‘Non secular autonomy’ captures the concept non secular communities must be free to handle their very own affairs in accordance with their beliefs and with out interference by the State. Repeatedly, the European Court docket of Human Rights (ECtHR) has recognised that ‘the autonomous existence of spiritual communities is indispensable for pluralism in a democratic society’ and that non secular autonomy is one dimension of the liberty of faith protected by Article 9 of the European Conference of Human Rights (eg Metropolitan Church of Bessarabia, para. 118; Fernández Martínez, para. 127). It’s, nevertheless, clear that non secular autonomy is just not limitless; it might come into battle with different elementary rights, comparable to the proper to non-discrimination. This was on the centre of two earlier choices of the European Union’s Court docket of Justice (ECJ): Egenberger and IR v JQ. These choices generated a vigorous debate: the Court docket was criticised by some for the restrictions that it positioned on non secular autonomy, in addition to its willingness to change established nationwide legislation on this matter (eg Unruh). However, on 17 March 2026, the Grand Chamber of the ECJ reaffirmed its method by way of its choice in Case C-258/24 Katholische Schwangerschaftsberatung v JB EU:2026:211.
Abstract of the Factual and Authorized Dispute
Katholische Schwangerschaftsberatung is ‘a specialised affiliation inside the German Catholic Church, which is devoted to serving to kids, younger folks, ladies and their households who discover themselves specifically circumstances’ (ECJ, para. 22). The applicant labored in a crew that supplied counselling to pregnant ladies. The rules of the Catholic Church specified that the target of such counselling was to encourage ladies to proceed with their being pregnant. On the time of her dismissal, there have been six individuals within the crew: 4 had been members of the Catholic Church and two had been members of the (Protestant) Evangelical Church (Opinion of AG Medina, para. 7).
The rules of the Catholic Church in Germany established an obligation of loyalty that utilized to all workers, irrespective of faith. For Catholic workers, there have been particular obligations: leaving the membership of the Church was expressly recognized as constituting a critical breach of that obligation (ECJ, para, 21). JB was a member of the Catholic Church when she was employed, however, in 2013, she took steps to go away the Church. She did so to keep away from a diocesan levy that utilized to her as a result of she was in ‘an interfaith marriage with a high-earning partner’ (para. 24). Her employer later tried to steer her to re-join the Church, however she refused to take action. Because of this, her employment was terminated in 2019.
The Federal Labour Court docket discovered that JB’s dismissal constituted direct discrimination on grounds of faith or perception, opposite to the German laws implementing Directive 2000/78. Nevertheless, the Directive incorporates exceptions for real occupational necessities (Article 4(1)) and occupational necessities of spiritual ethos organisations (Article 4(2)). The Federal Labour Court docket sought an interpretation by the ECJ of whether or not this employer’s requirement to stay a member of a selected church was suitable with both of those exceptions. As Mulder explains, the choice to refer this query to the ECJ displays a long-running authorized debate between German courts.
The judgment of the Court docket of Justice
The Court docket begins by accepting the premiss that this was a case of direct discrimination on grounds of faith or perception as a result of the requirement utilized completely to Catholic workers (para. 41). It focuses on whether or not the Article 4(2) exception for non secular ethos organisations was relevant. Its first paragraph permits variations of therapy based mostly on an individual’s faith or perception that represent a ‘real, reputable and justified occupational requirement’. The second paragraph permits such organisations ‘to require people working for them to behave in good religion and with loyalty to the organisation’s ethos’.
The Court docket recognises that, whereas the Directive ‘goals to guard the basic proper of employees to not be discriminated in opposition to on grounds of their faith or perception’, Article 4(2) demonstrates that the Directive ‘goals to take into consideration the proper of autonomy of church buildings and different public or non-public organisations whose ethos is predicated on faith or perception’ (para. 43). The target of Article 4(2) is to discover a ‘honest steadiness’ between these elementary rights the place they conflict with one another (para. 47). Drawing upon its earlier choices in Egenberger and IR v JQ, the Court docket holds that Article 4(2) requires the next:
(i) a ‘direct and objectively verifiable hyperlink’ between the actions that the worker was performing and the requirement that she stay a member of the Catholic Church, and
(ii) that this requirement is ‘real, reputable and justified having regard to the organisation’s ethos’ (para. 58).
It’s also essential that the requirement complies with the precept of proportionality (para. 56).
In relation to level (i), the Court docket accepts that, within the mild of the organisation’s ethos, there’s a direct hyperlink between the supply of being pregnant counselling and the requirement to behave in good religion and with loyalty to that ethos (para. 64). It’s, nevertheless, sceptical that this extends to a requirement to stay a member of the Catholic Church. It acknowledges {that a} ‘heightened obligation of loyalty’ might be warranted for sure posts due to their ‘particular mission’ (para. 67). It rejects, nevertheless, the proposition that this could prolong to all roles inside all organisations connected to the Catholic Church (para. 68).
In relation to level (ii), the Court docket holds that the requirement of remaining a member of the Catholic Church ‘doesn’t seem’ to fulfill the primary criterion of being a ‘real’ requirement (para. 69). The Court docket had beforehand interpreted ‘real’ as which means that ‘professing the faith or perception on which the ethos of the church or organisation is based should seem essential due to the significance of the occupational exercise in query for the manifestation of that ethos or the train by the church or organisation of its proper of autonomy’ (Egenberger, para. 65). Within the current case, the Court docket factors out that the presence of being pregnant counsellors who weren’t members of the Catholic Church signifies that membership was not essential to carry out this position (para. 70). The Court docket accepts that it was essential for workers to behave in accordance with the Church’s rules, eg on the aims of being pregnant counselling. It disagrees, although, with the proposition that ‘mere departure from that church’ constituted ample proof that the worker was not appropriate to carry out her position (para. 71). The Court docket additionally questions whether or not this requirement was justified and proportionate. In its view, refusing to rejoin the Catholic Church was not ample to indicate that the applicant had dedicated ‘an act antagonistic to that church’ (para. 76), as a result of her causes for leaving the Church weren’t meant to distance herself from the Church’s ‘precepts and elementary values’ (para. 72).
An erosion of spiritual autonomy?
This case, like its predecessors, pits two elementary rights in opposition to one another: the proper to spiritual autonomy and the proper to non-discrimination. It’s troublesome to flee the conclusion that the ECJ locations larger weight on the person proper to non-discrimination than the collective proper to spiritual autonomy. That is primarily due to the way in which during which the Court docket has chosen to interpret Article 4(2). The Court docket concedes that, whereas the Directive identifies the factors for balancing these elementary rights, that is ‘with out particularly and definitively allocating weight to the pursuits at stake’ (para. 48). Due to this fact, the case-law has been decisive in shaping how Article 4(2) is utilized in observe.
In every of the three circumstances regarding non secular ethos employers, the Court docket has adopted a strict commonplace of scrutiny. It has laid down a rigorous set of cumulative standards that considerably constrain the circumstances underneath which non secular ethos organisations can apply loyalty necessities. Notably, the straitjacket of this method seems to be qualitatively completely different to that discovered the case-law of the ECtHR. The latter identifies a variety of things that must be taken in account and weighed within the steadiness (eg Fernández Martínez, paras 133-151). The ECtHR acknowledges that one issue to be thought of is whether or not the applicant ‘knowingly and voluntarily accepted a heightened obligation of loyalty in the direction of the Catholic Church’ (eg Fernández Martínez, para. 135). This issue is given little weight within the ECJ’s evaluation. Furthermore, the ECJ exhibits restricted concern for the notion of the non secular neighborhood as to the seriousness of an worker making a aware option to rupture her membership of the church. The Court docket asserts that this isn’t ‘an act antagonistic to that church’ (para. 76). For any non secular neighborhood, the choice of an individual to take formal steps to finish her membership thereof is profoundly vital and sure alerts a point of antagonism within the relationship between the 2.
The general tenor of the judgment is, due to this fact, one which leans in the direction of upholding the proper to non-discrimination over the proper to spiritual autonomy. That stated, the current case gives some novelty insofar because the Court docket accepts that the duties of a being pregnant counsellor had been linked to the non secular ethos of the organisation, ie defending the lifetime of the unborn baby (para. 22). Notably, the Court docket recognises that requiring workers to ship counselling in compliance with the Church’s rules on this way constituted a real, reputable and justified occupational requirement (para. 64). This a part of the judgment could be considered as akin to an olive department, whereby the Court docket endeavours to reassure non secular communities that it’s ready to uphold loyalty necessities, however provided that they meet the Court docket’s requirements.
The connection of the ECJ with nationwide courts
One of many placing options of the judgment is that the Court docket leaves nearly no latitude for the referring courtroom in tips on how to apply Article 4(2) to the scenario of the applicant. By way of an in depth engagement with the factual scenario of the case, the Court docket applies a heavy hand in looking for to find out the result of proceedings when this case returns to the nationwide jurisdiction. That is stunning as a result of earlier within the judgment the Court docket states:
Directive 2000/78 leaves a margin of discretion to the Member States, permitting them to take account of their very own particular context, and affords every Member State discretion in attaining the mandatory reconciliation between the assorted rights and pursuits at challenge, so as to guarantee a good steadiness between them’ (para. 61).
That is drawn from the Court docket’s case-law on restrictions on sporting seen symbols of spiritual, political or philosophical perception within the office. The hallmark of that case-law has been the Court docket’s willingness to confer vital latitude for Member States as to how they regulate the manifestation of spiritual beliefs within the office (eg Vickers). In distinction, every of the three circumstances regarding non secular ethos employers have been characterised by the Court docket’s constriction of nationwide discretion.
The selection of the Court docket to control tightly the circumstances underneath which non secular ethos employers can train their proper to spiritual autonomy is questionable. First, it negates the importance of Article 17(1) TFEU. This states that ‘the Union respects and doesn’t prejudice the standing underneath nationwide legislation of church buildings and non secular associations or communities within the Member States’. Though, that is a part of the Union’s major legislation, it has not considerably influenced how the ECJ interprets Article 4(2) of Directive 2000/78. Second, Van den Brink has identified that the case-law on non secular ethos employers locations little emphasis on the categorical phrases within the first paragraph of Article 4(2) to the impact that it must be carried out ‘taking account of Member States’ constitutional provisions and ideas’. Every of the three circumstances have involved Germany’s constitutional framework for respecting the proper to self-determination of spiritual associations. Article 4(2) signifies that the legislature meant that one issue to be thought of in placing a steadiness between the competing rights is respecting nationwide constitutional preparations.
The salience of this facet of the case is underscored by the current judgment of the German Federal Constitutional Court docket (FCC) in Egenberger. Following the 2018 ECJ choice in Egenberger, the applicant was profitable earlier than the German Federal Labour Court docket. In 2025, nevertheless, the FCC put aside that call. It accepted that, due to the primacy of EU legislation, the interpretation of Article 4(2) given by the ECJ in Egenberger needed to be utilized in German legislation. But it additionally drew consideration to the latitude that remained for nationwide courts within the balancing of elementary rights claims, and the scope for German legislation to proceed to connect weight to the proper of church buildings to self-determination (FCC, para. 225). This implies an method that’s not instantly in battle with the ECJ, however which stays distinct (see, inter alia, Mahlmann and Vickers). It’s affordable to imagine that the ECJ would have been conscious of the FCC choice in Egenberger. However, the place adopted in Katholische Schwangerschaftsberatung signifies that ECJ is just not minded to offer extra leeway for nationwide courts to search out their very own steadiness between non secular autonomy and non-discrimination. As this case will now return to the German courts, it is a authorized saga which will but have an extended solution to journey.
Mark Bell is Regius Professor of Legal guidelines at Trinity Faculty Dublin, The College of Dublin, and Head of Self-discipline within the Faculty of Regulation.
