“Doomsday” did not occur. The ghastly fascination with this legal conflict, shared by some observers in the media and in legal scholarship, has not been given new fuel. With its long-awaited order in the Egenberger case, the German Federal Constitutional Court has delivered a prudent and balanced decision.

It has neither musealized ecclesiastical labour law and abandoned its established case law, nor initiated a trial of strength with the Court of Justice of the European Union by denying the primacy of Union law. At the same time, the Federal Constitutional Court has asserted itself vis-à-vis the Federal Labour Court, which had sought – using support from Luxembourg – to overturn Karlsruhe’s prior jurisprudence on ecclesiastical labour law.

From the perspective of the successful complainant, this assessment is easily written. The opposing side may see matters differently. Yet even the opposing side and the neutral observers cannot avoid acknowledging that the complainant – the Protestant Agency for Diakonia and Development (Evangelisches Werk für Diakonie und Entwicklung e.V.) – unexpectedly prevailed with its constitutional complaint: the ecclesiastical right of self-determination was affirmed, while at the same time the normativity of Union law within the German legal order was strengthened.

The existing case law is reviewed in dense language; the systematics of review reservations following incidental and principal ultra vires complaints are differentiated; and the effet utile principle is casually re-anchored in Article 4(3) TEU. The Solange reservation is classified by the Federal Constitutional Court as a further constellation of the review reservation that, exceptionally, allows the primacy of Union law to lapse.

Nevertheless, both the decision and the proceedings as a whole give rise to deeper reflection and critical questioning. Four aspects will be examined more closely in what follows.

Dynamics in the relationship between constitutional law and Union law

When the constitutional complaint was filed at the end of 2018, the legal landscape was still a different one. In May 2020, the Federal Constitutional Court for the first time upheld a constitutional complaint based on a competence violation by European institutions. Such an ultra vires decision had already been in the air in the late 2010s – and it was clear that the Federal Constitutional Court would not be able to invoke this reservation twice within this short period.

Shortly before that, in November 2019, the First Senate fundamentally recalibrated the delineation of fundamental-rights protection between the German Basic Law and Union fundamental rights in cases involving European law. Right to Be Forgotten I altered the architecture of fundamental rights: the dichotomy – a strict separation between constitutional and Union-law fundamental-rights protection – was transformed, in constellations where Germany retains some of the regulatory discretion, into a system of interlocking norms, in which constitutional requirements must be taken into account within the Member State’s margin of discretion.

This development opened the possibility for the Second Senate to insist on the characteristics of its balancing doctrine in ecclesiastical labour law vis-à-vis the Federal Labour Court in the Egenberger case. The recalibration effected by Right to Be Forgotten affords the Federal Constitutional Court avenues of intervention beyond maximal confrontation, such as ultra vires or identity review. In particular, the supreme federal courts can no longer lightly neutralize the Federal Constitutional Court by means of references to the Court of Justice of the European Union. The Egenberger decision demonstrates the institutional foresight of the First Senate.

At the same time, after the constitutional complaint had been filed, the Court of Justice set new accents in its handling of the heterogeneity of religion-state arrangements within the European Union. Whereas the European Court of Human Rights has long worked with the concept of a margin of appreciation in order to accommodate differing emphases in the understanding of religious freedom – including in institutional terms – the Court of Justice initially refused to develop functional equivalents under Union-law conditions. This changed at least gradually with the Court’s decision in WABE and Müller, to which the Federal Constitutional Court now repeatedly refers when emphasizing the space for “fundamental-rights plurality” (paras. 153, 159 f., 160, 168).

Article 17 TFEU: impotent primary law

Article 17 TFEU played a significant role in the constitutional-complaint proceedings. Inserted into primary law in 2009 – though materially traceable to a declaration of similar wording annexed to the Amsterdam Treaty – the provision recognizes the Member States’ status arrangements concerning churches as well as religious and philosophical communities. This particularity is protected under Union law by a strong formulation combining a duty of respect with a prohibition of impairment. Not a few commentators and observers have viewed Article 17 TFEU as a negative competence norm, although its dogmatic function remained contested.

The Court of Justice and the Advocate General devoted little to moderate attention to the provision in the Egenberger case. Because it was mentioned in a recital of the decisive anti-discrimination directive (Directive 2000/78/EC), the Union legislature must have taken its content into account – a position adopted by the Federal Labour Court.

The Federal Constitutional Court has now engaged extensively with Article 17 TFEU (paras. 237 ff.). In doing so, it indirectly signalled that the Court of Justice’s previously sparse engagement was insufficient – albeit in a courteous tone. The provision, the Second Senate held, is not a sectoral exemption but a balancing mandate (para. 242). The Senate develops a dogmatic vocabulary and argumentative evaluation that it offers to the Court of Justice in the spirit of best cooperative understanding.

In fact, Article 17 TFEU played virtually no role in Luxembourg’s adjudication of religion-related cases; the Court of Justice’s decisions would not have turned out differently even without the provision, including in their essential reasoning. As a factor in balancing, the norm carried no weight whatsoever. This also poses a problem from a democratic-theoretical perspective: the Member States, as masters of the Treaties, entrench a primary-law clause designed to protect their competences in matters of religion – and the Court of Justice effectively refuses to activate it. This is precisely the kind of fuel that feeds right-wing populist movements and that, in this instance, fails to ignite politically only because the churches and the AfD Party (Alternative for Germany) maintain maximum distance from one another.

The Federal Constitutional Court now skilfully exploits the argumentative potential inherent in Article 17 TFEU without seeking direct confrontation with the Court of Justice. The provision, it argues, indicates space for fundamental-rights plurality, for integrating balancing considerations developed by the Court of Justice into established constitutional doctrine. Hence, the Federal Labour Court had unconstitutionally failed to recognize this margin of discretion.

Competing models of religious freedom

The proceedings revealed a fundamental disagreement over the scope of religious freedom. For readers of the reasons, this is discernible only indirectly, namely in the statement of facts, where the submission of the Senator for Integration, Labour and Social Affairs of the State of Berlin is mentioned (para. 111). The Senator – like other competent federal and state authorities – had been given an opportunity to submit observations by the Federal Constitutional Court (§ 23(2), § 94(2) of the Federal Constitutional Court Act).

The central argument in the Senator’s submission – based on an expert opinion by a colleague, Mahlmann, from constitutional-law scholarship (see here and here) – was a sharp opposition between individual and corporate religious freedom. The core of religious freedom, it argued, lies in the believing human subject. The core of human dignity guaranteed by constitutional identity protects only this individual freedom and dignity.

Anti-discrimination prohibitions were not mere restrictions of freedom but rather enabled individual freedom. They did not restrict freedom; instead, they constituted “the legal safeguarding of universalized freedom accessible to all.” Protection against unjustified unequal treatment on grounds of religion, as invoked by Ms. Egenberger, therefore also served religious freedom and might gain even greater importance “in Europe’s increasingly harsh climate” for preserving that freedom.

The aim of this argumentation was nothing less than to reconstruct the scope of protection of religious freedom – understood as encompassing both individual and corporate dimensions – by recourse to Union law.

That this submission represents more than a particular voice from federal diversity is shown by the current criticism of the order emanating from the broader environment of the Federal Labour Court and from proponents of a “law of worldviews,” who had commissioned their own constitutional-law expert opinion appended to the complaint.

The criticism is directed at completely decoupling positive individual religious freedom from church membership. One could be religious and yet unaffiliated with any church. Or, put differently, a causal connection between a Christian outlook and church membership is allegedly not as self-evident as assumed. Ecclesiastical labour law is perceived as a privilege of social power to be deconstructed. From this perspective, curtailing corporate autonomy becomes an Enlightenment-inspired act of guaranteeing individual freedom.

This atomistic conception of freedom, however, ignores the communal dimension of religious practice. Individual religious freedom also depends on forms of communal organization – in which citizens, of course, participate voluntarily. In the sociology of religion, “believing without belonging” is as old a concept as “belonging without believing.” At the same time, a wealth of studies demonstrates that religious identity formation, communication, and practice require certain forms of institutionalization.

The right of self-determination of religious communities does not stand in principle against individual freedom; rather, it is its necessary complement. This is why the right of self-determination is the organizational consequence of the unified fundamental right to religious freedom. Corporate religious freedom, in turn, is organized individuality.

The community-oriented nature of the individual, which the Federal Constitutional Court occasionally emphasizes – for example, in its anthropological conception of the person (Menschenbild-Formel) – is not realized only, or even primarily, in the state community. It is realized above all in freely chosen corporations. This nexus, incidentally, does not apply exclusively to religious communities but to all forms of corporate freedom – within intermediating institutions.

If the opposing argument is pursued to its logical conclusion, intermediaries are neutralized as reservoirs of freedom in a liberal society by being subjected to quasi-state fundamental-rights obligations. Citizens then confront the caring power of the state and the Union directly. One may perceive the societal conditions for religiosity in this way and demand corresponding changes in constitutional interpretation. But this has nothing to do with the constitutional-law situation in the Federal Republic of Germany, which the Second Senate has reaffirmed once again (paras. 177–187).

The Federal Constitutional Court’s remarks on religious freedom also have a second addressee: the Court of Justice of the European Union. Once again, Karlsruhe employs the technique of a friendly embrace. The Constitutional Court emphasizes that, under the EU Charter, the Court of Justice expressly recognizes a corporate dimension of religious freedom and, in doing so, draws on the jurisprudence of the European Convention on Human Rights. This is reflected, inter alia, in the Court’s view that it is inappropriate to judicially assess the legitimacy of a religious community’s ethos. Neutrality and secularism of the law thus remain intact.

Yet matters are not quite so simple, as becomes clear from the reasoning as a whole. Following the trajectory of the Court of Justice’s case law, the Federal Labour Court substituted its own understanding of ecclesiastical service for a theologically grounded ecclesiology – thereby engaging indirectly in judicial theology.

At the same time, the jurisprudence of the Court of Justice reveals that religious freedom, when weighed against competing Union-law interests, (almost) always gives way, as if it were a structurally subordinate right; Müller and WABE thus far remain an outlier in this respect. Luxembourg’s case law therefore stands in stark contrast to that of the European Court of Human Rights, which has “sharpened” Article 9 ECHR as a corporate right in its jurisprudence. By contrast, the Court of Justice has so far shown little sensitivity to the cultural deep structures of religiously shaped situations – such as the historical resonance space underlying minority protection in Austrian public-holiday law or the long shadow of state-church coercion informing data-protection restrictions on proselytism in Finland.

One may therefore read the Federal Constitutional Court’s reasoning on Article 10 of the EU Charter and Article 9 ECHR as an attempt to illustrate to the Court of Justice how a religiously sensitive application of the law can function – without neglecting secular public-interest concerns.

The FCC refuses to be sidelined by federal courts

The order of the Federal Constitutional Court set aside the judgment of the Federal Labour Court against which the constitutional complaint had been directed. According to the operative part, the latter had violated the complainant’s fundamental right under Article 4(1) and (2) of the Basic Law in conjunction with Article 140 of the Basic Law and Article 137(3) of the Weimar Constitution. The conflict with the Court of Justice was avoided also because it was the national referring court that had acted unlawfully. The Eighth Senate in Erfurt, so the argument goes, failed, in applying § 9(1) second alternative of the General Equal Treatment Act, to give due weight to the complainant’s right of religious self-determination. Instead, it should properly have taken the complainant’s self-understanding – not “its own viewpoint” – as the starting point of the balancing exercise (paras. 267, 275, 282).

That the margins of discretion under Union law remained unobserved in German law resulted from a conscious course set by the Federal Labour Court. That court treats the Court of Justice as a kind of “super-court of revision” and readily aligns itself with its interpretation of Union law also because it substantively shares that interpretation. The Egenberger proceedings are a paradigmatic example of attempts by specialized judicial jurisprudence to assert itself materially against the Federal Constitutional Court – conflicts with the supreme federal courts that have accompanied the nearly 75-year history of German constitutional adjudication.

The substantive disagreement, particularly concerning ecclesiastical labour law, is only thinly camouflaged. When a delegation of the Federal Labour Court visited the Federal Constitutional Court in February 2019 – one month before the constitutional complaint was filed – the discussion included, inter alia, the labour-court review of ecclesiastical self-determination (the “chief physician” case was still very present to all involved). It is not without a certain irony that, on the very day the Egenberger order was announced, the Federal Labour Court itself published a landmark decision of its Eighth Senate that reads like a defiant methodological advance comment from Erfurt. In a press release, the claim for pay differentiation due to gender discrimination in a pairwise comparison was justified by stating that the outcome recognized by the Federal Labour Court was dictated by the case law of the Court of Justice of the European Union.

One may rightly be sceptical as to whether it is a prudent overall strategy to overcome unwelcome Karlsruhe jurisprudence through emphatically deterministic interpretations of Union law. What presents itself as “EU-law-friendly” cooperation in labour-law anti-discrimination protection ultimately amounts to an erosion of constitutional standards of protection. Fundamental-rights plurality within the judicial network must also be institutionally cultivated.

With its order in the Egenberger case, the Federal Constitutional Court has exemplarily demonstrated how such cultivation can look. It did not simply discard the well-established doctrine protecting state neutrality and secularism, but instead carefully integrated the Luxembourg requirements into it. The Federal Labour Court now has the opportunity to follow Karlsruhe’s example: a renewed oral hearing in the revision proceedings has been scheduled for 21 May 2026.

Caveat: Frank Schorkopf has represented the complainant in the proceedings 2 BvR 934/19 before the Federal Constitutional Court.