The German Federal Constitutional Court (FCC) has handed down its long-awaited decision in the Egenberger case. The court found that the constitutional complaint by Diakonie, an organisation of the Protestant Church, was well-founded. The decision seems to be a confirmation by the FCC of the very strong protection of religious communities’ corporate religious freedom and right to self-determination. The case law of the FCC allowed religious communities up to now to make religious affiliation an occupational requirement for almost all kinds of employment. This right is of great social importance given that Christian churches and their organisations are the second largest employers in Germany.

At the same time, however, the FCC incorporated the standards set out in European Union (EU) anti-discrimination law and concretised by the Court of Justice of the European Union (CJEU) jurisprudence in the interpretation of German constitutional law. The decision is thus turning the page on a decades-long legal debate. It opens the door for a conception of religious freedom that meaningfully protects the right to religious self-determination of religious communities, and at the same time it is sensitive to the freedom of religion of individuals and the prohibition of discrimination on the grounds of religion.

High stakes

The case concerns a constitutional complaint filed in 2019 against a ruling by the German Federal Labour Court that implemented the CJEU’s Egenberger decision into German law. That decision had been prompted by a preliminary reference from the Federal Labour Court itself to the CJEU.

Vera Egenberger had applied for a fixed-term, part-time position with Diakonie, an association registered under German law, affiliated with the Protestant Church of Germany. The main task of the position was to produce a shadow report on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Diakonie had made membership in a Christian church a precondition for employment. As Vera Egenberger had no religious affiliation, she was not invited to a job interview.

Applying the CJEU’s interpretation of Article 4(2) of Directive 2000/78/EC (Employment Equality Directive), the Federal Labour Court held that both the nature of the work and the context in which it is performed must be considered when assessing whether a religious affiliation constitutes a genuine and proportionate occupational requirement for a specific position. It found Diakonie’s requirement disproportionate and awarded compensation for discrimination on the grounds of religion.

In its constitutional complaint, Diakonie argued that the Federal Labour Court’s decision violates its right to religious self-determination derived from its corporate freedom of religions guaranteed by Articles 4(1) and 4(2) in conjunction with Article 140 of the Basic Law and Article 137 of the Weimar Constitution (WRV). Moreover, Diakonie claimed that the CJEU’s Egenberger judgement, on which the Federal Labour Court’s ruling was based, constituted an ultra vires act and infringed Germany’s constitutional identity.

The complaint thus framed the case as a legal battleground with potentially Europe-wide ramifications. A finding by the FCC that the CJEU’s Egenberger decision was ultra vires and violated Germany’s constitutional identity could have dealt a serious blow to the supremacy of EU law – particularly at a time when that principle faces challenges in the context of the EU’s rule-of-law conflicts with Hungary and Poland. The challenge was significant given the FCC’s firmly established case law granting religious communities wide discretion over the occupational requirements they chose, the FCC’s ultra vires jurisprudence, and critical remarks about the CJEU’s Egenberger decision and its parallel case, IR v JQ, made by then-sitting FCC judges (these comments gave rise to a demand that the judges recuse themselves from the proceedings (cf. LTO, Verfassungsblog). The stakes were therefore high.

Reconfiguring the normative matrix of religious freedom in Germany

The FCC found that the complaint was well-founded. In its view, the Federal Labour Court had violated Diakonie’s right to religious self-determination derived from the corporate right to freedom of religion through the specific outcome of its weighing and balancing exercise. It therefore overturned the challenged judgement and remanded the matter to the Federal Labour Court.

However, the FCC’s reasoning implies a significant reconfiguration of its previous understanding of the right to religious self-determination, corporate religious freedom and its relation to individual religious freedom, constitutional equality guarantees, and anti-discrimination law. Moreover, the FCC found that both the ultra vires claim and the claim of a violation of Germany’s constitutional identity were without merit, which is good news for the integrity of the European legal order.

Thus, while Vera Egenberger ultimately lost her case, she succeeded in prompting a decision that not only strengthens the supremacy of EU law and the normative effects of equality guarantees and prohibitions of discrimination in both constitutional and Union law, but also – crucially – serves to enhance the protection of religious freedom in Germany.

No ultra vires act

The FCC did not engage substantively with the challenge to the decision of the Federal Labour Court based on an alleged violation of Germany’s constitutional identity. It declared it inadmissible. Such a claim derives from the guarantee of human dignity under Article 1 of the Basic Law and the right to vote under Article 38(1) of the Basic Law, both of which are limited to natural persons. Consequently, the complainant, as a registered association, lacked legal standing.

The FCC did, however, engage substantively with the ultra vires claim. It reiterated the established standards in its ultra vires jurisprudence: to constitute an ultra vires act, an act of an organ of the EU must amount to a manifest violation of the principle of conferral, which is based on an interpretation of an EU competence that is manifestly unjustifiable and is of structural importance for the allocation of competences between the EU and Member States (para. 229).

The FCC addressed three important questions. First, regarding Article 17(1) Treaty on the Functioning of the EU (TFEU), which stipulates that “the Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States,” the FCC held that the CJEU was correct in not interpreting this provision as a “carve-out” (Bereichsausnahme). Such an interpretation would have prohibited any EU legislation that limits the established rights of religious associations. Rather, Article 17(1) TFEU requires that Member States’ special constitutional arrangements concerning religious communities be appropriately taken into account in any balancing exercise – a requirement that, in the FCC’s view, the CJEU adequately met in its judgement (para. 246).

Second, the CJEU did not misinterpret the scope of the EU’s competence under Article 19 TFEU to adopt anti-discrimination legislation. The scope of this competence does not prevent the Union from enacting legislation that incidentally affects matters beyond its direct competence. The FCC rightly drew a parallel to comparable cases (para. 248 ff.) in which the CJEU held that the absence of competence to regulate relations between the state and religious communities does not preclude the application of laws pursuing unrelated purposes – such as data protection (cf. CJEU, Tietosuojavaltuutettu, para. 74, General Data Protection Regulation, Article 9(1), Article 9(2)(d)) – that nevertheless have indirect effects on religious communities.

Finally, the CJEU’s interpretation of Article 4(2) of Directive 2000/78/EC, in the FCC’s view, struck a fair balance between corporate and individual religious freedom and guarantees of equality and prohibitions of discrimination under Article 21 of the EU Charter, which enjoys direct horizontal effect in Union law. The FCC noted that this interpretation is consistent with the case law of the European Court of Human Rights (ECHR). The CJEU rightly emphasized that courts must be empowered to ensure that the standards set out in Article 4(2) of Directive 2000/78/EC are respected (para. 254 ff.).

Moreover, the FCC concluded that the level of fundamental rights protection required by the Basic Law is maintained under EU law as interpreted by the CJEU. Importantly, the FCC stressed that the CJEU and the FCC overall apply comparable standards when assessing the admissibility of religious exceptions in employment law (para. 215 ff.).

Changing course by “sharpening” and “concretising”

The FCC emphasized that the fundamental rights enshrined in the Basic Law constitute the standard for assessing the constitutional complaint. However, these rights must be interpreted in light of EU law and the guarantees of the ECHR, in accordance with the Court’s established case law on the interaction of fundamental rights within Europe’s multilevel system of fundamental rights protection. The FCC also reaffirmed the supremacy of EU law over constitutional law.

Drawing on the reference in EU law to Member States’ national traditions governing the relationship between the state and religious communities, as well as on recent CJEU case law, the FCC recognised a normative space for what it called a “pluralism of fundamental rights” (para. 159 ff.). Although the Court did not spell out this concept in detail, it can be understood as functionally equivalent to a “margin of appreciation”, leaving Member States a certain amount of room for interpretation when applying Union law.

Building on this approach, the FCC reformulated the criteria developed by the CJEU – that religion must constitute a genuine, legitimate, and justified occupational requirement – into its own two-pronged test.

The first stage consists of a plausibility review of a religious community’s claim that certain forms of employment are connected to its ethos. Hereto, the FCC introduced the first major modification of its earlier test. Courts are no longer limited to verifying whether an occupational requirement is a plausible expression of the religious community’s ethos. They must now also determine whether there is, objectively, a direct link between the occupational requirement and the tasks in question, considering the nature of those tasks and the context in which they are performed (para. 217).

The second stage involves balancing the right to religious self-determination derived from corporate religious freedom against the employee’s rights. At this stage, the FCC introduced the second – and crucial – modification: the occupational requirement must be proportionate in light of the nature of the occupational activities and the context in which it is performed. Accordingly, when assessing the permissibility of religious affiliation as an occupational requirement, it is necessary to differentiate between different categories of employment. Moreover, the FCC clarified that the concept of a Christian “community of service” (Dienstgemeinschaft) does not provide a blanket license to make church membership a legitimate occupational requirement across all types of employment – from priest to gardener (para. 219).

Through this reformulation, the FCC effectively incorporated the central element of the CJEU’s Egenberger decision into German constitutional law: a proportionality analysis relative to the nature of the activity and its context. The admissibility of such an analysis has been a point of contention in German law for decades. It is incorrect to assume that the strong protection of corporate religious freedom has always been the uncontested interpretation of Article 4 of the Basic Law, in conjunction with Article 140 of the Basic Law and Article 137 WRV. On the contrary, already during the Weimar Republic, influential figures such as Gustav Anschütz held a different view (Cf. G. Anschütz (1933), Die Verfassung des Deutschen Reiches vom 11. August 1919: Ein Kommentar für Wissenschaft und Praxis, 14th Edition, Berlin, Scientia Verlag Aalen, p. 635). In the 1970s and 1980s, the Federal Labour Court applied proportionality tests (cf. e.g., Federal Labour Court, Judgement of 31 Oktober 1984 – 7 AZR 232/83 – Decisions of the Federal Labour Court, BAGE 47, 144–160 with further references to the case law) until it was overruled by the FCC in 1985 (Decisions of the Federal Constitutional Court, BVerfGE 70, 138). Since then, many scholars and courts have advocated for a constitutional course correction by reintroducing such proportionality tests.

The incorporation of the proportionality test is therefore the pivotal point of the judgement. It represents more than a “concretization” or “sharpening” of the former standard, as the FCC describes this change of course in the respective judgement. Rather, it constitutes a substantial, constitutionally well-justified, fundamental rights-friendly, and most welcome shift in normative perspective.

BVerfG – the ultimate court of appeal?

In light of these standards, the FCC assessed the constitutionality of the Federal Labour Court’s decision (para. 267 ff.). It held that the latter had not properly applied the two-pronged test to the occupational activity in question.

First, the Federal Labour Court had failed to adequately consider that the activity involved externally representing a Christian perspective on racism – an activity that the FCC believed required credibility grounded in the employee’s affiliation with a Christian church. The Federal Labour Court had therefore overlooked the objective link between the occupational activity and the occupational requirement.

Second, the FCC found that this occupational requirement was proportionate to the tasks of preparing the shadow report and credibly presenting Diakonie’s Christian stance on racism to the public. Accordingly, Diakonie’s right to religious self-determination derived from corporate religious freedom should have been accorded greater weight than the Federal Labour Court had assumed.

In the course of its reasoning, the FCC made an important observation: it accepted the Federal Labour Court’s conclusion that Article 9(1), first alternative, General Equal Treatment Law (Allgemeines Gleichbehandlungsgesetz (AGG)) (allowing occupational requirements solely on the basis of a religious community’s ethos) violates EU law and is therefore inapplicable (para. 269) – a conclusion that many commentators had maintained since the provision’s enactment.

Some critical questions

The FCC’s decision invites a number of critical questions. For instance, one may ask what “fundamental rights pluralism” will concretely mean in the future when balancing the right to religious self-determination, corporate freedom of religion, individual freedom of religion, and equality – especially given that the FCC repeatedly emphasises that corporate religious freedom carries greater weight under German constitutional law than under EU law.

At the same time, considering the substantial modifications introduced by the FCC’s new test, there appears to be no normative space to re-establish the strong protection of corporate religious freedom of the past through the back door of “fundamental rights pluralism”. Moreover, it is correct that EU law concerning the relationship between the state and religious or belief communities allows for such a “margin of appreciation”. Furthermore, the CJEU has expressed similar ideas to reinforce protection against discrimination. CJEU, Wabe e.V. v MH Müller Handels GmbH, held that Article 2(2)(b) Directive 2000/78/EC must be interpreted as meaning that national provisions protecting the freedom of religion may be taken into account as more favourable provisions, within the meaning of Article 8(1) Directive 2000/78/EC, in examining the appropriateness of a difference of treatment indirectly based on religion and belief.

What is more, it is worth considering whether the FCC’s evaluation of the Federal Labour Court’s decision is entirely convincing and whether the FCC may, in this instance, have assumed the role of a specialised court. After all, the Federal Labour Court conducted a detailed analysis of the facts and their legal implications. The FCC’s exact competences in this area are, however, far from precisely circumscribed. It is thus not obvious that the FCC usurped the powers of specialised courts. Nevertheless, it is significant that the FCC applied a standard – credible external representation – for justifying an occupational requirement that reflects a legitimate concern of religious and belief communities.

Making EU law count

Ultimately, the decision must be welcomed for several reasons. It strengthens the European legal order by reaffirming the supremacy of EU law – even over constitutional law – at a time of crisis. It upholds the CJEU’s interpretation of EU law and rejects the claim that the CJEU’s Egenberger judgement constituted an ultra vires act, thereby reinforcing the CJEU’s legitimacy. In this context, the FCC accepts the CJEU’s balanced interpretation both of Article 17 TFEU and of the Union’s competence under Article 19 TFEU to enact anti-discrimination legislation as applicable also to religious communities. This is crucial, as such laws safeguard religious freedom from politically motivated reinterpretations of the basic framework of state–church relations in Member States, which could be employed to limit the rights of certain religious groups.

Moreover, it is noteworthy that the FCC refrained from engaging with the claim of Germany’s constitutional identity and did not relax the strict standards of admissibility for such claims.

Universalizing freedom through equality

By incorporating a proportionality review relative to the nature of the occupational activity and the context in which it is performed, the FCC has constitutionally enabled a more differentiated approach to this multi-polar conflict of rights. This allows both the rights of religious communities and those of employees – including their individual freedom of religion – to be accorded their proper weight.

This development is particularly significant given that the number of employees working for the Christian churches and their affiliated organisations has grown substantially since 1945. Today, apart from the state, these churches and affiliated organisations constitute the largest employers in Germany, the latter employing about 1,3 million employees. In several sectors, individuals may have no realistic alternative but to seek employment with church-affiliated organisations. This can create pressure to maintain formal church membership not out of genuine belief but as a means of securing employment – an outcome that not only is problematic from the perspective of freedom of religion but also is deeply at odds with the ethos of any religious community.

Finally, the FCC emphasised the necessity of judicial control over compliance with these standards. It rejected the complainant’s argument that such judicial oversight would amount to a “theocracy of judges”, rightly distinguishing between the legal delineation of the limits of religious freedom and any theological evaluation of religious doctrine. To determine whether wearing an Islamic headscarf as a teacher in a public school or as an official in a court proceeding is permissible is equally not a question of a theological evaluation of this practice but of determining the justified limitations of a fundamental right (cf. FCC, judgement of 27 January 2015, BVerfGE 138, 296 (headscarves worn by teachers permissible); FCC, judgement of 14 January 2020, BVerfGE 153, 1 (headscarves worn in court impermissible)).

A future task will be to develop, on the basis of the constitutional standards outlined above, a differentiated body of case law determining under which circumstances religious affiliation constitutes a permissible occupational requirement and when it does not. In recent years, German courts have already made progress in this regard (cf. e.g. LAG Niedersachsen (8. Kammer), Urteil vom 12.01.2022 – 8 Sa 599/19), while controversial cases are currently pending before the CJEU, whose forthcoming judgements will provide further clarification (cf. Opinion of Advocate General Medina, Katholische Schwangerschaftsberatung v JB, on the question of whether dismissal on account of an employee’s decision to leave the Catholic Church is justified).

The FCC’s decision poses no substantial practical challenge for the Christian churches, which in recent years have already adjusted their employment practices along the lines demanded by the CJEU – and now confirmed by the FCC (cf. Council Directive on Requirements for Professional Collaboration in the Protestant Church in Germany and its Diakonie (Collaboration Directive); Richtlinie des Rates über Anforderungen an die berufliche Mitarbeit in der Evangelischen Kirche in Deutschland und ihrer Diakonie (Mitarbeitsrichtlinie), Article 4). There is no reason why the same should not apply to other religious or belief communities.

Importantly, the FCC accorded significantly greater constitutional weight to equality and non-discrimination in relation to the right to religious self-determination derived from corporate freedom of religion than it had in the past. Yet it did more than that: it also reinforced the protection of religious freedom itself. Religious freedom is not only – or even primarily – the freedom of organised, institutional religious bodies, but also the right of individuals. Crucially, this includes individuals who, regardless of their personal faith, now enjoy a broader and legally secured opportunity to access the many forms of employment offered by organisations with a religious ethos in Germany.

This observation points to an insight already noted above in connection with the interpretation of Article 17 TFEU: equality guarantees and anti-discrimination law not only strengthen equality but also increase freedom. They are instruments for universalising freedom and establishing an order of liberty for all. Accordingly, the CJEU, OP v Commune d’Ans (para. 40), stated that the prohibition of any discrimination based on religion enshrined in Article 21 of the EU Charter is the “corollary” of the right to freedom of thought, conscience, and religion guaranteed by Article 10 of the EU Charter.

This role of anti-discrimination law as a safeguard for freedom of religion and belief may become even more important in the future. This is especially true given the disturbing rise of antisemitism and islamophobia in Europe, alongside the unsettling spread of identitarian political ideologies of exclusion and intolerance.

Disclaimer: The author prepared the legal expert opinion submitted by the Senatorin für Integration, Arbeit und Soziales of Berlin to the German Federal Constitutional Court in the Egenberger case.