitute an appropriate basis for justifying a difference of treatment such as that described by the referring court, it is important to recall that, as follows from point 20 of the present Opinion, that provision states that Directive 2000/78 is not to prejudice the right of churches and other religious organisations to require that their employees act in good faith and with loyalty to the organisation’s ethos. That said, the wording of that subparagraph starts with the words ‘provided that its provisions are otherwise complied with’, which means that the application of that second subparagraph must comply with, inter alia, the criteria set out in the first subparagraph of that article. (32)

47.In the present case, without there being any further need to examine whether leaving a particular church could give rise to an act of bad faith or disloyal conduct vis-à-vis that church’s ethos, for the purposes of the second subparagraph of Article 4(2) of Directive 2000/78, the fact remains that an occupational requirement such as that at issue in the main proceedings does not fulfil the criteria set out in the first subparagraph of that provision. Therefore, the second subparagraph thereof also must be excluded as an appropriate basis for considering that a difference of treatment such as that at issue in the main proceedings does not constitute discrimination.

48.Article 4(1) of Directive 2000/78 states that Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 of that directive is not to constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

49.According to the Court’s case-law, for a difference of treatment to be considered a ‘genuine and determining occupational requirement’ for the purposes of Article 4(1) of Directive 2000/78, such a requirement must be objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. (33) It is the nature of the occupational activity that requires a difference of treatment, not the subjective conditions of the employer. The Court has consistently held that, in so far as it allows a derogation from the principle of non‑discrimination, Article 4(1) of Directive 2000/78 must be interpreted strictly. (34)

50.In the present instance, as the Commission and the referring court correctly point out, the fact that Catholic employees cannot defect from the Catholic Church during their employment relationship, so as not to face dismissal, does not appear to be objectively necessary for the specific activity performed by a counsellor in pregnancy-related projects. First, that prohibition does not relate to the specific tasks that that counsellor is called on to perform in his or her ordinary duties, but to the relationship with the employer, namely the Catholic Church. Second, the absence of an objective necessity in a case such as that described in the order for reference can be simply demonstrated by the fact that, at the time the employee concerned in the main proceedings was dismissed, the appellant was employing six persons, two of whom were members of the Evangelical Church.

51.It follows that the argument that continuous membership of the Catholic Church constituted a genuine and determining occupational requirement in the objective sense described above does not hold up to scrutiny and, therefore, Article 4(1) of Directive 2000/78 cannot be conceived as a valid derogation from a discrimination such as that at issue in the main proceedings.

52.In the light of the foregoing considerations, and in particular of the conclusions reached in points 44, 47 and 51 of the present Opinion, I consider that Article 4(1) and (2) of Directive 2000/78 must be interpreted as meaning that the derogations contained in that article cannot be applied to a difference of treatment resulting from the dismissal of an employee by a religious organisation on account of that employee’s decision to leave the church of which that organisation forms part, where the performance of the occupational activities does not require being a member of that church and the employee concerned does not openly act in a manner that is contrary to that church’s ethos.

53.Since the referring court’s second question is asked in the event that Article 4(2) of Directive 2000/78 or, alternatively, Article 4(1) of that directive is interpreted as meaning that an occupational requirement such as that at issue in the main proceedings does not constitute discrimination, which, further to my analysis, is not the interpretation I propose in the present Opinion, the Court is not compelled to provide an answer to that second question.

IV.Conclusion

54.On the basis of the analysis set out above, I propose that the Court answer the questions referred by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:

Article 4(1) and (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 that the derogations contained in that article cannot be applied to a difference of treatment resulting from the dismissal of an employee by a religious organisation on account of that employee’s decision to leave the church of which that organisation forms part, where the performance of the occupational activities does not require being a member of that church and the employee concerned does not openly act in a manner that is contrary to that church’s ethos.

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Original language: English.

Council Directive of 27 November 2000 (OJ 2000 L 303, p. 16).

Judgment of 17 April 2018 (C414/16, ‘the judgment in Egenberger’, EU:C:2018:257).

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Judgment of 11 September 2018 (C68/17, ‘the judgment in IR’, EU:C:2018:696).

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For the sake of brevity, in the present Opinion I will refer to the expression ‘public or private organisations the ethos of which is based on religion’, as it appears in Article 4(2) of Directive 2000/78, by the term ‘religious organisations’.

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‘The Charter’.

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‘The appellant’.

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Amtsblatt des Erzbistums Köln, p. 222, in the version of the resolution of the General Assembly of the Association of Dioceses in Germany of 27 April 2015, which, according to the order for reference, is the version applicable in the present case (‘the Basic Regulation’).

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See Article 5(1) of the Basic Regulation.

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See Article 5(2)(1)(a) of the Basic Regulation.

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See Article 5(2)(2)(a) of the Basic Regulation.

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See Article 5(3) of the Basic Regulation.

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See, inter alia, judgment of 14 March 2017, Bougnaoui and ADDH (C‑188/15, EU:C:2017:204, paragraph 26).

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The judgment in Egenberger, paragraph 47.

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The judgment in Egenberger, paragraph 63, and the judgment in IR, paragraph 50.

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The judgment in Egenberger, paragraph 64, and the judgment in IR, paragraph 55.

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The judgment in Egenberger, paragraph 65, and the judgment in IR, paragraph 51.

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The judgment in Egenberger, paragraph 66, and the judgment in IR, paragraph 52.

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The judgment in Egenberger, paragraph 67, and the judgment in IR, paragraph 53.

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See, in that regard, judgments of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej Krakowie (C‑16/19, EU:C:2021:64, paragraph 51 and the case-law cited), and of 15 July 2021, WABE and MH Müller Handel (C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 59).

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The judgment in Egenberger, paragraph 58.

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The judgment in Egenberger, paragraph 57.

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See Opinion of Advocate General Tanchev in Egenberger (C‑414/16, EU:C:2017:851, point 56), which considered Article 4(2) of Directive 2000/78 to be the ‘legislative manifestation’ of Article 17 TFEU.

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The judgment in Egenberger, paragraph 51.

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The judgment in Egenberger, paragraph 52.

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Paragraph 58 thereof.

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Paragraph 48 thereof.

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See also Article 18 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948, and Article 18 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966.

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See, inter alia, ECtHR, 1 July 2014, S.A.S. v. France (CE:ECHR:2014:0701JUD004383511, § 124 and the case-law cited). See also, in that regard, Council of the European Union, ‘Freedom of religion or belief – Council conclusions’, in Press release – 2973rd Council meeting – General Affairs and External Relations – General Affairs, 16 November 2009, pp. 10-11.

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See point 5 of the present Opinion.

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In that respect, I would recall that, according to the description made by the referring court in the order for reference, the employee concerned in the main proceedings claimed that she had left the Catholic Church because of the special church levy charged on persons who, like her, live with a high-earning spouse in an interfaith marriage, and not because of her disagreement with the fundamental principles of that church.

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The judgment in IR, paragraph 49.

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Judgment of 14 March 2017, Bougnaoui and ADDH (C‑188/15, EU:C:2017:204, paragraph 40).

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See, inter alia, judgment of 13 September 2011, Prigge and Others (C‑447/09, EU:C:2011:573, paragraph 72).