Case C‑193/17

Cresco Investigation GmbH

Markus Achatzi

(Request for a preliminary ruling from the Oberster Gerichtshof)

Judgment of the Court (Grand Chamber), 22 January 2019

(Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Article 21 — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(2)(a) — Direct discrimination on grounds of religion — National legislation granting certain employees a day’s holiday on Good Friday — Justification — Article 2(5) — Article 7(1) — Obligations of private employers and national courts resulting from the incompatibility of national law with Directive 2000/78)

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition on discrimination based on religion or belief — National legislation granting a public holiday on Good Friday only to employees who are members of certain churches — Direct discrimination on grounds of religion — Justification — Action not necessary for the protection of freedom of religion — Action intended to offset disadvantages due to religion — Lack of proportionality

(Council Directive 2000/78, Arts 2(2) and (5) and 7(1))

(see paragraphs 38-69, operative part 1)
Acts of the institutions — Directives — Implementation by Member States — Need to ensure that directives are effective — Obligations of national courts — Limits — Dispute between individuals — Obligation to disapply national legislation that is contrary to a directive — Absence — Obligation of conforming interpretation — Scope

(Art. 288, third para., TFEU; Council Directive 2000/78)

(see paragraphs 71-74)
Fundamental rights — Charter of Fundamental Rights of the European Union — Equal treatment — Prohibition on discrimination based on religion or belief — General principle enshrined in Article 21 of the Charter — Principle that is the source of the provisions of Directive 2000/78 in the field of employment and occupation — Possibility of relying on that principle against an individual — Obligations of the national court — Obligation to set aside any contrary national provision

(Charter of Fundamental Rights of the European Union, Art. 21; Council Directive 2000/78)

(see paragraphs 76-89, operative part 2)

Résumé

The grant under Austrian law of a paid public holiday on Good Friday only to employees who are members of certain churches constitutes discrimination on grounds of religion prohibited under EU law

In the judgment in Case C‑193/17, Cresco Investigation, delivered on 22 January 2019, the Grand Chamber of the Court held that the Austrian legislation granting a paid public holiday on Good Friday and, in the case of work carried out on that day, ‘public holiday pay’ only to employees belonging to certain Christian churches is incompatible with Article 21 of the Charter of Fundamental Rights of the European Union, which may be relied on in disputes between individuals, and with Directive 2000/78. ( 1 )

In the case in the main proceedings an action was brought against a private detective agency by one of its employees who had worked on a Good Friday but did not receive ‘public holiday pay’, which, under national law, was to be paid only to members of certain churches. The employee claimed that he was a victim of discrimination on grounds of religion and sought, on that basis, payment by his employer of that pay. The referring court, which is hearing the case, decided to ask the Court about the compatibility of the Austrian legislation with Article 21 of the Charter and with Directive 2000/78.

In the first place, the Court found that that legislation amounts to direct discrimination on grounds of religion within the meaning of Article 2(2)(a) of Directive 2000/78. The difference in treatment established by the national legislation is directly based on the employees’ religion. Furthermore, it concerns categories of employees in comparable situations. Both the grant of a paid public holiday on Good Friday and the grant of public holiday pay to employees who are members of one of the churches referred to are dependent only on whether that employee is formally a member of that church. Thus, first, such employees are free to choose, as they wish, how to spend their time on that public holiday and may, for example, use it for rest or leisure purposes, whereas other employees who wish to have a rest or leisure period on Good Friday are not, however, entitled to a corresponding public holiday. Second, the employees who are members of the churches concerned are entitled to public holiday pay even if they would have worked on Good Friday without feeling any obligation or need to celebrate that religious festival. In that respect, their situation is no different from that of other employees who worked on Good Friday without receiving such a benefit.

In the second place, the Court, while noting that the objective of the Austrian legislation at issue, namely to take account of the particular importance of Good Friday for the members of the churches concerned, falls within the scope of protection of freedom of religion, found that the direct discrimination which it establishes cannot be justified on the basis of Article 2(5) of Directive 2000/78 or Article 7(1) of that directive. Provision is made in Austrian law, for employees not belonging to the Christian churches covered by the legislation at issue, to celebrate a religious festival that does not coincide with a public holiday not by the grant of an additional public holiday, but by the imposition of a duty of care on employers vis-à-vis their employees, which allows the latter to obtain, if they so wish, the right to be absent from their work for the amount of time necessary to perform certain religious rites. It follows that the legislation at issue is not necessary for the protection of the freedom of religion within the meaning of Article 2(5) of that directive. For that very reason, that legislation also cannot be regarded as including specific measures the aim of which is to compensate, in accordance with the principle of proportionality and, as far as possible, the principle of equal treatment, for a disadvantage in the working life of the employees concerned, as referred to in Article 7(1) of Directive 2000/78.

As regards the implementation, in the case in the main proceedings, of the prohibition of discrimination on grounds of religion under EU law, the Court confirmed that Directive 2000/78 cannot be relied on in a dispute between individuals in order to set aside the legislation of a Member State where, as in the present case, it is not capable of being interpreted in conformity with that directive. However, Directive 2000/78 does not itself establish the principle of equal treatment in the field of employment and occupation, which originates in various international instruments and the constitutional traditions common to the Member States. Furthermore, the prohibition of any discrimination on grounds of religion or belief is mandatory as a general principle of EU law and is laid down in Article 21(1) of the Charter.

Therefore, that prohibition is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute between them and another individual in a field covered by EU law. The referring court is thus obliged to guarantee the legal protection afforded under that article in order to ensure the full effect thereof. It must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature.

Thus, the Court concluded that until measures reinstating equal treatment have been adopted by the Austrian legislature, employers must, in accordance with Article 21 of the Charter, ensure that employees who are not members of one of the churches covered by the national provisions at issue enjoy the same treatment as that enjoyed only by employees who are members of one of those churches under those provisions.

( 1 ) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).