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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Togo: Parliament Adopts Bill to Promote Power Generation from Clean Sources

(Oct. 15, 2018) On July 24, 2018, Togo’s Parliament adopted a bill to promote power generation from clean sources. (Ouverture de la deuxième session extraordinaire de l’année 2018 [2018’s Second Extraordinary Assembly], Assemblée Nationale Togolais [Togolese National Assembly] website (all translations by author).)

The bill was approved unanimously and includes 59 articles organized in seven titles aimed at “establishing a legal framework to promote the realization and operation of electrical installations for the production of renewable energy.” (Id.)

The adoption of this bill is in line with Togo’s plan to provide access to reliable, modern energy for all its citizens. Indeed, at the end of June 2018, Togo’s government launched a new national electrification strategy for the next 12 years, backed by major lenders, under which authorities plan to provide power to all Togolese by 2030. (Fiacre E. Kakpo, Marc Ably-Bidamon: “Togo’s Ambition Is to Provide Electricity to Its Whole Population by 2030,” TOGO FIRST (Aug. 8, 2018).)

Under Togo’s plan, 300 minisolar plants are to be established via private-public partnerships, and 550,000 households are to be provided with solar kits. (Énergie: le Togo a besoin de 180 milliards [Energy: Togo Needs 180 Billion Dollars], REPUBLIQUE TOGOLAISE (June 27, 2018).) The new bill, Togolese authorities believe, will greatly contribute to the concretization of these goals. (Fiacre E. Kakpo, Parliament Adopts Bill to Boost Clean Energy Production, TOGO FIRST (July 26, 2018).)

André Johnson, Togo’s Minister of Environment and Forest Resources, stated after the bill’s adoption that [t]oday’s vote will support the implementation of our energy strategy which is based, among others, on clean energy development, namely solar and hydropower, as well as on environmental protection, in line with the sustainable development goal 7 (SDG7). (Id.) The Sustainable Development Goals (SDGs) are a set of goals created by the United Nations for sustainable development and have been publicized as international goals. (G.A. Res. A/Res/70/1, Transforming Our World: the 2030 Agenda for Sustainable Development (Sept. 25, 2015), U.N. General Assembly website.) SDG7 aims at “ensuring access to affordable, reliable, sustainable and modern energy for all.” (Id. at 14.)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

 

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Kenya: Parliament Considering Amendment to the Country’s 2001 Children Act

(Oct. 5, 2018) Kenya’s Parliament is currently reviewing a new bill—the Statute Law (Miscellaneous Amendments) Bill, 2018—which seeks to introduce key amendments to the 2001 Children Act. The Bill has recently gone through its first reading in the National Assembly, one of the two houses of the Kenyan Parliament. (Statute Law (Miscellaneous Amendments) Bill, 2018, KENYA GAZETTE SUPPLEMENT, NATIONAL ASSEMBLY BILLS, 2018 (Apr. 10, 2018), Kenya Law website; Children Act No. 8 of 2001 (commencement Mar. 1, 2002), Kenya Law website.)

One of the proposed changes under the Bill authorizes the Cabinet Secretary in charge of implementing the Children Act to deregister existing charitable children’s institutions or refuse to register new ones that fail to adhere to certain standards. (Statute Law (Miscellaneous Amendments) Bill, at 298–300.) Under the current Children Act, a charitable children’s institution is “a home or institution which has been established by a person, corporate or unincorporate, a religious organisation or a non-governmental organisation and has been granted approval by the [National Council for Children Services] to manage a programme for the care, protection, rehabilitation or control of children.” (Children Act §§ 2 & 58.)  Under this Act, it appears that the harshest restriction that can be placed on a charitable children institution is the cancellation of its program by the Council upon the recommendation of the Director of Children Services. (Children Act § 71.)  This may occur if

(a)  the institution is unfit for the care, protection and control of children; or

(b) the children admitted into the institution are suffering or are likely to suffer harm; or

(c) the manager of the institution has contravened any of the regulations made under [the law]. (Id.)

If the Bill is enacted, the Cabinet secretary will have the power to shut down an existing charitable children’s institution or deny registration to a new one if

(a) the lives of children in such institution are in danger or where their continued stay therein is likely to endanger their well being;

(b) the institution or a person involved in the management of such institution in unfit to provide care or protection to the children;

(c) it has been established that the institution does not serve the best interest of the
children therein; or

(d) such institution is in contravention of the Constitution, the Convention on Rights of the Child, the African Charter on the Rights and Welfare of the Child or any other law or international treaties or conventions to which Kenya is a party. (Statute Law (Miscellaneous Amendments) Bill, at 298–300.)

The Bill would also place similar restrictions on adoption institutions. It authorizes the Secretary to “decline to register or cancel the registration” of an adoption society, an institution that facilitates adoptions, under certain circumstances. This would occur if it is established that

(a) the operations of such adoption society are against the best interests of the child;

(b) such adoption society is no longer necessary; or

(c) the operations of such adoption society are in contravention of the Constitution or any other law or any international treaty or convention to which Kenya is a party. (Statute Law (Miscellaneous Amendments) Bill, at 302.)

In addition, the Bill would give the Child Welfare Society of Kenya, a state corporation, a great deal of power over the process of arranging adoptions. It states that “[n]o body of persons shall make any arrangements for the adoption of a child … unless such body is the national adoption society [the Child Welfare Society of Kenya] or any other body registered as an adoption society.” (Id. at 301; State Corporations Act (Child Welfare Society of Kenya) Order, 2014, § 4 (May 21, 2014), Kenya Law website.)

Significantly, the Bill seeks to eliminate payments to an adoption society or anyone else involved in facilitating an adoption. The current Act prohibits adopters, parents, or guardians of a child from receiving any payment in consideration of adopting the child. (Children Act § 179.) However, it permits adoption societies and advocates to receive payment or voluntary donations, stating that the above ban does not apply

(b) to any payment made by or on behalf of an adoption society in respect of the maintenance of a child who has been placed at the disposition of the society; or

(c) to any payment made to an adoption society by the parent or guardian of a child or by any other person in respect of the maintenance of the child, so long as the child is not in care and possession of a person who has adopted or proposes to adopt him, whether under an adoption order or some other order; or

(d) to any payment made to an advocate who acts for any party in or in connection with an application for an adoption order, being payments made in respect of such application; or

(e) to any voluntary contribution made by any adopter or any parent or guardian to an adoption society. (Id.)

The Bill would repeal all these exceptions that permit the making of payments and/or donations.

Children’s rights groups have expressed opposition to the Bill, arguing, among other things, that the central role in matters affecting children that it envisages for the Child Welfare Society of Kenya would essentially “make other institutions irrelevant and could kill them.” (Rhoda Odhiambo, Child Welfare Groups Oppose Law Changes, STAR (May 10, 2018).)

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Egypt: President Ratifies Anti-Cybercrime Law

(Oct. 5, 2018) In August 2018, Egyptian President Abdel Fattah al-Sisi ratified Law No. 175 of 2018, the “Anti-Cyber and Information Technology Crimes” law. (Law No. 175 of 2018, AL-JARIDAH AL- RASMIYAH [OFFICIAL GAZETTE], vol. 32 (bis) (c), 14 Aug. 2018 (in Arabic).) The newly enacted law, published in the Official Gazette on August 19, 2018, aims at fighting extremist and terrorist organizations that use the internet to promote their ideas among youth. The Law also bans the online dissemination of information on army and police movement and criminalizes hacking into information systems. (Mariana Barsoum, Egypt’s Sisi Ratifies New Cyber-crime Law, AHRAM ONLINE (Aug. 18, 2018).)

Law No. 175 consists of 45 provisions. Among them, article 2 requires telecommunications companies to retain and store users’ data for 180 days in order to assist the authorities in identifying users, metadata, and computer IP addresses. Article 4 of the Law obliges the Ministries of Foreign Affairs and International Cooperation to reach bilateral agreements covering Internet Technology (IT) and cybercrime with as many foreign governments as possible to block some websites in foreign countries. Article 7 grants the investigative authorities the power to block any website whenever they deem that the website’s content promotes extremist ideas that violate national security or damages the Egyptian economy. (Wafa Ben-Hassine, Egyptian Parliament Approves Cybercrime Law Legalizing Blocking of Websites and Full Surveillance of Egyptians, ACCESS NOW (June 20, 2018).)

Article 8 gives customers and internet service providers (ISPs) the right to appeal censorship decisions before the criminal court within seven days of the censoring of a website. (Law No. 175, art. 8.)

Article 13 provides that using wireless networks with or without the owner’s permission, or using broadcasting channels without a communications permit or broadcasting license is punishable by imprisonment for no less than three months and a fine of 10,000–50,000 Egyptian pounds (EGP) (about US$557–2,786). (How You Will be Affected by the New Cybercrime Law: A Guide, MADA MASR (Aug. 21, 2018).)

According to article 14, individuals who gain access to or hack a website, private account, or prohibited information system, whether intentionally or unintentionally, may be penalized with imprisonment of no less than a year and/or a fine of EGP50,000–100,000 (about US$2,786–5,573). If the hacking leads to the damage, erasure, altering, copying, or redistribution of data or information, the term of imprisonment would be for no less than two years. (Law No. 175, art. 14.)

Article 15 states that anyone who obtains access to a website, an account, or an information system using inappropriate privileges or timing is punishable by no less than six months of imprisonment and/or a fine of EGP30,000–50,000 (about US$1,672–2,786). (Id. art. 15.)

Under article 20, individuals convicted of hacking state information systems can be fined EGP50,000–200,000 (about US$2,786–11,145) and/or sentenced to imprisonment for two years. (Barsoum, supra.)

Creating fake accounts using the names of public figures or organizations is also punishable under the new law. Article 24 stipulates that anyone who creates a fake email address, website, or personal account in the name of actual individuals or organizations is punishable by a term of imprisonment of no less than three months and/or a fine of EGP10,000–30,000. Moreover, creating an account to insult a public figure may be punished by imprisonment and a fine of EGP100,000–300,000 (about US$5,573–16,718). (How You Will Be Affected by the New Cybercrime Law: A Guide, supra.)

In accordance with article 25, individuals who post on websites or social media platforms videos, photos, or texts of others without their consent and in violation of their privacy are punishable by no less than six months in prison and/or a fine of EGP50,000–100,000. Posting content that “violates the family principles and values upheld by Egyptian society” may be punished by a minimum of six-months’ imprisonment and/or a fine of EGP50,000–100,000. (Id.)

Finally, a service provider who fails to carry out a censorship order or directive issued by the competent authority against a specific website or online blog account is punishable under article 30 by no less than a year in prison and/or a fine of EGP500,000–1 million (around US$27,864–55,727). (Law No. 157, art. 30.)

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Sweden: Swedish Media Criticized by Swedish Press Council for Publishing Names of #MeToo Accused Without Cause

(Oct. 4, 2018) On June 25, 2018, the Swedish Pressens opinionsnämnd (PON, Press Council) in an unprecedented move issued critical opinions of the media regarding 10 of the 11 cases brought forward during 2018 in connection with the #MeToo movement. The Press Council condemned the media for publishing without sufficient cause the names of persons accused of sexual misconduct. (Senaste fällningar, PON (June 25, 2018).)

Press Freedoms and Ethics in Sweden

Under Swedish law publishers are protected by two of the four laws that make up the Swedish Constitution—the Freedom of the Press Act (TRYCKFRIHETSFÖRORDNINGEN (TF)) and the Fundamental Law on Freedom of Expression (YTTRANDEFRIHETSGRUNDLAGEN (YGL)), both on the Swedish Parliament website). However publishers’ freedom is not unlimited, and violations of press freedom may be punished. (1 kap. 3 § TF.)

In Sweden, media houses voluntarily subscribe to the Ethical Guidelines on Publishing. (Publicitetsregler, JOURNALISTFÖRBUNDET (May 21, 2018).) These rules include provisions highlighting the importance of respecting the private life of persons that the media houses write about. (Id. paras. 7–10.)

PON is responsible for determining what constitutes “the use of good publishing practice.” (PON, 1 § Stadgar för Pressens Opinionsnämnd, PON website (all translations by author).) PON is made up of two members each from the Publicistklubben (Publisher’s Club), Svenska Journalistförbundet (Swedish Journalist Association), Svenska Tidningsutgivareföreningen (Swedish Newspaper Publishers’ Association), and Sveriges Tidskrifter (Sweden’s Magazines). (Id. § 6.)

Publishers that are criticized by PON for violating the press ethical rules are obliged to publish the PON opinion in the same form (i.e., digital, print, or video) as the original criticized piece was published, and must also pay fines to PON, the amount of which depends on the size of the publication’s distribution. (Id. §§ 11 & 13.)

In addition to rules mentioned above, state media have additional requirements for how a broadcast may be conducted.

Section 15 of the Stadgar provides that “[t]he individual’s right to private life shall be respected in the program activities unless an undeniable public interest demands otherwise.” (Det gäller vid namnpublicering i svenska medier, SVT (Oct. 17, 2017).) Thus, the general rule for state media is to not publish the names of persons suspected or accused of a crime. Instead, state media policy has been to publish the names only when the crime “is particularly serious and when there is a great public interest. Publishing the name can also become relevant if [the crime] concerns a public person, such as a politician, CEO, or other person in a role of responsibility.” (Id.)

PON’s Media Criticism

During the past year with the growth of the #MeToo movement, several Swedish media corporations have published the names of persons who were not formally accused of sexual misconduct crimes in courts of law but who had been publicly accused by alleged victims. For instance, Svenska Dagbladet published an article with the name of a man accused by 12 women of sexual harassment. (PON, Svenska Dagbladet klandras för publicering om NN [namn angivet] (Case: Svenska Dagbladet, exp. nr. 88/2018, dnr. 17409, June 25, 2018).)

In this case PON found that

[w]hen a name is published and the person mentioned is negatively affected, it is of great importance that the publisher act with restraint and responsibly during the publication. A fundamental prerequisite for publishing must be that the publishing is compatible with good publishing practices and that there is evidence to substantiate the information.

Even though the newspaper that published the information had investigated the events and interviewed the participants, PON found that what the newspaper had accumulated in the form of background material did not warrant publishing a name. (Id.)

Another man, Martin Timell, a well-known media personality and TV carpenter who was publicly accused of sexual violence, including rape, but was later cleared of all charges in court also had his name published in the media. (PON, Expressen klandras: Pekade ut Martin Timell som skyldig (Case: Expressen, exp. nr. 89/2018, dnr. 17495, June 25, 2018); Timell efter domen: ‘Är oerhört lättad’, NÖJE (June 8, 2018).) The media outlet Expressen was criticized for writing about Timell as if he was already guilty. (Id.) PON did acknowledge that sexual violence crimes are of great public interest, and that it is imperative that such accusations be brought to light. It also maintained that public figures such as Timell must bear greater scrutiny than a nonpublic person. However, PON found that because Timell had been accused of a rape that had occurred a long time ago, the public interest did not warrant publishing his name. (PON, Expressen klandras: Pekade ut Martin Timell som skyldig (Case: Expressen, exp. nr. 89/2018, dnr. 17495, June 25, 2018.)

#MeToo Accusations May Be Defamation

Under Swedish law, even true accusations may be defamation—the fact that an accusation is true is not in itself a defense against defamation (förtal). (5 ch. 1 § 2 mom. (BROTTSBALKEN [BRB] [CRIMINAL CODE] (SFS 1962:700).)  Swedish courts have sentenced individual women to pay day-fines (fines calculated on the basis of the accused’s daily income) as well as monetary compensation  for accusing men on social media of raping or sexually assaulting them. (See, e.g., Fredrik Samuelson, Kvinna döms för förtal efter #metoo-inlägg, EXPRESSEN (Feb. 20, 2018).)

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European Union: European Court of Justice Rules on Religious Employment Discrimination

(Oct. 3, 2018) On September 11, 2018, the European Court of Justice (ECJ) held that dismissing a Catholic employee in a managerial position at a Catholic hospital for remarrying in a civil ceremony could constitute discrimination. According to the Court, religion or belief must be a genuine, legitimate, and justified occupational requirement in light of the “ethos” in question to justify a dismissal under the Equal Treatment Directive. This requirement must be subject to judicial review. Whether this condition is satisfied is up to the national court to determine. According to the opinion of the ECJ, however, it does not appear to be a genuine and justified requirement in the case at issue. (Case C‑68/17, IR v. JQ, Sept. 11, 2018, ECLI:EU:C:2018:696, InfoCuria website; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation (Equal Treatment Directive), 2000 O.J. (L 303) 16, EUR-Lex website.)

Facts of the Case

The plaintiff JQ, a Roman Catholic, had been employed since 2000 as the Head of the Internal Medicine Department of a hospital managed by the defendant IR, a limited liability company established under German law. (Case C 68/17, at 23 & 24.) IR’s purpose is to carry out the work of Caritas, the international confederation of Catholic charitable organizations. (Id. at 23.) IR is subject to the supervision of the Archbishop of Cologne, Germany. (Id.)

JQ had divorced his first wife, whom he had married in the Roman Catholic Church, and married his second wife in a civil ceremony. The Roman Catholic Church had not annulled his first marriage, making the second marriage invalid according to Roman Catholic doctrine. (Id. at 25.) The defendant IR considered the second marriage an infringement of the duty of loyalty that the plaintiff owed to the defendant under his contract of employment and consequently dismissed him. (Id. at 26 & 28.) The plaintiff JQ contended that his dismissal constituted an infringement of the principle of equal treatment, because the Basic Regulations on Employment Relationships in the Service of the Church, which are incorporated in his employment contract, provide that the remarriage of a head of department of the Protestant faith or of no faith would not result in a dismissal. (Id. at 27.)

JQ challenged his dismissal as socially unjustified before the German Labor Courts. The court of first instance as well as the appeals court ruled in favor of the plaintiff. (Id. at 27 & 29.) The Federal Labor Court (Bundesarbeitsgericht, BAG), the court of last instance for labor law issues, stayed the proceedings and asked the ECJ for an interpretation of article 4, paragraph 2 of the Equal Treatment Directive, which is implemented in section 9 of the German General Law on Equal Treatment. (Id. at 31 & 37.) It asked in particular whether the Catholic Church can decide with binding effect that an organization such as the defendant can subject employees in managerial positions to a requirement to act in good faith and with loyalty when the requirement differs according to the faith or lack of faith of such employees and, if that is not the case, what criteria are to be used. (Id. at 37.)

Legal Framework

Article 4, paragraph 2 of the Equal Treatment Directive provides that

Member States may maintain national legislation … or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, 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.

Section 9 of the German General Law on Equal Treatment, which implements article 4 of the Equal Treatment Directive, states as follows:

  1. Without prejudice to Paragraph 8 [of this law], a difference of treatment on grounds of religion or belief in connection with employment by religious communities, institutions affiliated to them, regardless of their legal form, or associations that devote themselves to the communal nurture of a religion or belief shall also be permitted if a particular religion or belief constitutes a justified occupational requirement, having regard to the self-perception of the religious society or association concerned, in view of its right of self-determination, or the nature of the activities engaged in.
  2. The prohibition of a difference of treatment on grounds of religion or belief shall not affect the right of the religious communities mentioned in subparagraph 1, institutions affiliated to them, regardless of their legal form, or associations that devote themselves to the communal nurture of a religion or belief, to require their employees to act in good faith and with loyalty in accordance with their self-perception.

(Allgemeines Gleichbehandlungsgesetz [AGG] [General Law on Equal Treatment], Aug. 14, 2006, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1897, German Laws Online website.)

Article 140 of the German Basic Law incorporates articles 136–139 and article 141 of the former Weimar Constitution (WRV) on religion and religious societies into the German Basic Law. Article 137 of the WRV provides that there is no state church and that religious societies regulate and administer their affairs independently (right to self-determination). (GRUNDGESETZ [GG] [BASIC LAW] (May 23, 1949), BGBl. I at 1, as amended, German Laws Online website.) According to the German Federal Constitutional Court, the churches’ right to self-determination extends to “all institutions specifically affiliated to them, if and to the extent that they are required, in accordance with the church’s faith-defined self-perception and with their own purpose or mission, to undertake and fulfil the church’s mandate and mission.” (Case C‑68/17, at 12; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 4, 1985, 70 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] [Decisions of the Federal Constitutional Court] 138, para. 56 (Ger.).)

Article 4 of the Basic Regulations on Employment Relationships in the Service of the Church (GrO 1993) provides as follows:

  1. Catholic employees are expected to recognize and observe the principles of Catholic doctrinal and moral teaching. In pastoral, catechetical and educational work in particular, as well as among employees who are working on the basis of a missio canonica [canonical mission], employees shall conduct themselves in a manner consistent with the principles of Catholic doctrinal and moral teaching. This also applies to employees performing managerial duties.
  2. Non-Catholic Christian employees shall be expected to respect the truths and values of the Gospel and to contribute to giving them effect within the organization.

Article 5 of the GrO 1993 states the following:

  1. If an employee no longer complies with the requirements for employment, the employer shall attempt to counsel the employee to remedy this shortcoming on a lasting basis. … Dismissal shall be considered as a last resort.
  2. For dismissal on grounds relating specifically to the Church, the following breaches of the duty of loyalty in particular shall be regarded by the Church as serious:

. . . .

2. For catholic employees

. . . .

(c) entering into a civil marriage that is invalid according to the Church’s teachings and its legal system …

. . . .

3. In the case of [employees] occupying managerial posts, conduct generally considered to be a possible ground for dismissal in accordance with paragraph 2 shall rule out any possibility of continued employment. …

(Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse [GrO 1993] [Basic Regulations on Employment Relationships in the Service of the Church], Sept. 22, 1993, AMTSBLATT DES ERZBISTUMS KÖLN [OFFICIAL JOURNAL OF THE ARCHDIOCESE OF COLOGNE] 1993, at 222, repromulgated in AMTSBLATT DES ERZBISTUMS KÖLN 2015, at 146 (citations omitted).)

Ruling

The ECJ recalled its ruling in an earlier case that if a church asserts that because of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate, and justified occupational requirement, such an assertion must be subject to effective judicial review. (Case C‑68/17, at 43 (citing Case C 414/16, Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, Apr. 17, 2018, ECLI:EU:C:2018:257, at 55, InfoCuria website).) The ECJ found that the same reasons in support of a requirement for effective judicial review apply in the case at issue. (Case C‑68/17, at 44.)

It stated that the national court must review whether such an occupational requirement is in fact genuine, legitimate, and justified. “Genuine” means that religion “must be necessary because of the importance of the occupational activity in question for the promotion of that ethos or the exercise by the church or organisation of its right of autonomy.” (Id. at 51.) A requirement is “legitimate” when it is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organization of its right of autonomy. (Id. at 52.) Finally, the ECJ held that “justified” means that the church can show that there is a probable and substantial risk that its ethos or autonomy are undermined if such an occupational requirement is not imposed. (Id. at 53.)

The ECJ stated that it is ultimately up to the national court to determine if these requirements are fulfilled, but the ECJ could nonetheless provide guidance. (Id. at 56.) It concluded that in the present case, it appears that these requirements are not fulfilled, because upholding “the sacred and indissoluble nature of religious marriage” does not seem to be necessary to provide medical advice and care and head an internal medicine department. (Id. at 57 & 58.) In the Court’s view, this finding is corroborated by the fact that Catholic employees in managerial positions are subjected to a different standard of good faith and loyalty than employees in managerial positions who are of a different faith or of no faith. (Id. at 59.)

In addition, the ECJ held that the occupational requirement does not seem to be justified. However, as with the previous requirement, it is ultimately up to the national court to verify whether the defendant has shown that there is a probable and substantial risk to its ethos or autonomy without it. (Id. at 60.)

Finally, the ECJ recalled that a national court must interpret the national law, in this case the German General Law on Equal Treatment, in a manner consistent with the EU Equal Treatment Directive as interpreted by the ECJ and, if necessary, change established national case law. (Id. at 63 & 64.) It stated that the prohibition of all discrimination on grounds of religion or belief is a mandatory general principle of EU law, codified in article 21 of the Charter of Fundamental Rights of the European Union. In the opinion of the Court, this principle confers on individuals “a right that they may actually rely on in disputes between them in a field covered by EU law.” (Id. at 69.) The Court concluded that if an interpretation of the national law consistent with EU law is not possible, the national court must disapply the national law. (Id. at 70; Charter of Fundamental Rights of the European Union art. 21, 2007 O.J. (C 303) 1, EUR-Lex website.)

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