Non-discrimination on the Ground of Religion: A Fundamental Element of the EU Constitutional Legal Order?

The general obligation of non-discrimination enjoys a special place within the sources of law of the EU constitutional legal order, up to the point that the Court of Justice has ensured its enforcement also beyond the scope of application of ordinary EU legal instruments. The Court of Justice has, in fact, granted the application of the obligation not to discriminate against the protected categories (as transposed in the Charter of Fundamental Rights – with the caveat of its limits – as well as in the Treaties) also in cases in which the applicable legal instrument – be that the Treaty or any other piece of EU primary legislation – was not applicable. This happened with particular reference when the Court of Justice decided to apply the obligation of non-discrimination in cases involving two private parties, applying what is usually defined as the horizontal direct effect of EU legal instruments. This is not only confirmed by the case law of the Court of Justice on non-discrimination between women and men (the Defrenne case law), on the ground of nationality (inter alia Zambrano), on the ground of age (Mangold, Kücükdeveci and ultimately Ajos-Dansk Industri) but, eventually , from the case law of the Court of Justice on religious discrimination. This happened in a recent decision of the Court of Justice of the European Union, Egenberger (C‑414/16), where a job applicant – Mrs Vera Egenberger – for a position offered by an auxiliary of the Protestant Church, in Germany, appealed the decision of the employer not to hire her – ironically enough – on a legal consultancy project on the application of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. In front of the EU Court of Justice, Mrs Egenberger invoked Directive 2000/78/EC and the Church invoked its right to religious autonomy, embedded in the exception contained in Art. 4(2) of Directive 2000/78/EC, that allows religious organizations, albeit in certain circumstances, to be exempted from the application of the directive. In cases like the one at hand, if the content of the Directive has not been transposed in national legislation, in principle, the EU institutions cannot take action or require the application of EU law to an individual (in this case the Church – employer or the individual – employee) who would be, otherwise, paying the price for the negligence of their national administrations. Since however failing to apply the Directive would have entailed a limitation of the obligation of non-discrimination, the Court ruled that the matter was falling under the scope of application of Directive 2000/78/EC but was not complying with the proportionality requirement to be considered as an exception to its application pursuant to its Art. 4(2). How this has been done, and in particular the use made of the principle of non-discrimination on the ground of religion, is a matter that will be further explained in the paper and in the intervention. For now it is sufficient to pose ourselves a fundamental question: the behavior of the Court, and the enforcement – whatever it takes – of the principle of non-discrimination on the ground of religion, is a restatement of the importance of non-discrimination in the national legal orders, or it is rather the affirmation of the specific and fundamental place that non-discrimination on the ground of religion occupies in the EU constitutional legal order? How this can be reconciled with religious freedom? The paper will try to address these questions.