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Published online by Cambridge University Press: 26 April 2011
The Equal Treatment Directive ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the member states and … of philosophical and non-confessional organisations’ and empowers member states to make ‘specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity’. Specifically, Article 4 permits member states to make such provision taking account of their ‘constitutional provisions and principles, as well as the general principles of Community law’. Crucially, Article 4 concludes as follows:
… this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos.
1 78/2000/EC Council Directive of the European Union of 27 November 2000 establishing a general framework for equal treatment in employment and occupation: preamble para 24.
2 [2010] ECtHR (Application No 425/03) (23 September 2010).
3 [2010] ECtHR (Application No 1620/03) (23 September 2010).
4 Which re-enacted arts 137–141 of the Weimar Constitution 1919: the so-called Kirchenartikel.
5 See Decisions of the Federal Constitutional Court: Loyalitätspflicht [Duty of Loyalty] (1985) 70 BVerfGE 138, available at <http://www.servat.unibe.ch/dfr/bv070138.html#Rn043>, accessed 29 November 2010.
6 Hasan and Chaush v Bulgaria [2000] ECtHR (GC) (No 30985/96) followed.
7 See Leyla Şahin v Turkey [2005] ECtHR (GC) (No 44774/98).
8 ‘Basic rules for the service of the Church under the Church's conditions of employment’ (Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse) adopted by the Bishops’ Conference in 1993.
9 See Public Bill Committee on the Equality Bill, Tuesday 9 June 2009, available at <http://www.publications.parliament.uk/pa/cm200809/cmpublic/equality/090609/am/90609s01.htm>, accessed 28 September 2010.
10 Ibid, Q 127.
11 Ibid, Q 126.
12 Ibid, Q 127.