Cresco Investigation GmbH v Markus Achatzi.
Date: 2019-01-22
32


First, the wording of Article 17 TFEU corresponds, in essence, to that of Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Treaty of Amsterdam. The fact that Declaration No 11 is expressly mentioned in recital 24 of Directive 2000/78 shows that the EU legislature must have taken that declaration into account when adopting the directive (see, to that effect, judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 57, and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 48).
33


Second, it is true that Article 17 TFEU expresses the neutrality of the European Union towards the organisation by the Member States of their relations with churches and religious associations and communities (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 58, and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 48). However, the national provisions at issue in the main proceedings do not seek to organise the relations between a Member State and churches, but seek only to give employees who are members of certain churches an additional public holiday to coincide with an important religious festival for those churches.
42


In that regard, whether the requirement that situations must be comparable for the purpose of determining whether there is a breach of the principle of equal treatment has been met must be assessed in the light of all the elements which characterise them and, in particular, in the light of the subject matter and purpose of the national legislation which makes the distinction at issue (see, to that effect, judgments of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 89, and of 26 June 2018, MB (Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 42).
43


It must also be pointed out that, on the one hand, it is not required that the situations be identical, but only that they be comparable and that, on the other hand, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner, in the light of the benefit concerned (judgment of 19 July 2017, Abercrombie & Fitch Italia, C‑143/16, EU:C:2017:566, paragraph 25 and the case-law cited).
54


In adopting that provision, the EU legislature intended, in the area of employment and occupation, to prevent and adjudicate on a conflict between, on the one hand, the principle of equal treatment and, on the other hand, the need to ensure public order, security and health, the prevention of criminal offences and the protection of individual rights and freedoms, which are necessary for the functioning of a democratic society. The legislature decided that, in certain cases set out in Article 2(5) of Directive 2000/78, the principles established by the directive do not apply to measures incorporating differences in treatment on one of the grounds referred to in Article 1 of the directive, on condition, however, that those measures are ‘necessary’ for the attainment of the abovementioned objectives (judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 55).
55


Moreover, as Article 2(5) of Directive 2000/78 establishes an exception to the principle prohibiting discrimination, it must be interpreted strictly. The terms used in that provision also suggest such an approach (judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 56 and the case-law cited).
58


It is established that freedom of religion is one of the fundamental rights and freedoms recognised by EU law and that the term ‘religion’ must be understood, in that regard, as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public (see, to that effect, judgments of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 28, and of 14 March 2017, Bougnaoui and ADDH, C‑188/15, EU:C:2017:204, paragraph 30). It follows that the objective pursued by the Austrian legislature is included among those listed in Article 2(5) of Directive 2000/78.
64


Article 7(1) of Directive 2000/78 is specifically and exclusively designed to authorise measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in society (see, by analogy, judgment of 30 September 2010, Roca Álvarez, C‑104/09, EU:C:2010:561, paragraph 33 and the case-law cited).
65


Further, in determining the scope of any derogation from an individual right such as equal treatment, due regard must be had to the principle of proportionality, which requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (see, to that effect, judgment of 19 March 2002, Lommers, C‑476/99, EU:C:2002:183, paragraph 39).
72


However, it must be noted, in the first place, that, according to the Court’s settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. If the possibility of relying on directives that have not been transposed or have been incorrectly transposed were to be extended to the sphere of relations between individuals, that would amount to recognising a power on the part of the European Union to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations (judgment of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 76 and the case-law cited).
73


Accordingly, a directive cannot be relied on in a dispute between individuals for the purpose of setting aside legislation of a Member State that is contrary to that directive (judgment of 7 August 2018, Smith, C‑122/17, EU:C:2018:631, paragraph 44).
74


Nevertheless, it should be noted, in the second place, that it is for the national courts, taking into account the whole body of rules of national law and applying methods of interpretation recognised by that law, to decide whether and to what extent a national provision can be interpreted in conformity with Directive 2000/78, without having recourse to an interpretation contra legem of the national provision (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 71, and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 63).
75


If, as appears to be the case from the order for reference, it is impossible for the referring court to interpret national law in conformity with that directive, it must be pointed out, in the third place, that Directive 2000/78 does not itself establish the principle of equal treatment in the field of employment and occupation, which originates in various international instruments and the constitutional traditions common to the Member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds, including religion and belief, as may be seen from its title and from Article 1 thereof (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 75, and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 67).
76


The prohibition of all discrimination on grounds of religion or belief is mandatory as a general principle of EU law. That prohibition, which is laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76).
77


As regards its mandatory effect, Article 21 of the Charter is no different, in principle, from the various provisions of the founding Treaties prohibiting discrimination on various grounds, even where the discrimination derives from contracts between individuals (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 77).
79


In the fourth place, it should be noted that, according to settled case-law of the Court, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category. Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 66 and the case-law cited).
80


In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and must apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category. That obligation persists regardless of whether or not the national court has been granted competence under national law to do so (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 67 and the case-law cited).
81


Nevertheless, such an approach is intended to apply only if there is a valid point of reference (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 68 and the case-law cited).
87


In the fifth place, it should be noted that the obligations imposed on employers, as recalled in paragraphs 85 and 86 above, are applicable only until measures reinstating equal treatment have been adopted by the national legislature.
88


Although Member States are obliged, in accordance with Article 16 of Directive 2000/78, to ensure that any laws, regulations or administrative provisions contrary to the principle of equal treatment are abolished, that article does not require Member States to adopt specific measures to be taken in the event of a breach of the prohibition of discrimination but leaves them free to choose, from among the different solutions suitable for achieving its intended objective, the one which appears to them to be the most appropriate for that purpose, depending on the situations which may arise (see, to that effect, judgment of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraphs 28 and 30).