In this case the Federal Labour Court in Germany asked the European Court of Justice (ECJ) for a preliminary ruling on whether a Catholic doctor’s dismissal from a managerial position in a Catholic hospital, for remarrying after divorce, constituted unlawful discrimination on grounds of religion. The hospital argued his remarriage amounted to a breach of his duty to act in good faith and a failure to show loyalty to the hospital’s religious ethos, namely, that marriage is sacred and indissoluble.

JQ was a Catholic doctor and Head of Internal Medicine at a hospital in Germany. The hospital was managed by IR, a limited company under the supervision of the Archbishop of Cologne. The company dismissed JQ when it learned of his remarriage following divorce claiming he had infringed his duty of loyalty under his contract of employment.

JQ’s contract of employment referenced the Basic Regulations on employment relationships in the service of the Church (GrO 1993). Under Article 4 of the GrO 1993, headed ‘Duty of Loyalty’, Catholic employees are expected to recognise and observe the principles of Catholic doctrinal and moral teaching. The regulations state that entering into a marriage that is invalid according to the Church’s teachings and its legal system shall be regarded as serious and may justify dismissal.

JQ contended that his dismissal was a breach of the principle of equal treatment as, under GrO 1993, the remarriage of a manager of Protestant faith or of no faith would not have had the same or any consequences in terms of the employment relationship.

The ECJ held that although Article 4(2) of the EU Equal Treatment Framework Directive (No.2000/78) grants organisations with a religious ethos an exemption from prohibition of discrimination in cases of ‘genuine, legitimate and justified occupational requirements’, the Court held that a requirement for a Catholic doctor in a managerial position to respect the sanctity of marriage did not appear to fall into that bracket. It did not appear to be genuine requirement of that occupational activity.

“Adherence to that notion of marriage does not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ … Therefore, it does not appear to be a genuine requirement of that occupational activity within the meaning of the Directive.”

The ECJ maintained it would be for the national court to decide in a manner consistent with the Directive. If this was not possible, EU law should take precedence over national law, and the national court must uphold the prohibition of all discrimination on grounds of religion or belief.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=205521&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=457409