IR v. JQ, Case C – 68/17, CJUE (Grand Chamber), 11 September 2018

Dismissal of a worker employed in a managerial role in a Catholic hospital due to a second civil marriage contracted after divorce. Concept of essential professional requirement pursuant to art. 4 (2) of Directive 2000/78.

Directive 2000/78/EC of the Council of 27 November 2000

1. Article 4(2) of Directive 2000/78 must be interpreted as meaning that a church or other organisation the ethos of which is based on religion or belief and which manages a hospital in the form of a private limited company cannot decide to subject its employees performing managerial duties to a requirement to act in good faith and with loyalty to that ethos that differs according to the faith or lack of faith of such employees, without that decision being subject, where appropriate, to effective judicial review to ensure that it fulfils the criteria laid down in Article 4(2) of that directive.

2. A difference of treatment, as regards a requirement to act in good faith and with loyalty to that ethos, between employees in managerial positions according to the faith or lack of faith of those employees is consistent with that directive only if, bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief constitutes an occupational requirement that is genuine, legitimate and justified in the light of the ethos of the church or organisation concerned and is consistent with the principle of proportionality. 
The specific element of the ethics of the Catholic Church, such as the sacred and indissoluble character of religious marriage, does not appear necessary in relation to the provision, in the hospital setting, of consultations and medical treatments as well as the management of the internal medicine department.

3. A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in a manner that is consistent with Article 4(2) of Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from the general principles of EU law, such as the principle prohibiting discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, and to guarantee the full effectiveness of the rights that flow from those principles, by disapplying, if need be, any contrary provision of national law.