IR v JQ.
Date: 2018-09-11
43


In the second place, with regard to the question of review by national courts of the application of the second subparagraph of Article 4(2) of Directive 2000/78, it must be noted that the Court has held, in a case relating to the interpretation of the first subparagraph of Article 4(2) of that directive, that the latter provision must be interpreted as meaning that, where a church or other organisation whose ethos is based on religion or belief asserts, in support of a decision or act such as a decision or act rejecting an application for employment with it, that, by reason of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be subject, if need be, to effective judicial review by which it can be ensured that the criteria set out in that provision are satisfied in a particular case (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 59).
44


Furthermore, the fact that the first subparagraph of Article 4(2) of Directive 2000/78 refers to national legislation in force at the date of adoption of the directive and national practices existing at that date cannot be interpreted as authorising the Member States not to include compliance with the criteria set out in that provision in the scope of effective judicial review (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 54).
45


The reasons given by the Court in support of that requirement for effective judicial review, which are based on the objective of Directive 2000/78, on the context of Article 4(2), on the safeguards required from Member States, in Article 9 and 10 thereof, in order to ensure that the duties arising under that directive are complied with and the persons who consider themselves to be victims of discrimination are protected, and on the right to effective judicial protection enshrined in Article 47 of the Charter (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 47 to 49) similarly apply in circumstances, such as those in the main proceedings, where a private organisation claims, in support of a decision to dismiss one of its employees, that the latter failed to act in good faith and with loyalty to the ethos of that organisation, within the meaning of the second subparagraph of Article 4(2) of the directive.
48


Article 17 TFEU cannot invalidate that conclusion. First, the wording of that provision 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, especially Article 4(2) thereof, since that provision refers specifically to national legislation and practices in force on the date of adoption of the directive. Second, while 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, that article is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 56 to 58).
50


In that regard, the Court has found that it is clear from that provision that it is on the basis of the ‘nature’ of the activities concerned or the ‘context’ in which they are carried out that religion or belief may, in certain circumstances, constitute a genuine, legitimate and justified occupational requirement in the light of the ethos of the church or organisation concerned within the meaning of that provision. Thus the lawfulness, in the light of that provision, of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may arise either as a result of the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its evangelising mission, or of the circumstances in which the activity is to be carried out, for instance, where it is necessary to ensure that the church or organisation is presented in a credible fashion to the outside world (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 62 to 63).
51


More specifically, with respect to the three criteria laid down in the first subparagraph of Article 4(2) of Directive 2000/78, the Court has stated, first of all, that the use of the adjective ‘genuine’ means that professing the religion or belief on which the ethos of the church or organisation is founded must be necessary because of the importance of the occupational activity in question for the promotion of that ethos or the exercise by the church or organisation of its right of autonomy, as recognised by Article 17 TFEU and Article 10 of the Charter (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 50 and 65).
52


The Court then noted that use of the term ‘legitimate’ shows that the EU legislature intended to ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 66).
53


Lastly, the term ‘justified’ implies not only that a national court can review whether the criteria laid down in Article 4(2) of Directive 2000/78 are being complied with, but also that the church or organisation imposing the occupational requirement is obliged to show, in the light of the factual circumstances of the individual case, that the alleged risk of undermining its ethos or its right of autonomy is probable and substantial, so that the imposition of such a requirement is necessary (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 67).
54


In that regard, the requirement in the first subparagraph of Article 4(2) of Directive 2000/78 must be consistent with the principle of proportionality, which means that the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 68).
60


Next, it should be noted that, in the light of the documents submitted to the Court, the requirement at issue in the main proceedings does not appear to be justified within the meaning of the first subparagraph of Article 4(2) of Directive 2000/78. However, it is for the referring court to verify whether IR has established that, in the light of the circumstances of the main proceedings, there is a probable and substantial risk of undermining its ethos or its right of autonomy (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 67).
63


It must be recalled 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, such as Paragraph 9(2) of the AGG, can be interpreted in a manner that is consistent with Article 4(2) of Directive 2000/78, without having recourse to an interpretation contra legem of the national provision (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 71 and the case-law cited).
64


The Court has held, moreover, that the requirement to interpret national law in a manner that is consistent with EU law includes the obligation for national courts to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 72 and the case-law cited).
65


Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 73 and the case-law cited).
67


In the event that it is impossible to interpret the national provision at issue in the main proceedings in a manner that is consistent with EU law, it should be noted, first, 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 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 (judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 75 and the case-law cited).
68


On the other hand, a national court that finds itself in the situation referred to in the paragraph above is under an obligation to provide, within the limits of its jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to the principle prohibiting discrimination on grounds of religion or belief (see, with regard to the principle prohibiting discrimination on grounds of age, judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 35).
69


Before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal status as the treaties, that principle derived from the common constitutional traditions of the Member States. The prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is therefore a mandatory general principle of EU law and is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76).