Opinion of Advocate General Bobek delivered on 25 July 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0193
• ECLI: ECLI:EU:C:2018:614
• Date: 25 July 2018
• Docket Number: C-193/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 25 July 2018(1)

Case C‑193/17

Cresco Investigation GmbH

v

Markus Achatzi

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling — Equal treatment in employment and occupation — National regulation conferring certain rights on a limited group of workers — Comparability — Direct discrimination on grounds of religion — Justification — Positive action — Horizontal application of the Charter of Fundamental Rights of the European Union — Horizontal direct effect of the Charter of Fundamental Rights — Obligations of employers and of national judges in case of incompatibility of national law with Article 21(1) of the Charter of Fundamental Rights and Article 2(2)(a) of Directive 2000/78/EC)

I. Introduction

1. Under Austrian law, Good Friday is a (paid) public holiday for members of four churches only. If, however, members of those churches work on that day, they are effectively entitled to double pay. Mr Markus Achatzi (‘the Applicant’) is employed by Cresco Investigation GmbH (‘the Defendant’). The Applicant does not belong to any of those four churches. Consequently he did not receive a paid holiday nor was he paid double for working on Good Friday in 2015.

2. The Applicant sued the Defendant for the extra pay he believes he should have received for working on Good Friday, arguing that the national rule discriminates on grounds of religion and belief with regard to working conditions and pay. It is in this context that the Oberster Gerichtshof (Supreme Court, Austria) asks the Court essentially whether, in the light of EU law, a national rule like the one at issue in the main proceedings is discriminatory, and if it is, what would be the consequence of such a finding during the period before the national legislature adopted a new, non-discriminatory legal regime: should all employees benefit from the Good Friday holiday rights and the additional pay (paid for by the employer) or should none of them receive such a benefit?

3. In its questions, the referring court invokes ‘Article 21 of the Charter (read) in conjunction with’ Directive 2000/78/EC. (2) A certain de facto content and application parallelism of a Charter provision and the relevant piece of secondary legislation giving expression to that Charter provision is certainly nothing new in the case-law of this Court. When dealing with the issue of abstract compatibility of a provision of national law with the Charter and an EU directive, (3) the question of what exactly is being applied to the case at hand is arguably of secondary importance. However, in the present case, the Court is invited to be specific as to the consequences of any such incompatibility for a specific (horizontal) type of legal relationship, which in turn requires the specificity as to what any such national rule would be incompatible with exactly in such type of relationship.

II. Legal framework

A. EU law

1. Charter of Fundamental Rights

4. Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides that: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

5. Article 52(1) of the Charter states that: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’

2. Directive 2000/78

6. Articles 1, 2 and 7 of Directive 2000/78 provide as follows:

‘Article 1

Purpose

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.

Article 2

Concept of discrimination

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;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless

…

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.

…

Article 7

Positive action

1. 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.

...’

B. National law

7. Paragraph 7(2) of the Bundesgesetz über die wöchentliche Ruhezeit und die Arbeitsruhe an Feiertagen (Arbeitsruhegesetz), BGBl. N 144/1983, as amended (Law on rest and holidays) of 3 February 1983 lists 13 national public holidays, applicable to all employees. Paragraph 7(3) provides that 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.

8. Paragraph 9 of the Law on rest and holidays provides in essence that a worker who does not work on a public holiday is still entitled to receive a full salary for that day (Paragraph 9(1)) and if he does work, he will be paid double (Paragraph 9(5)).

III. Facts, procedure and the questions referred

9. Anyone who works on any of the 13 paid public holidays in Austria receives on top of his normal salary additional holiday pay of the same amount (‘the indemnity’), with the practical result that he is paid double for working on those days. However, since Good Friday is a paid public holiday for members of the four churches only, only those members are entitled to a paid public holiday on Good Friday or to receive an indemnity in addition to their normal salary if they work on that day.

10. The Applicant is employed by the Defendant. He does not belong to any of the four churches. Consequently he did not receive a paid public holiday or an indemnity from the Defendant for working on Good Friday, 3 April 2015.

11. By his action, the Applicant is seeking a gross payment of EUR 109.09 plus interest. The statutory rule under which Good Friday is a public holiday solely for members of the four churches coupled with an indemnity in the event they in fact do work on that day gives rise, in his view, to discrimination on the grounds of religion and belief with regard to working conditions and pay.

12. The Defendant disputes that assertion and contends that the action should be dismissed with a corresponding order for costs. It maintains that no discrimination is involved.

13. The first-instance court dismissed the claim on the basis that the Good Friday rule constituted objectively justified differential treatment of situations that were not similar.

14. The appellate court allowed the Applicant’s appeal and varied the original judgment in such a way as to grant the Applicant’s claim. It based its decision on the assumption that the national rules providing for differences in treatment with respect to Good Friday are in breach of Article 21 of the Charter, which is directly applicable. There was, it found, direct discrimination of the employees in question on grounds of religion, which is not justified. Good Friday, as a public holiday, may therefore not be restricted to specific groups of employees, with the result that the Applicant, who had worked on Good Friday, 3 April 2015, was also entitled to an indemnity.

15. The Oberster Gerichtshof (Supreme Court) must now decide on the appeal on a point of law brought by the Defendant against the decision delivered on appeal and by which the Defendant seeks to restore the judgment of the first-instance court dismissing the action. That court decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Is EU law, in particular Article 21 of the Charter of Fundamental Rights, in conjunction with Articles 1 and 2(2)(a) of Directive 2000/78/EC, to be interpreted as precluding, in a dispute between an employee and an employer in the context of a private employment relationship, a national rule under which Good Friday is also a holiday, with an uninterrupted rest period of at least 24 hours, only for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church, and if an employee [belonging to one of those churches] works, despite that day being a holiday, he has, in addition to the entitlement to payment for the work not requiring to be performed as a result of the day being holiday, also an entitlement to payment for the work actually performed, whereas other employees, who are not members of those churches, do not have any such entitlement?

(2)...