Religion is not a criterion: The European court of justice calls for the equal treatment of Catholic and non-confessional employees in Church institutions, and calls for reforms in the Church work right.
Is allowed to treat a Catholic hospital of its Catholic employees differently than other religious believers or non-believers? In many countries of Europe, this question would seem odd. But in Germany, where the churches are, according to the state’s largest employers, this question is of vital importance.
The question is so important that the European court of justice (ECJ) in Luxembourg dealt with it. The European judges said “no” to the different treatment. The had left in opposition to a judgment of the Federal constitutional court, in 2014, relying on the basic law written to self-determination right of the churches (article 4, paragraph 2), the Catholic hospital of the decision.
Where does the “third way”?
In the judgment of the ECJ, it was a Catholic chief physician in a Catholic hospital in Düsseldorf, which had been terminated in 2009, after he had married for the second Time. The doctor had separated four years earlier of his first wife and then lived with his new partner.
The Archdiocese of Cologne as an employer saw in the behavior of the head doctor of a breach of the Catholic faith and morals, because according to Catholic law, a marriage is indissoluble. The European judges argued that Catholic employees should not be disadvantaged in relation to other faiths, or confessional, because this was a violation of the prohibition against discrimination.
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Employer Church
The ECJ ruling could trigger a legal Revolution in Germany and in the approximately 500 hospitals in a Catholic institution in Germany to the everyday change. More than that, It could lead to a Reform of the existing ecclesiastical labor law, the applies so far, for around 1.5 million Employees of the Catholic and Protestant churches and their welfare organisations in Germany.
Until now, the so-called “third way applies in Germany”. Afterwards, the ecclesiastical institutions and the employees are subject to not only state labor law but also Church law. The recognition of the “Church loyalty obligations”, as well as restrictions on the right to strike or the right of co-determination. The design is governed by the Evangelical and Catholic Church are different is strictly.
The New to the judge’s decision from Luxembourg, the emphasis on the principle of Equality. Because of the Catholic hospital in Düsseldorf, Germany, two other chief physicians, who were also married for the second Time and those terminated had been worked to the date of termination in 2009. Crucial difference: they were not Catholic. This fact is contrary to the view of the ECJ, article 4, paragraph 1 of the European Directive 2000/78.
Pressure for reform from Luxembourg
The Catholic Church law George beer, of the University of Freiburg dared already in 2013, a forecast. “The rights of the religious communities in Germany are more pronounced than in other European countries,” – quoted by the author Eva Müller in her book, “God has high incidental costs”: “It is not unlikely that the reform impetus from the European side can take.”
Cologne’s Archbishop Rainer Maria Woelki has defended the dismissal of the düsseldorf chief physician
Already in 2015, the Catholic bishops had adopted due to the frequent court disputes, a Reform of the “basic order of the Church service in Church employment.” After that, the “labor law penalties for certain behavior should be in the private sector” to “the really serious cases” be restricted.
According to upset the German bishops ‘ conference, responded to the ECJ judgment. “The termination of the facts of the case would be judged according to today’s applicable Church law,” – said in an official statement. Because the Church of the statutory termination scheme, 1993, on which the court is based, had been changed after the Reform in 2015, “fundamentally”.
Protection against discrimination
Quite different is the Federal anti-discrimination Agency is expressed. She looks through the judgment, the discrimination, the protection of employees in the case of churches strengthened. “A loyal behavior in the sense of the Church’s self-understanding must not be a flat rate required for all the activities,” said the acting head of Bernhard Franke.
In the case of the Evangelical Church in Germany (EKD) you feel are not addressed. The judgment of divorce and the second marriage is concerned solely with the Catholic Church, said in a statement. The judges have underlined that the state labour courts may grant the Church workers legal protection against arbitrariness. And that is a good thing.
What is the Luxembourg judgment for the Church’s work means legal in Germany, must now decide in the last instance, the Federal labour court. Because of this, had asked for the judgment of the Federal constitutional court 2014 the ECJ to be a fundamental clarification. The judges have already announced that they will be based on European law.