Anyone who works as a pastor in the church should probably belong to the respective religious community.
That much is clear.
Until now, this has also applied to many employees of church employers whose work has little or no religious connection.
This applies, for example, to nursery school teachers, teachers at schools, carers in retirement homes and administrative staff in social welfare organizations.
However, this could now change.
The ECJ had to rule on an interesting case today that could have far-reaching consequences.

In its ruling of April 17, 2018, the ECJ decided that church employers may not necessarily require church membership as an application requirement (case reference: C-414/16).
The decision may have far-reaching consequences for the German job market, as churches and church organizations are among the largest employers in Germany.
According to the judges, the denomination may only be required if the future profession is related to the religious mission statement.
If this is not the case and applicants are nevertheless required to state their religious affiliation, the applicant may be entitled to compensation.

Non-denominational Berliner rejected in Evangelisches Werk application process

The background to the decision was the case of a non-denominational applicant from Berlin, Vera Egenberger.
She had applied to the Protestant Agency for Diaconia and Development in 2012.
The call for applications was explicitly aimed at members of the Protestant church.
The content was a project in the field of racism research.
The aim was to produce a report on a United Nations convention on racism.
Ms. Egenberger was rejected, although her qualifications and experience would have made her a very good fit for the position.
She was not even invited to an interview.
She then sued for religious discrimination and demanded compensation of just under €10,000.
The institution, however, invoked the churches’ right to self-determination, which is protected by the German Basic Law.

Federal Labor Court is guided by European principles

The case initially went through the German courts.
The Federal Labor Court (BAG) was of the opinion that not only the Basic Law was relevant for the decision, but also the European principles and laws in particular.
The BAG therefore sent a request to Luxembourg to have the relevant EU directives, in particular the anti-discrimination directive, interpreted.

According to EU regulations, a church organization may require its employees and applicants to meet certain religious requirements.
This also includes membership of the respective religious community.
However, this does not apply indefinitely, even under European regulations.
Such requirements are only permissible if they are related to the religion or belief.
What is required is that the religion or belief “constitutes an essential, legitimate and justified occupational requirement in view of the ethos of the organization” according to the nature of the activity in question or the circumstances in which it is carried out.

Is faith the deciding factor in job placement?

The ECJ should now determine how the three criteria of “essential”, “lawful” and “justified” should be interpreted.
Ms. Egenberger was of the opinion that faith played no role at all for the job.
The job of producing a report on the anti-racism convention was not necessarily linked to faith – even if she was doing it for Diakonie.

ECJ: Consideration in individual cases can be reviewed by the court

The ECJ now states that a balance must be struck between the right to autonomy of churches on the one hand and the right of employees not to be discriminated against because of their religion or belief on the other.
This is the only way to achieve an appropriate balance.
In the opinion of the Court of Justice, it must be possible for such a balance to be reviewed by an independent body and ultimately by a national court in the event of a legal dispute.

According to the Luxembourg judges, a job advertisement may only be linked to a specific religion if this is in line with the principle of proportionality.
The requirement must therefore be appropriate and must not go beyond what is necessary to achieve the desired objective, but it is not the ECJ that decides whether this is the case, but the national courts.
It therefore remains to be seen how the BAG will now assess the matter.

We will be watching to see how case law develops in Germany in light of this decision.
Applicants to church employers may be able to expect compensation if they are rejected because they do not have the required denomination.