§ 9 AGG and the EU Employment Directive

A breach of contract procedure begins with the Commission's opinion that a Member State has failed to fulfill an obligation under the Treaty. It gives the State the opportunity to comment on the facts and then provides a reasoned opinion on the matter (Art . 258 para . 1 TFEU ). If the state does not fulfill the requirements inside of the period set by the Commission, the Commission may call on the European Court of Justice to make a judgment. (Art . 258 para . 2 TFEU )

In 2000, the European Union, with the approval of Germany, adopted the so-called Employment Directive 2000/78. This Directive is the legal basis for the General Equal Treatment Act, particularly in the area of employment. In 2007, the European Commission initiated an infringement procedure acc. Art. 258 TFEU against the Federal Republic of Germany to examine whether all EU standards are adequately implemented in the AGG and if the exemption for religious employers complies with the Directive´s requirements.

A comparison of 2000/78/EG RL and § 9 para. 1 of the AGG demonstrates several differences as shown in this table.

The wording of § 9 para. 1 AGG differs in three respects from the Employment Directive:

a) § 9 is only concerned with the nature of the activity, whereas the Directive cites the particular circumstances of the activity.

b) In addition, § 9 is limited to one of the three prerequisites that are employed by the Directive as occupational requirements

c) Refers to the self-determination of religious communities, while the Directive is limited to the ethos of the organisation.

Unequal treatment based on religion in employment with religious employers in Germany is lawful through the AGG’s omission of certain requirements and the inclusion of the principle of self-determination. AGG standards appear to be less strict than the EU Directive.

In this respect, § 9 para. 1 AGG reduces European legal standards.

The German authorities informed the European Commission by letter dated May 30, 2008 that compliance with the Constitution is expressly allowed in the implementation of the Directive into national law. Since the Constitution provides for the self-determination of the churches, it was inserted in § 9 AGG. Should  there be a specific case of colliding constitutional law between the Church and an interested employee, the prohibition of discrimination would be taken into consideration through the balancing of interests in that individual case.

Furthermore, the Federal Government presents that "with respect to the requirements imposed by the Directive to a justification of discrimination, the elimination of requirements in § 9 para. 1 AGG appears to have no shortening, because, due to the rule of law in Art. 20 para. 3 GG in Germany, a measure is in any case lawful only if it is substantially and legally justified in a particular case. It is therefore not necessary to include these requirements separately in the text of the AGG ".

Therefore the European Commission withdrew its reservations about the appropriate transposition of EU policies and terminated the infringement proceedings.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2018