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Ultra Vires Review and Church Autonomy: The German Constitutional Court’s Response to the CJEU in the Egenberger Case


I. The CJEU’s Egenberger Ruling at a Glance


On 17 April 2018, the CJEU rendered a judgment in Case C‑414/16, initiated by a request for a preliminary ruling from the German Federal Labour Court in the proceedings Vera Egenberger vs. Evangelisches Werk für Diakonie und Entwicklung eV (EWDE). This proceeding represented a particular interconnection between religious freedom and the prohibition of discrimination. EWDE, a registered association under the Evangelical Church, published an offer of fixed-term employment for a project producing a report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The offer of employment specified membership of a Protestant church (or a church belonging to the Working Group of Christian Churches in Germany) and identification with the diaconal mission as a precondition in an offer for employment, requiring the candidate to state his/her church membership in the curriculum vitae.[1]

After learning that her application had been rejected, Ms Egenberger, an applicant with no religious denomination, brought a complaint before the domestic labour court, alleging that she had been the victim of discrimination. The court of appeal, the Federal Labour Court, referred the case to the CJEU, seeking an interpretation of Article 4(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The provision reserves a discretion for Member States’ national practices regarding occupation activities within churches (and other public or private organisations, the ethos of which is based on religion or belief), namely, by stipulating that a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of the activities or of the context in which they are carried out, it constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. Against this background, the referring court asked the CJEU whether EWDE may authoritatively determine whether a particular religion of an applicant constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer or church’s ethos.[2]

The CJEU emphasised that the genuine, legitimate and justified nature of the occupational requirement shall comply with the principle of proportionality, ensuring that such a requirement does not go beyond what is necessary for the objective pursued.[3] Furthermore, the CJEU confirmed that Articles 21 and 47 of the Charter for Fundamental Rights, the former providing the prohibition of discrimination and the latter the right to an effective remedy, confer a right on individuals which they may rely on as such in disputes between them in a field covered by EU law, thus strengthening the horizontal effect of fundamental rights.[4] Consequently, the CJEU concluded that “a national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.”[5]

In sum, the CJEU’s ruling provides that the principle of non-discrimination on grounds of religion, as given concrete expression in Directive 2000/78, is capable of producing horizontal effects in disputes between private parties. Moreover, it can also be concluded from the judgment that where a church or organisation rejects an application for employment on the grounds that, by reason of the nature of the activities concerned, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be the subject of effective judicial review.[6] Based on the CJEU’s interpretation, the Federal Labour Court held that EWDE had unlawfully discriminated against Ms Egenberger, as the church membership was not a genuine, legitimate, and justified occupational requirement for the position in question, and awarded Ms Egenberger compensation for discrimination.[7]


II. The GFCC’s Ruling: The Constitutional Test of the Egenberger Case


EWDE challenged the Federal Labour Court’s judgment in a constitutional complaint before the GFCC, arguing that the application of the standards set forth by the CJEU violates its constitutional right to religious self-determination. Furthermore, EWDE claimed that the CJEU’s ruling constituted an ultra vires act, which infringed Germany’s constitutional identity.

First, in order to determine whether the association’s right to religious self-determination had been violated, the GFCC applied a two-stage assessment. The first stage consists of a plausibility check to determine whether the matter falls within the scope of protection of the right concerned, thereby clarifying whether the issue is of a religious nature. In light of the CJEU’s jurisprudence, the plausibility review is refined into an objective, case-specific assessment requiring courts to determine whether the occupational requirement in question bears a direct and necessary connection to the nature or context of the activity concerned, thereby limiting deference to the religious body’s self-conception without engaging in theological evaluation and within the limits imposed on religious self-determination.[8]

The second stage entails a comprehensive balancing exercise between the interests of the employees concerned and the constitutionally protected right of religious communities to self-determination. Here, the GFCC introduced the criteria of proportionality, with reference to the nature of the activity. In light of this, the Court ruled that the direct connection between the professional requirement of church membership and the activity in question had to be taken into account in the assessment of the interests of the employees.[9] The GFCC, therefore, incorporated the proportionality test envisaged by the CJEU, and, based on it, held that the Federal Labour Court’s judgment violated the association’s right to religious self-determination, as it did not sufficiently take into account the leeway afforded to domestic law in Article 4(2) of the Directive, and the constitutional guarantees of the right concerned.[10]  

Furthermore, the GFCC also examined whether the CJEU’s Egenberger ruling constitutes an ultra vires act. According to the Court, ultra vires control requires a sufficiently qualified competence overrun, which is of structural importance for the distribution of competences between the EU and the Member States. Based on these criteria, the GFCC concluded that the CJEU’s ruling had not amounted to an ultra vires act, nor had it led to a situation that fell below the fundamental rights standard provided by German constitutional law.[11] With this judgment, therefore, the GFCC strengthened the constitutional guarantees of the right to religious self-determination by establishing that there had been no discrimination with regard to Ms Egenberger. In addition, the Court reaffirmed its function as a guardian of the limits of the CJEU’s competences, thereby indicating its intention to retain the final word in cases involving the application of anti-discrimination law, where the EU may take appropriate measures to the extent conferred upon it by the Treaties.[12]

 

III. Implications for Judicial Dialogue in the EU regarding Ultra Vires Review


In previous years, the GFCC provided crucial indications on ultra vires review and identity review concerning the activity of the EU institutions. For example, in the Honeywell case, the GFCC stated that the ultra vires review would be applicable “if a breach of competences on the part of the European bodies is sufficiently qualified. This is contingent on the act of the authority of the European Union being manifestly in breach of competences and the impugned act leading to a structurally significant shift to the detriment of the Member States in the structure of competences”.[13] It is linked to the identity review in the sense that the ultra vires review, due to the circumstance that “the exceeding of competences in a sufficiently qualified manner also affects the constitutional identity”, represents a specific case of “the application of the general protection of the constitutional identity by the Federal Constitutional Court”.[14] In the PSPP case (the European Central Bank’s Public Sector Purchase Program), the GFCC actually determined that the judgment of the CJEU was rendered ultra vires.[15]

Against this background, it is not surprising that the judgment of the GFCC in the Egenberger case was a long-awaited one in German and European legal theory.[16] Although no ultra vires act was found, the present judgment reasserts the competence boundaries of the CJEU, and demonstrates that expansive readings of EU law, in the present case, anti-discrimination and equality law, may encounter constitutional scrutiny from domestic courts where they affect national arrangements protected by constitutional law, such as church autonomy. In conclusion, the Egenberger cases demonstrate that ultra vires review in the EU legal order increasingly operates as a tool for judicial dialogue, representing a constructive dialogue rather than open confrontation with the CJEU.

 


[1] Case C‑414/16, CJEU, para. 25.

[2] Case C‑414/16, para. 41.

[3] Case C‑414/16, para. 68.

[4] Chiacchi, A.C. (2019) ‘The Direct Horizontal Effect of EU Fundamental Rights’, European Constitutional Law Review, 15(2), pp. 299–302.

[5] Case C‑414/16, para. 82.

[6] Frantziou, E. (2018) ‘Mangold Recast? The ECJ’s Flirtation with Drittwirkung in Egenberger’, European Law Blog. See: https://www.europeanlawblog.eu/pub/mangold-recast-the-ecjs-flirtation-with-drittwirkung-in-egenberger/release/1 (Accessed: 10 December 2025). See also:

[7] Decision of 25 October 2018, Federal Labour Court. See: https://www.bundesarbeitsgericht.de/entscheidung/8-azr-501-14/ (Accessed: 10 December 2025).

[8] Order of 29 September 2025, GFCC, para. 217. See: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2025/09/rs20250929_2bvr093419.html (Accessed: 11 December 2025).

[9] Order of 29 September 2025, para. 220.

[10] Order of 29 September 2025, para. 267.

[11] Order of 29 September 2025, paras. 229–235.

[12] See: Article 19 of the Treaty on the Functioning of the European Union.

[13] Order of 6 July 2021, GFCC, headnote 1a. See: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/07/rs20100706_2bvr266106en.html (Accessed: 13 December 2025).

[14] Judgment of 21 June 2016, GFCC, para. 153. See: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2016/06/rs20160621_2bvr272813en.html (Accessed: 13 December 2025).

[16] See also: Mahlmann, M. (2025) ‘Winning by Losing. The Egenberger Decision and the Reconfiguration of Religious Freedom in Germany’, Verfassungsblog. See: https://verfassungsblog.de/winning-by-losing-egenberger/ (Accessed: 15 December 2025).

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