SECTION 2. Religious organizations’ autonomy in the workplace: the CJEU
3. The case-law of the CJEU on the autonomy recognized to religious organizations
3.3. The Cresco Investigation case
Paragraph 7 of the Austrian law on rest periods (Arbeitsruhegeset, hereinafter the “ARG”) provides the list of the public holidays that all Austrian employees are entitled to. In particular, the case involved a challenge to paragraph 7(3) of the labor legislation, which classifies Good Friday as an additional festive day for the members of four small Christian minority Churches, i.e. the Evangelical Churches of the Ausburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church. Accordingly, members of these minority churches are entitled to a 24-hour rest period or to additional
provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity».
568 Judgment IR, above, para. 48.
569 Ibid., para. 56.
570 Ibid., paras. 57-58.
571 Ibid., para. 58.
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holiday pay if they worked on that day, whereas other employees do not have any such entitlement.
The case concerned Mr Markus Achatzi, an employee of the private detective agency Cresco who was not a member of any of the Churches covered by paragraph 7(3) ARG.
When his employer refused to pay the holiday allowance for the work he carried out on Good Friday 2015, he went to Court complaining a violation of Art. 21 Charter and Directive 2000/78. On the matter, the national court noted that paragraph 7(3) ARG explicitly aims to allow believers of one of the protected Churches to practice their faith on a religious holiday that is particularly significant for them without taking a day’s leave for that purpose. The national judges also pointed out that workers who are members of the Roman Catholic Church – i.e. the majority of the Austrian population – already benefit from this possibility, because the Catholic public holiday listed in Para. 7(2) ARG are days off for all employees. Lastly, the Austrian Court observed that the ARG does not take into consideration the religious needs of some employees. Even though some collective agreements provide for the protection of certain Jewish and Protestant festive days, «in the absence of any such provision» the concession of these holidays is nevertheless «largely dependent on the goodwill of the employer».572 While recognizing that the special regime of paragraph 7(3) ARG «constitutes, in principle, less favourable treatment on grounds of religion» for the workers who do not belong any of the four minority churches,573 the national judges thus wondered whether such workers are in a situation comparable to that of employees with different beliefs or no faith, pursuant to the definition of direct discrimination laid down by Art. 2(2)(a) Directive 2000/78.574 In this regard, the national court also wondered whether the difference of treatment at issue could be considered either as a necessary measure in a democratic society to protect the rights and freedoms of others, under Art. 2(5) Directive 2000/78,575 or as a positive action specifically aimed at compensating for existing disadvantages within the meaning of Art.
572 Judgment Cresco Investigation, above, para. 20.
573 Ibid., para. 17.
574 «[D]irect discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1».
575 «This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others».
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7(1) Directive 2000/78.576 The national judges thus decided to stay the proceedings and to refer to the CJEU for a preliminary ruling.
Before getting to the heart of the ruling, it is necessary to focus briefly on the argument raised by the Polish government, as it provided the CJEU with the chance to specify the scope of its judicial review. In relation to the case at issue, the Polish government opposed to such preliminary referral, claiming that the CJEU, under Art. 17(1) TFEU, lacked jurisdiction on the issue of the concession by a Member State of a public holiday for the celebration of a religious festival. In this respect, the European judges pointed out that
«the fact that Declaration No. 11 is expressly mentioned in recital 24 of Directive 2000/78 shows that the EU legislature must have taken that declaration into account when adopting the directive».577In addition, even recognizing that art. 17(1) TFEU expresses EU neutrality towards the way Member States organize their relations with churches and religious associations and communities, the Court argued that the Austrian provisions at issue do not concern the organization of such relations, but only the grant of an additional public holiday to those employees who are members of certain religious communities.578 Consequently, the CJEU rejected the Polish claim alleging lack of jurisdiction and proceeded to answer the preliminary questions referred by the Austrian judges.
In the first place, the CJEU noted that, in order to answer the first preliminary question and to assess whether the national disposition which grants Good Friday as a public holiday only to those workers who are member of the churches listed in the ARG constituted direct discrimination, it was necessary to determine both whether the ARG gave rise to a difference in treatment between workers on the basis of their faith and, if that had been the case, whether such a difference related to categories of employees who were in a comparable situation. On the first issue, the Court stated that Austrian law did establish a difference of treatment because «the test used by legislation in order to differentiate is based directly on whether an employee belongs to a particular religion».579
576 «With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1».
577 Judgment Cresco Investigation, above, para. 32.
578 Ibid., para. 33.
579 Ibid., para. 40.
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On the second, it found that paragraph 7(3) ARG «had the effect of treating comparable situations differently» and therefore constituted direct discrimination on grounds of religion within the meaning of Art. 2(2)(a) Directive 2000/78.580
On the matter, it is interesting to note that the Court's reasoning diverged considerably from that of Advocate General Bobek, who defined comparability «the most complex question in this case».581While both the CJEU and the AG reached the same conclusion of the situations being comparable, the former merely pointed out that the granting of additional public holiday was not subject to any condition that the worker must carry out a religion duty on that day, meaning that members of the minority churches listed in the ARG were no different from other employees who wanted to have a leisure day on Good Friday.582 Conversely, the AG indicated the granting of the additional pay as the decisive factor on deciding the proper point of reference to use in the case. Given that the aim of the ARG is to allow the members of the four minority churches to participate in the religious festival of Good Friday, thus respecting their freedom of religion, Mr Bobek argued that «the right to double pay […] constitutes an economic incentive not to use that day for worship» and therefore hinders the purse of that aim.583 The Advocate General thus rejected the Commission's position – i.e. that the comparison had to be conducted with reference to employees for whom there was a particularly special religious festival not recognized as a public holiday under Austrian law – and indicated that the applicant was in a similar situation to the members of the churches covered by the ARG because, due to the additional pay, they were all likely to work on Good Friday.
The CJEU then excluded that such direct discrimination could be justified under Art. 2(5) of Directive 2000/78. In particular, the Court noted not only that this article allows difference of treatment just if strictly necessary to the functioning of a society,584 but also that, the disposition being an exception to the general principle of equal treatment, it must
580 Ibid., para. 51.
581 Opinion of Advocate General M. Bobek delivered on 25 July 2018, Case C-193/17, Cresco Investigation, para. 35.
582 Judgment Cresco Investigation, above, para. 50.
583 Opinion of AG Bobek, Cresco Investigation, above, para. 69.
584 Judgment Cresco Investigation, above, para. 54. In this regard, see also Judgment Prigge, above, para 55.
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be interpreted narrowly.585 From this perspective, the argument that the Austrian law could be seen as necessary to protect the rights and freedoms of others was rejected on the basis that employees not belonging to the churches covered by the ARG who want to celebrate their own religious festivals are not entitled to a 24-hour rest period. Indeed, their «right to be absent from […] work for the amount necessary to perform certain religious rites»
mainly depends on «a duty of care on employers vis-à-vis their employees» as opposed to workers of the privileged religions.586
Similarly, the CJEU held that a directly discriminatory norm could not be justified under Art. 7(1) Directive 2000/78. The Court observed that this disposition allows only for those measures that, respecting the principle of proportionality, are taken to compensate for actual inequality.587 Yet, the European judges held that Austrian law was disproportionate as it went beyond the necessary to allow workers of the minority religions covered by the ARG to carry out any religious obligation on Good Friday, as «the provisions at issue […]
grant a 24-hour rest period […] to employees who are members of one of the [protected]
churches, while employees belonging to other religions […] can, in principle, be absent from work in order to perform their religious duties […] only if they are so authorized by their employer in accordance with the duty of care».588
4. Reflections on the CJEU jurisprudence on religious organizations’ autonomy in the