On 17 March 2026, the European Court of Justice (CJEU) decided in its judgment C‐258/24 (Katholische Schwangerschaftsberatung) that a Catholic association cannot dismiss an employee on the sole ground that she has left the Catholic Church while simultaneously employing non-Catholics for the exact same assignment. Such a selective invocation of an organisation’s religious ethos cannot justify unequal treatment in employment relationships – in such a case, there is no evidence that the employment duties or their context objectively requires church membership. While the judgment gives due consideration to the church’s right to self-determination as guaranteed under German constitutional law, it also provides a novel way of contextualising the concept of loyalty, differentiating between the loyalty to the Catholic Church and the loyalty to the religious employer. In our view, this nuanced approach towards a tiered system of duties of loyalty offers opportunities to further foster convergence between national and European case law in balancing religious self-determination and the prohibition of workplace discrimination.

Navigating labour law, fundamental rights, and EU anti-discrimination law

The judgment stands against the backdrop of the ongoing tug of war between the CJEU and the FCC on the balancing of the fundamental right of employees not to be discriminated on the grounds of religion or belief and the right of autonomy of churches and other religious organisations whose ethos is based on religion or belief. Under the German Basic Law, religious associations enjoy certain privileges for the purpose of promoting their ethos and mission. This includes the right to determine occupational requirements in accordance with the ethos by requiring membership in and loyalty to the church. Ultimately, church employment law allows a difference in treatment on the grounds of religion (cf. Art. 9 AGG). This may raise conflict with the right to non-discrimination, which is indispensable in any employment relationship. Article 4(2) of the Equal Treatment Directive (Directive 2000/78/EC) gives concrete form to the prohibition of discrimination enshrined in Article 21 of the Charter of Fundamental Rights in employment matters. The Directive leaves a certain margin of discretion to the Member States, affording them discretion in achieving the necessary reconciliation between the various rights and interests (para 61). Accordingly, it is for the national courts to resolve the conflict by reconciling the requirements of anti-discrimination law with the particularities of German canon and German constitutional law. In this context, the CJEU takes the role of drawing red lines for the Member State discretion in achieving the necessary reconciliation with due regard to the requirements of EU anti-discrimination law.

Within those limits, the CJEU’s reasoning in Katholische Schwangerschaftsberatung remains rather cautious, allowing for the judgment to be aligned with the FCC’s interpretation of the right to religious autonomy that it most recently reaffirmed in its Egenberger decision. Katholische Schwangerschaftsberatung even offers new argumentative potential for further reconciliation of the differing approaches taken by the two courts in the interest of an effective protection against discrimination on grounds of religion.

The request for a preliminary ruling

The preliminary ruling was issued in response to a request from the German Federal Labour Court (FLC), which had previously sought a preliminary ruling on related matters on more than one occasion (notably Egenberger and IR). The FLC had to ultimately decide whether a Catholic association that advises women on pregnancy-related matters is entitled to dismiss one of its counsellors on the ground that she has left the Catholic Church, arguing that this constitutes a breach of her duty to act in good faith and with loyalty to the association’s ethos.

Dismissal on religious grounds following departure from the Church for financial reasons

The claimant (employee) reasoned her departure from the Catholic Church by citing the additional church levy required by Catholic persons who, like her, are in an interfaith marriage with a high-earning spouse. Apart from that, she neither explicitly distanced herself from fundamental Catholic values nor was there any evidence that she was no longer willing to observe the regulations of the Catholic Church, which provide that the pregnancy counselling must serve the objective of protecting the life of the unborn child.

Under the applicable canon law, leaving the Catholic Church is considered a serious breach of the duty of loyalty. As the relevant provisions apply exclusively to Catholic employees, this dismissal constitutes a difference of treatment directly based on religion (para 41). However, in accordance with Article 4(2) of Directive 2000/78, such a difference of treatment based on religion or belief can be justified for occupational activities within churches and other organisations whose ethos is based on religion, if the person’s religion or belief constitute a genuine, legitimate and justified occupational requirement by the nature and context of the activities.

In its judgment, the CJEU has determined that membership in the Catholic Church does not constitute such a genuine occupational requirement if the religious organisation simultaneously employs other persons who are not members of that church to carry out the exact same duties as those of the employee in question. The fact that the Catholic pregnancy counselling organisation concurrently entrusted non-Catholic employees with pregnancy counselling demonstrates “that the Association itself regards membership of that church as not necessary because of the importance of that occupational activity for the manifestation of the ethos of its organisation and that church’s evangelising mission, but that it is sufficient in that regard that its pregnancy counsellors undertake to comply with the regulations of that church” (para 70). Therefore, a difference of treatment directly based on religion cannot be justified in accordance with Article 4(2) of Directive 2000/78.

Towards further convergence after Egenberger

In its reasoning, the CJEU followed its approach, established in its Egenberger judgment, to interpret the requirements of Article 4(2) of Directive 2000/78 rather narrowly when reviewing national legislation that allows religious organisations to establish occupational requirements – whilst emphasizing that effective judicial review must be guaranteed (Egenberger, para 54; Katholische Schwangerschaftsberatung, para 57).

Although it is for the religious organisations to determine their ethos as such on which the occupational requirement is founded, national courts shall decide on a case-by-case basis whether the occupational requirement is genuine, legitimate, and justified from the point of view of that ethos (Egenberger, para 64). Also, for the individual assessment of whether the continuous membership in the Catholic Church satisfies those three criteria by the nature of the occupational activities and context in which they are exercised, the court referred to the guidelines set out for their interpretation in Egenberger (paras 53 et seq). By assessing the criteria in light of a detailed examination of the case referred, the Court emphasised the significance of a substantiated case-by-case decision and provided precise guidance on how the relevant circumstances relate to the interpretation of the criteria in Article 4(2) of the Directive.

At the same time, the CJEU acknowledged the Member States’ discretion to enable the autonomy of religious associations by maintaining national legislation pursuant to which occupational requirements can be justified in the case of occupational activities within churches (paras 48 et seq, 61). This aligns with the FCC’s Egenberger decision, where the FCC, with a conciliatory recognition of the requirements of EU law, has emphasised the church’s right to self-determination as a specific requirement of German fundamental rights in the balancing with the right to non-discrimination. Eventually, a particular religion may constitute a legitimate occupational requirement in light of the right to self-determination (Egenberger decision, para 201) – a finding which is not excluded by the reasoning of the CJEU.

Nonetheless, the FCC has adjusted the constitutional standards for its particular two-stage test in accordance with the requirements of EU law, requiring a direct link between the nature of the occupational activity or the circumstances of its performance and the occupational requirement – i.e. Church membership – for the assessment of the latter’s necessity in an effective judicial review (Egenberger decision, para 214). The relevant case-by-case assessment, recognised by the FCC (paras 165, 217), is ultimately allowed through Member States’ margin of discretion established by the Directive, which in turn enables (sufficient) constitutional consideration of the church’s right to self-determination.

Echoing the reasoning of the FCC, the CJEU acknowledged that, in principle, membership in the church can constitute a legitimate occupational requirement of good faith and loyalty for an employee in a religious organisation (para 67). When analysing the reasoning in a broader context, the approaches of the CJEU and the FCC appear to be converging, which allows for a productive development of joint standards when interpreting church employment law whilst maintaining room for national constitutional particularities.

Church loyalty vs. religious employer loyalty

The reasoning of the judgment offers new argumentative potential for further reconciliation of the differing approaches taken by the CJEU and the FCC in the interest of an effective judicial protection against discrimination on grounds of religion. Right at the end of its reasoning, by taking up a remark to that effect made by the referring FLC (para 32), the CJEU differentiated between the loyalty towards the Catholic Church and the loyalty towards the religious organisation as an employer when interpreting Article 4(2) of Directive 2000/78 (para 78).

According to the CJEU, the absence of loyalty to the Catholic Church does not necessarily result in the absence of loyalty to an employer with a religious ethos. Therefore, solely leaving the Catholic Church – an act that constitutes, according to canon law, a severe disloyalty to the Catholic Church – cannot serve as substantiated proof of the breach of loyalty to the employer associated with the Catholic Church and thus cannot justify the dismissal. Moreover, the CJEU emphasised that the “departure may be motivated by considerations which in no way cast doubt on that employee’s adherence to those precepts and those fundamental values” (para 71). If the employee does not further cast doubt on their loyalty by acting in an antagonistic manner, there is no sufficient risk of undermining the organisation’s religious ethos that renders the imposition of church membership a necessary and proportionate occupational requirement and justifies a difference of treatment.

In this regard, the CJEU noted that the claimant (employee) undertook to comply with the ethos and regulations of the Catholic Church in the employment contract and that there was no evidence to suggest she was no longer willing to honour that undertaking (para 79). Further, she did not act in an antagonistic manner toward the church beyond the mere submission of a declaration of withdrawal to the relevant authorities as a necessary condition for the termination of membership to be legally valid under German law (para 77). Consequently, there is no substantive difference in her acknowledgement of the organisation’s ethos compared to her non-Catholic colleagues. They do not share loyalty to the Catholic Church but only to the pregnancy counselling organisation by respecting the fundamental values and complying with the regulations when conducting the counselling.

This new approach to differentiate between loyalty to the church and loyalty to an employer associated with the church, based on an assessment of the specific case (the employee’s conduct and the nature of the work), could help the courts to reconcile the church’s autonomy and the requirement for effective protection against discrimination when interpreting church employment law in the future. Particularly, the FCC, which has consistently accentuated the far-reaching autonomy of religious associations, could use this differentiation to recalibrate its interpretation of church employment law in line with “Luxembourg”. Under the assumption that disloyalty to the church does not necessarily result in disloyalty to an ecclesiastical employer, the conflict of interests could be resolved in favour of a more effective protection against discrimination in employment relationships.

Overall, the case-by-case approach, which was already evident to some extent in the FCC’s Egenberger decision and has now been further reinforced by the CJEU, might bring church employment law more into line with contemporary social realities. In an increasingly pluralistic society, courts can strike a convincing balance between church autonomy and individual freedom by defining a tiered system with graduated duties of loyalty based on specific professional activities.