# C_2019093EN.01000601.xml

| 11.3.2019 | EN | Official Journal of the European Union | C 93/6 |
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11.3.2019

EN

Official Journal of the European Union

C 93/6

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Judgment of the Court (Grand Chamber) of 22 January 2019 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Cresco Investigation GmbH v Markus Achatzi

(Case C-193/17) (1)

((Reference for a preliminary ruling - Charter of Fundamental Rights of the European Union - Article 21 - Equal treatment in employment and occupation - Directive 2000/78/EC - Article 2(2)(a) - Direct discrimination on grounds of religion - National legislation granting certain employees a day’s holiday on Good Friday - Justification - Article 2(5) - Article 7(1) - Obligations of private employers and national courts resulting from the incompatibility of national law with Directive 2000/78))

(2019/C 93/06)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Cresco Investigation GmbH

Defendant: Markus Achatzi

Operative part of the judgment

| 1. | Articles 1 and 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that national legislation under which, first, Good Friday is a public holiday only for employees who are members of certain Christian churches and, second, only those employees are entitled, if required to work on that public holiday, to a payment in addition to their regular salary for work done on that day, constitutes direct discrimination on grounds of religion.
  The measures provided for by that national legislation cannot be regarded either as measures necessary for the protection of the rights and freedoms of others, within the meaning of Article 2(5) of that directive, or as specific measures intended to compensate for disadvantages linked to religion, within the meaning of Article 7(1) of the directive. |
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1.

Articles 1 and 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that national legislation under which, first, Good Friday is a public holiday only for employees who are members of certain Christian churches and, second, only those employees are entitled, if required to work on that public holiday, to a payment in addition to their regular salary for work done on that day, constitutes direct discrimination on grounds of religion.

The measures provided for by that national legislation cannot be regarded either as measures necessary for the protection of the rights and freedoms of others, within the meaning of Article 2(5) of that directive, or as specific measures intended to compensate for disadvantages linked to religion, within the meaning of Article 7(1) of the directive.

| 2. | Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until the Member State concerned has amended its legislation granting the right to a public holiday on Good Friday only to employees who are members of certain Christian churches, in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday, provided that the latter have sought prior permission from that employer to be absent from work on that day, and, consequently, to recognise that those employees are entitled to a payment in addition to their regular salary for work done on that day where the employer has refused to approve such a request. |
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2.

Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until the Member State concerned has amended its legislation granting the right to a public holiday on Good Friday only to employees who are members of certain Christian churches, in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday, provided that the latter have sought prior permission from that employer to be absent from work on that day, and, consequently, to recognise that those employees are entitled to a payment in addition to their regular salary for work done on that day where the employer has refused to approve such a request.

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(1)  OJ C 283, 28.8.2017.

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