Cresco Investigation GmbH v Markus Achatzi.

• Jurisdiction: European Union
• Celex Number: 62017CJ0193
• ECLI: ECLI:EU:C:2019:43
• Docket Number: C-193/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 22 January 2019

Provisional text

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 grating 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)

In Case C‑193/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 24 March 2017, received at the Court on 13 April 2017, in the proceedings

Cresco Investigation GmbH

v

Markus Achatzi,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal, C. Toader and C. Lycourgos (Rapporteur), Presidents of Chambers, A. Rosas, M. Ilešič, M. Safjan, D. Šváby, C. Vajda and S. Rodin, Judges,

Advocate General: M. Bobek,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 10 April 2018,

after considering the observations submitted on behalf of

– Cresco Investigation GmbH, by M. Zehetbauer, Rechtsanwältin,

– M. Achatzi, by A. Obereder, Rechtsanwalt,

– the Austrian Government, by G. Hesse, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili and F. De Luca, avvocati dello Stato,

– the Polish Government, by B. Majczyna, M. Szwarc and A. Siwek, acting as Agents,

– the European Commission, by B.-R. Killmann and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 July 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 1, 2(2)(a), 2(5) and 7(1) of 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).

2 The request has been made in proceedings between Cresco Investigation GmbH (‘Cresco’) and Mr Markus Achatzi in respect of the latter’s right to a payment in addition to his regular salary for work done on a Good Friday.

Legal context

European Union law

3 Recital 24 of Directive 2000/78 states:

‘The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.’

4 Article 1 of that directive reads as follows:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

5 Article 2 of that directive provides:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

...

5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’

6 Article 7 of the same directive, headed ‘Positive action’, provides, in paragraph 1 thereof:

‘With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.’

7 Article 16 of Directive 2000/78 provides:

‘Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations are, or may be, declared null and void or are amended.’

Austrian law

8 Paragraph 1(1) of the version of the Arbeitsruhegesetz (Law on Rest Periods and Public Holidays, BGBl. 144/1983) applicable to the facts in the main proceedings (‘the ARG’) provides:

‘This federal Law shall apply to all employees of every kind, unless otherwise provided for below.’

9 Paragraph 7 of the ARG provides:

‘(1) Employees shall be entitled to an uninterrupted rest period of at least 24 hours on public holidays, which must begin not earlier than 00:00 and not later than 06:00 on the day of the public holiday.

(2) For the purposes of this federal Law, public holidays are:

1 January (New Year’s Day), 6 January (Epiphany), Easter Monday, 1 May (State Holiday), Ascension Day, Whit Monday, Corpus Christi, 15 August (Assumption of the Virgin Mary), 26 October (National Day), 1 November (All Saints’ Day), 8 December (Immaculate Conception), 25 December (Christmas Day) and 26 December (St. Stephen’s Day).

(3) Good Friday is also a public holiday for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church.

...’

10 Paragraph 9 of the ARG is worded as follows:

‘(1) Employees shall be entitled to payment for work not performed due to a public holiday.

(2) Employees shall be entitled to the payment that they would have received if they had not been allowed to be absent from work for the reasons specified in subparagraph 1.

...

(5) In addition to the remuneration payable in accordance with subparagraph 1, employees who work during the rest period associated with public holidays shall be entitled to payment for the work performed, unless time off in lieu has been agreed in accordance with Paragraph 7(6).’

11Directive 2000/78 was transposed into Austrian law by, inter alia, the Gleichbehandlungsgesetz (Law on Equal Treatment, BGBl. I, 66/2004). This establishes a principle of non-discrimination in connection with employment relationships, in particular on grounds of religion or belief, in the determination of pay and other working conditions.

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 Under Paragraph 7(3) of the ARG, Good Friday is a paid public holiday, entailing a 24-hour rest period for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church (‘the churches covered by the ARG’). If a member of one of those churches does nevertheless work on that day, he is entitled to additional pay in respect of that public holiday (‘public holiday pay’).

13 Mr Achatzi is an employee of Cresco, a private detective agency, and is not a member of any of the churches covered by the ARG. He claims that he suffered discrimination by being denied public holiday pay for the work he did on 3 April 2015, which was Good Friday, and, for that reason, seeks payment from his employer of EUR 109.09, plus interest.

14 The appeal court varied the judgment at first instance, which dismissed the action brought by Mr Achatzi.

15 The Oberster Gerichtshof (Supreme Court, Austria), which is hearing the appeal brought by Cresco against the decision on appeal, observes, first, that, of the 13 public holidays listed in Paragraph 7(2) of the ARG, all — except for 1 May and 26 October, which have no religious connotations — have a link with Christianity, 2 of them being exclusively linked to Catholicism. Further, all of these public holidays are paid days off for all employees, regardless of their religious affiliation.

16 The referring court goes on to note that the special regime established by Paragraph 7(3) of the ARG seeks to allow members of one of the churches covered by the ARG to practise their religion on a religious holiday that is particularly important for them.

17 According to the referring court, Paragraph 7(3) of the ARG makes the granting of an additional public holiday dependent on the employee’s religion, with the consequence that those who are not members of the churches covered by the ARG have one paid public holiday fewer than the members of one of those churches, which constitutes, in principle, less favourable treatment on grounds of religion.

18 The referring court is, however, unsure whether the situation of these two categories of employee is comparable.

19 It notes, in that regard, that the purpose of Paragraph 7(3) of the ARG is to allow employees who are members of one of the churches covered by the ARG to practise their religion on Good Friday without having to agree with their employer that they will take a day’s leave for that purpose. Employees who are members of the Roman Catholic Church, to which the majority of the Austrian population...