Anyone who has read our blog post on the topic of “Non-denominational in the church?” will already know that not every employee employed by a church employer necessarily has to belong to the respective religious community.
This is just one aspect of the development that is currently taking place with regard to church employment law.
This case law of the ECJ from April 2018 has now been continued.
In future, dismissal due to violations of the rite of Catholic marriage will also require special justification.

The Catholic Church places special demands on its employees, some of which extend far into the personal sphere of the employees.
These requirements are regulated in the so-called Basic Regulations for Church Service within the Framework of Ecclesiastical Employment Relationships (Basic Regulations).
Among other things, the Basic Regulations prohibit employees from remarrying after a divorce.
If an employee violates this rule, church employers are entitled to dismiss the employee – at least until now.
The European Court of Justice (ECJ) has now set limits to this.
In its ruling of 11.09.2018 (case reference: C-68/17), the ECJ decided that there must be an objectively verifiable connection between the requirements that church employers place on their employees and their specific activity to justify a dismissal.
This connection must arise from the nature of the activity and the circumstances in which it is carried out.

Catholic doctor dismissed for remarriage

The Court’s decision was based on the following case: The employee concerned had been working as a senior doctor in a Catholic hospital since 2000.
He was married according to the Catholic rite.
However, his first wife separated from him in 2005 and the marriage was divorced in March 2008.
When the person concerned remarried in a civil ceremony in August 2008, the first marriage was divorced but not annulled under church law.
The doctor only applied for the annulment of the marriage under church law after the wedding.
He informed his employer of this in a conversation on January 26, 2009.
In a letter dated March 30, 2009, the church then terminated the employment relationship with effect from September 30, 2009.

According to the Church, the second marriage constitutes a breach of the employee’s duties that justifies dismissal.
This is because Art. 5 II No. 2c of the constitution entitles the church to dismiss an employee for entering into an unlawful civil marriage if, according to the specific circumstances, this act is objectively likely to impair the credibility of the church.
According to church law, the prerequisite for a marriage is that there has never been a valid marriage as understood by the church.
Only when a marriage is declared null and void is it legally established that, from the Church’s point of view, it was not valid according to Catholic marriage law, i.e. that a valid marriage never existed according to Catholic understanding.
However, the doctor’s marriage – at least at the time of the second wedding – had not been declared null and void.

Dismissal socially unjustified?

The doctor put forward the following arguments against the dismissal: He had already informed the managing director in the fall of 2006 about the marriage-like relationship with his current wife and the managing director had also stated in March 2009 that he was not interested in the doctor’s private life.
Furthermore, the separation and the second marriage were not known to the public before the dismissal and had therefore not caused any offense.
Therefore, the dismissal was socially unjustified (§ 1 KSchG).
Finally, the breach of loyalty obligations alone did not constitute objective justification for the termination of the employment relationship.

The church contradicts this.
It claims that it only became aware of the new state marriage and the previous marriage-like relationship on November 25, 2008.
By entering into the second marriage, the doctor had entered into an invalid marriage within the meaning of Art. 5 II of the constitution.

Labor court upholds dismissal protection claim

The decision was preceded by a long process before the German courts up to the Federal Constitutional Court: The Düsseldorf Labor Court (ArbG) had initially upheld the lawyer’s action for protection against dismissal after conducting a balancing of interests.
In principle, it was left to the churches to determine what the credibility of the church and its proclamation required and to observe the constitution in this respect.
However, it must still be examined whether the breach of loyalty obligations also objectively justifies the termination of the employment relationship.
This was not the case here.
Due to the annulment proceedings that had been initiated, it was not yet clear whether the doctor had entered into an invalid marriage at all.
However, the Basic Regulations only specify an “invalid” marriage as a serious breach of loyalty.
It was therefore not apparent why it would have been unreasonable for the church to wait for the annulment decision.
The church’s interest in maintaining its credibility had not been specifically jeopardized.

Appeal, revision, constitutional complaint, request to the ECJ

The employer’s appeal and appeal on points of law before the Düsseldorf Regional Labor Court (LAG) and the Federal Labor Court (BAG) were dismissed.
In addition to the aspects cited by the Labor Court, the principle of equal treatment under labor law was cited as a reason for the decisions.
Prior to the dismissal, two other chief physicians had been treated differently, although they were in the same situation.
The BAG also took into account the fact that the doctor still stood by the principles of Catholic doctrine of faith and morals.
It also took into account in its decision that the desire to live together in a marriage is protected by fundamental rights.

The church lodged a constitutional complaint against the BAG’s decision.
The Federal Constitutional Court (BVerfG) referred the case back to the BAG.
The BAG was to review, on the basis of a plausibility check, whether the duty of loyalty is an expression of a religious tenet.
The BVerfG accused the BAG of having substituted its own assessment of the significance of the breach of loyalty for the church’s assessment.
However, the church’s assessment was in line with recognized church standards and did not contradict fundamental constitutional guarantees.

The BAG therefore referred several questions on the interpretation of Art. 4 II of Directive 2000/78/EC to the ECJ for a preliminary ruling.

ECJ: Requirements for employees must comply with the principle of proportionality

The ECJ ruled that the national courts must review whether the requirements of church employers are essential, lawful and justified.
This depends on the nature of the activity in question and the circumstances in which it is carried out.
Only if there is an objectively verifiable connection between the specific activity and the requirements imposed is unequal treatment on the grounds of religion lawful.
In this respect, the Court interprets the criteria of materiality, justification and lawfulness in the same way as in the Egenberger case (case reference: C-414/16), which gave rise to our article “Non-denominational in the church?“.

In addition, according to the ECJ, national courts must review the compatibility of requirements for employees with the principle of proportionality.
This means that the requirements must be appropriate and must not go beyond what is necessary to achieve the intended objective.

In the present case, the ECJ therefore came to the conclusion that the core area of the religious community was not sufficiently affected by the activities of the head physician to justify dismissal for remarriage.
According to the ECJ, the acceptance of the Catholic Church’s understanding of the sacred and indissoluble nature of ecclesiastical marriage is not necessary for the manifestation of the church’s fundamental moral position.
In other words, working as a chief physician does not require the employee to submit to the particular Catholic understanding of marriage.

Church labor law in the course of time

Church employment law must therefore also adapt to some extent to the changing times.
Special requirements for church employees increasingly require special justification than was previously the case.
Duties of loyalty that used to be taken for granted are increasingly viewed critically.

This is reflected not only in the latest case law, but also in the revision of the constitution.
Whereas according to the version of 20.06.2011, the conclusion of a marriage that was invalid according to the understanding of faith and the legal order of the church was sufficient grounds for termination, the current version also requires a concrete risk of causing public offense.
In this respect, the revision in this area has already created a little more connection to secular reality.

The church will not be able to defend itself against the changing times in the future either.
For historical reasons, the Basic Law grants the churches far-reaching powers and recognizes the churches’ right to self-determination.
One manifestation of this is ecclesiastical employment law, to which, for example, anyone who works as a cleric in the service of the church is subject.
Ecclesiastical employment law cannot be dealt with using the principles of secular employment law.
However, where the church concludes private autonomous employment contracts with employees, recent case law tends to call into question the special role of churches.
This affects countless employees in hospitals, daycare centers, Caritas, etc.

In addition, irrespective of legal considerations, the perception of the political and social debate is that the understanding of the increased commitment that churches demand from their employees is dwindling rather than growing.
Among other things, this may be due to the fact that the principles are often handled differently in detail in the various churches and, in this respect, individual faith communities are better and more open-minded in the public eye than others.
The declining acceptance can also be explained by the general decline in membership numbers in religious communities.
We will continue to keep an eye on developments in church labor law in the future.