Religious Communities and Their Employees

3.1. Variations of the Problem

Let us now take a closer look at how the ECtHR has approached cases where respect for the autonomy of a religious community and regard for an employeeʼs fundamental rights are in conflict with each other.

The problem can be formulated, on the one hand, as a question of what positive obligations the State authorities have when it comes to protecting employeesʼ fundamental rights. On the other hand, the problem can be formulated as a question of what negative obligations the State authorities have not to intervene in the internal affairs of the religious community. The case may be, for example, that a religious community has dismissed an employee, and the national courts, in the context of subsequent judicial proceedings, must take both the employeeʼs fundamental rights and the religious communityʼs autonomy into account.¹⁴

According to the circumstances, the case may also be that the State authorities are regarded as having restricted the fundamental rights of an employee, in order to actively protect the autonomy of the religious community¹⁵ – or, alternatively, it is claimed that the State authorities should have done so.

The fundamental question is arguably the same, however, in all these relations; namely, what balance should be struck between the religious communityʼs right to autonomy and the employeeʼs fundamental rights. As the Strasbourg Court has stated in a judgment concerning the State authoritiesʼ dismissal of a religion teacher because the respective religious community had withdrawn its authorisation of him, the ʻboundaries between the Stateʼs positive and negative obligations (…) do not lend themselves to precise definitionsʼ, but ʻthe applicable principles are nonetheless similarʼ.¹⁶

In the Sindicatul ʻPastorul Cel Bunʼ v Romania Grand Chamber judgment of 2013, concerning the State authoritiesʼ restriction of religious employeesʼ right under Article 11 ECHR to form a trade union, in order to protect the autonomy of the religious community, the ECtHR observed:

(…) the outcome of the application should not, in principle, vary according to whether it was lodged with the Court under Article 11 of the Convention, by the person whose freedom of association was restricted, or under Articles 9 and 11, by the religious community claiming that its right to autonomy was infringed.¹⁷

3.2. From ʻDefinitional Balancingʼ to ʻProportional Balancingʼ

In its earlier case law, the European Commission of Human Rights (now dissolved) appears to have regarded the so-called exit option as decisive in cases concerning the relationship between religious communities and their employees.¹⁸ As long as the employee had been free to leave their post and the community in case of doctrinal disagreement, this was regarded as a sufficient protection of the employeeʼs rights to freedom of religion and freedom of expression. Such rights were not regarded as interfered with on account of the communityʼs sanctions against the dissident employee (not even if the religious community was a State church),¹⁹ nor did the State necessarily have any duty to take positive measures to protect the employeeʼs fundamental rights in such cases.²⁰

It has been claimed that the Commission in these earlier cases applied what can be termed as a ʻdefinitional balancingʼ approach to religious employment cases.²¹ That is, the Commission demarcated the applicability of the rights claims at issue in a way that precluded a conflict between them. This approach has been contrasted with what can be termed the ʻproportional balancingʼ approach,²² which has been applied by the ECtHR in judgments concerning religious employment cases from at least 2009 onwards.²³ Under this approach, the Court does not resolve the issue by demarcating the respective spheres of application of each right, but through ʻa thorough balancing exercise between the competing interests at stakeʼ.²⁴ It is illustrative of this approach that in its Grand Chamber judgment in Sindicatul of 2013, the Court rejected the respondent stateʼs allegation that the right to form trade unions pursuant to Article 11 ECHR was not applicable to the applicants, because they were clergy, performing special religious duties.²⁵ The special features of the employment relationship were instead treated as relevant to the assessment of whether the interference with the exercise of the right to form a trade union had been ʻnecessary in a democratic societyʼ, which entailed a proportionality assessment.²⁶

One can say that Article 9 ECHR does not ground a ʻministerial exceptionʼ from the other provisions of the ECHR or from anti-discrimination legislation, on the model of how the Supreme Court of the United States has interpreted the First Amendment to the US Constitution.²⁷ The ECHR rights are applicable, in various ways, to disputes between a religious community and its employees, clergy included, but regard for the autonomy of the religious community is important to the proportionality assessment.

The Strasbourg Courtʼs reasoning has been said to represent an open-ended and ad hoc ʻproportional balancing exercise or testʼ.²⁸ As such, it has been criticised for being ʻvulnerable to the charges of arbitrariness, subjectivity, and irrationalityʼ.²⁹ Various alternative approaches have been suggested.³⁰ My view is that by reflecting on the assessments actually conducted by the ECtHR, the appearance of arbitrariness can be weakened, as the following analysis aims to demonstrate.

In what follows, I analyse more closely various aspects of the proportional balancing test, as it pertains to religious employment cases. The purpose is to contribute to a clearer and more comprehensive picture of the nature of this test. I begin with a basic outline of the ECtHRʼs approach.

3.3. An Outline of the Proportional Balancing Test

In its Grand Chamber judgment of Fernández Martínez v Spain of 2014, the ECtHR set out general principles for how to approach cases where the autonomy of religious communities must be balanced against the fundamental rights of employees. The judgment concerned an applicant who had been employed as a teacher of Catholic religion and ethics in a state-run secondary school. After six years of teaching, from 1991 to 1997, his employment was terminated, as the Ministry of Education decided not to renew his contract. The reason for the non-renewal was that the local bishop had decided to withdraw the applicantʼs authorisation to teach the Catholic religion in public institutions. This withdrawal was occasioned by newspaper reports on the applicantʼs family situation. The applicant had been ordained as a priest, but had then married, without having waited for the Vaticanʼs decision on his application for dispensation from the obligation of celibacy. That teachers of the Catholic religion in State schools had to be approved by the Catholic Church was stipulated in an international agreement – a concordat – between Spain and the Holy See.³¹

After the national administrative and judicial authorities had rejected the applicantʼs complaint against the Ministryʼs decision, the applicant complained to the Strasbourg Court.³² Before the Court, the applicant alleged that the non-renewal of his contract of employment had violated his right to respect for his private and family life pursuant to Article 8 ECHR.³³ Both the Chamber and the Grand Chamber found that the Spanish State had not violated this provision in respect of the applicant, but the Grand Chamber was divided, with a bare majority of 9 judges against 8 judges.³⁴

The Grand Chamber agreed that Article 8 was applicable to the case, as the non-renewal affected ʻhis chances of carrying on his specific professional activityʼ and was due to ʻevents mainly relating to personal choices he had made in the context of his private and family lifeʼ.³⁵ The non-renewal decision was, furthermore, regarded as an interference by a public authority with the applicantʼs right to respect for his private life.³⁶

The interference was considered to have been ʻin accordance with the lawʼ pursuant to Article 8 ECHR,³⁷ and to have ʻpursued the legitimate aim of protecting the rights and freedoms of others, namely those of the Catholic Church, and in particular its autonomy in respect of the choice of persons accredited to teach religious doctrineʼ.³⁸

Thus, the decisive question was whether the non-renewal decision was ʻnecessary in a democratic societyʼ, which, according to established case law, is the case ʻif it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”ʼ.³⁹

In this regard, the ECtHR stressed that ʻit is called upon to rule on a conflict between two rights that are equally protected by the Conventionʼ, namely, ʻthe applicantʼs right to his private and family life, on the one hand, and the right of religious organisations to autonomy, on the otherʼ, and to ʻweigh up the interests at stakeʼ. The Court furthermore observed that the ʻState is called upon to guarantee both rights and if the protection of one leads to an interference with the other, to choose adequate means to make this interference proportionate to the aim pursuedʼ.

The Court then observed as follows:

(…) [A] mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its membersʼ rights to respect for their private or family life compatible with Article 8 (…). In addition, the religious community in question must also show, in the light of the circumstances of the individual case, that the risk alleged is probable and substantial and that the impugned interference with the right to respect for private life does not go beyond what is necessary to eliminate that risk and does not serve any other purpose unrelated to the exercise of the religious communityʼs autonomy. Neither should it affect the substance of the right to private and family life. The national courts must ensure that these conditions are satisfied, by conducting an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake (…).⁴⁰

As we see, the Court emphasised the importance of a proportionality assessment. In Fernández Martínez, the question, from the Courtʼs perspective, was whether the national authoritiesʼ interference with the applicantʼs rights under Article 8 ECHR, was proportionate to the aim of protecting the autonomy of the Catholic Church. As explained above in section 3.1, the contours of the assessment will be the same if the question is whether a limitation of the religious communityʼs autonomy, in order to protect employeesʼ rights, was justified pursuant to Article 9 ECHR, and also if the question is whether the national authorities fulfilled their positive obligations to the religious community or the employee.

In section 3.4, I add some comments on the relationship in such cases between the Strasbourg Court and the national courts. In section 3.5, I consider more closely some of the fundamental characteristics of the proportionality assessment as it pertains to religious employment cases.

3.4. Comments on the ʻMargin of Appreciationʼ

As regards the relationship between the ECtHR and the national courts in religious employment cases, the central question is what margin of appreciation the Court grants the national authorities in such cases. The ʻmargin of appreciationʼ is a multifaceted concept, and its exact meaning and implications are contested.⁴¹ In its broadest sense, it can be said to mean that ʻthe State is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative, or judicial action in the area of a Convention rightʼ.⁴² For the purpose of this article, the national authorities are regarded as having been given a ʻmargin of appreciationʼ in respect of the concrete proportionality assessment when the ECtHR, to a greater or lesser degree, defers to the national authoritiesʼ substantive proportionality assessment, and instead focuses on the fairness of the procedures leading to the various national decisions, as well as on the question of whether the reasons adduced to justify the interference at issue were ʻrelevant and sufficientʼ.⁴³

In Fernández Martínez, the Strasbourg Court explicitly observed that ʻin this contextʼ, that is, in respect of the balance that has to be struck between the right to private and family life and religious communitiesʼ right to autonomy, ʻthe State has a wide margin of appreciationʼ.⁴⁴ Later in the same judgment the Court emphasised, as a general point, that there will ʻusually be a wide margin if the State is required to strike a balance between (…) different Convention rightsʼ.⁴⁵ This statement is applicable to religious employment cases in general.

On the basis of these statements, as well as on the basis of the Strasbourg Courtʼs specific reasoning in various judgments, a few additional points should be noted.

First, the ECtHR has been adamant that each CoE State has a particularly wide margin of appreciation when it comes to the relationship between the State and various religious communities. As the Court has put it,

where questions concerning the relationship between State and religions, on which opinion in a democratic society may reasonably differ widely, are at stake, the role of the national decision-making body must be given special importance (…). This will be the case in particular where practice in European States is characterised by a wide variety of constitutional models governing relations between the State and religious denominations (…).⁴⁶

This particularly wide margin of appreciation as far as the relationship between the State and religious communities is concerned, has played a role in certain types of religious employment cases, as where the public authorities have dismissed a publicly employed religious education teacher. The Strasbourg Court has held that arrangements whereby religious communities authorise publicly employed teachers who are to teach specific religious doctrines to pupils belonging to the religious creed at issue, are not per se a violation of the ECHR. Whether there has been a violation of the individual teacherʼs fundamental rights in case of dismissal will depend on the specific circumstances.⁴⁷

Second, when it comes to the concrete proportionality assessment in religious employment cases, the wide margin of appreciation the ECtHR has said that the national authorities enjoy does not imply that the Court refuses to concern itself with the substance of the assessment at all, and only focuses on the fairness of the decision-making procedure. For one thing, there will be limits to the margin of appreciation, as ʻthe final evaluation of whether the interference is necessary remains subject to review by the Court.ʼ⁴⁸

More importantly, by focusing on the relevance and sufficiency of the national courtʼs reasoning, the Strasbourg Court in effect scrutinises how substantively persuasive the reasoning appears to be, at least to some extent. I elaborate on this point in section 4.7 below.

Furthermore, by outlining general principles for the assessment, and evaluating the national courtʼs reasoning in light of these general principles, the ECtHR provides guidance for how the national decision-making bodies should proceed when conducting a proportionality assessment in a religious employment case.⁴⁹

Third, the Court has not been entirely consistent as regards the width of the margin of appreciation in religious employment cases. There are cases where the Court has said that the margin of appreciation will be limited,⁵⁰ or where it can be claimed that the Court in reality evaluates in some detail the proportionality assessment of the national court.⁵¹ In light of the circumstances of these cases, it can perhaps be said that the less a case concerns a communityʼs core religious activities, and the more other fundamental rights have been restricted, the more strict the scrutiny of a national court decision in the communityʼs favour will be. Conversely, it can be assumed that the more a case does concern a communityʼs core religious activities, and the less other fundamental rights are restricted, the more strict the scrutiny of a national court decision in the employeeʼs favour will be.

3.5. Fundamental Characteristics of the Proportionality Assessment

The task now is to consider in more detail some of the fundamental characteristics of the proportionality assessment in religious employment cases. In this regard, an important question is how much of a break with prior case law the ʻproportional balancingʼ approach of Fernández Martínez and other judgments really signify, and, furthermore, what role the ʻexit optionʼ can be said to play in the context of the current approach.

One point is that in the earlier case law concerning religious employment cases, the Commission occasionally referred to the need to weigh the contradictory interests involved. This is most particularly the case in the Rommelfanger decision of 1989, where a Catholic hospital had dismissed a physician on account of his public stance in favour of abortion rights. The German labour courts had upheld the dismissal. The Commission found that the State authorities had not failed to comply with their positive obligation to protect the employeeʼs rights under Article 10 ECHR. In this regard, the Commission emphasised that the national courts had been ʻrequired to weigh the applicantʼs interests, including his interest in freedom of expression, against (…) the right of the church to regulate its internal affairsʼ.⁵²

Thus, the approach in the Rommelfanger decision resembles more the proportionality assessments in Fernández Martínez and other judgments from the last 15 years than the allegedly strict definitional balancing approach of other Commission decisions. The latter decisions were for the most part concerned with allegations from clergymen that their individual right to freedom of religion had been violated because they had been sanctioned on account of doctrinal disagreements or the way they had performed their clerical functions.⁵³

These observations give rise to the question of whether the ECtHRʼs approach to religious employment cases will vary with the provisions that are invoked and the specific facts of the complaint – that is, whether complaints that concern a ministerʼs individual freedom of religion will be held to fall outside the scope of the ECHR.⁵⁴ In my view, the approach to religious employment cases should not be assumed to differ as to fundamentals, according to such variables. If the employeeʼs conduct, for which they have been sanctioned, can be regarded as an exercise of a fundamental right when viewed in isolation, then the proportionality test set out in Fernández Martínez and other judgments should be considered to apply. It appears unnecessarily obfuscating to operate with different types of tests according to the variables highlighted above, and the Strasbourg Court has not stipulated that different types of tests should apply.

That said, in practical terms, the dismissal of a minister who refuses to conform to the doctrines of the community will typically be regarded as unquestionable for ECHR purposes. One can easily and foreseeably reach that conclusion by applying the proportionality test set out in Fernández Martínez, however, without having to resort to a different type of test for this particular type of case. After all, it lies at the core of religious communitiesʼ right to autonomy that they can require clergy to conform to the doctrines of the community and to perform religious ceremonies in particular ways.

This consideration leads to the second main point that should be highlighted with respect to the relationship between the current proportionality test and the so-called definitional balancing approach of earlier times. This point is that the ECtHR has continued to attach great importance to the ability of religious communities to employ persons who are committed to the doctrines of the community, as long as the requirements appear relevant under the circumstances.⁵⁵ As the Court has put it, ʻthe principle of religious autonomy prevents the State from obliging a religious community to admit or exclude an individual or to entrust someone with a particular religious dutyʼ.⁵⁶ The Court has, furthermore, continued to refer to the so-called exit option as the ultimate safeguard of the employeeʼs fundamental rights, and this perspective should be regarded as constituting a distinctive feature of the proportionality assessment in religious employment cases. As the Grand Chamber stated in Fernández Martínez, ʻin the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individualʼs freedom of religion is exercised by the option of freely leaving the communityʼ.⁵⁷

At the same time, it is emphasised in Fernández Martínez that if the religious communityʼs actions affect the employeeʼs right to respect for their private or family life, the community can be expected to explain why the actions were important in order to safeguard its autonomy, and to show that the actions were not too far-reaching.⁵⁸ That is, the community itself must have acted reasonably and proportionately. If not, the State authorities should not follow up and give effect to the communityʼs decision (if the State is the formal employer, as in Fernandez Martinez), or, alternatively, the State authorities may have a positive obligation to protect the employee against the decision of the community, for example by finding in the employeeʼs favour in a subsequent labour dispute.⁵⁹

These principles should be regarded as applicable also with regard to interferences with other fundamental rights, such as the employeeʼs right to freedom of expression,⁶⁰ or the employeeʼs right to freedom of religion.⁶¹ The principles should also be regarded as applicable, mutatis mutandis, where the State authorities have acted to protect the employee against the religious communityʼs decision, and the community complains that the State authorities have violated its right to autonomy.⁶² In order to substantiate its complaint, the community should then explain why its actions were a reasonable and proportionate response to the perceived threat to its cohesion and autonomy.

In all such cases, the task of the national courts will be to conduct ʻan in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stakeʼ.⁶³ The ECtHR, for its part, will review the concrete assessment conducted by the national courts.

The balancing exercise must not, however, be a more or less arbitrary weighing of different interests. To avoid this, and in order to harmonise the above highlighted elements of the proportionality test with a continued emphasis on the right to autonomy of religious communities, including the importance of the ʻexit optionʼ, the following observation appears pertinent. The assessment of whether the religious communityʼs actions were a reasonable and proportionate response must be conducted having regard for the fundamental premise highlighted above, in section 2, namely that it is up to the community itself to define its own doctrines, and that it is entitled to organise its activities in accordance with these doctrines. The communityʼs actions must, therefore, as a starting point and main rule, be assessed in light of its own doctrines and beliefs, not in light of whatever doctrines and beliefs the State authorities regard as reasonable. This point is extremely crucial to grasp in order to get to grips with the nature of the proportionality assessment in religious employment cases. The State authorities cannot evaluate the reasonableness of the communityʼs employment decisions without regard for how the community understands itself.⁶⁴

4.1. Introductory Comments

On the basis of the above reflections on the fundamental nature of the proportionality assessment in religious employment cases, I now proceed to a more detailed consideration of a number of factors that may be of importance to the concrete assessment.

In its Travaš v Croatia judgment of 2017, the ECtHR summarised those factors that, according to its earlier jurisprudence (particularly the Fernández Martínez judgment), could be considered to be of particular importance ʻin instances where the employment contract of a religious education teacher was terminated because the Church deemed that he or she was no longer suitableʼ. The Court referred to the following factors: ʻstatus of the applicant; exposure of the applicantʼs situation; Stateʼs responsibility as an employer; severity of the sanction; and review by the domestic courtsʼ.⁶⁵

As the Strasbourg Court has highlighted these factors as particularly relevant in at least some cases where the autonomy of a religious community and the fundamental rights of an employee are in tension with each other, it appears expedient to take this enumeration as a point of departure for a further exploration of the details of the proportionality assessment. As the following exploration will show, however, other parts of the case law imply that also other factors than those explicitly enumerated in the Travaš judgment can be important. The following identification and discussion of various factors are based, therefore, on the Courtʼs case law as a whole.

At this point, it bears stressing that, at the end of the day, the Court will conduct an overall assessment and balancing of all those factors that are regarded as relevant in light of the circumstances of the specific case at hand. The following discussion of specific factors is not meant to distract from this important feature of the Courtʼs approach. The purpose of focusing on specific factors is to contribute to a more comprehensive understanding of the proportionality assessment, by highlighting the role and weight of each of the factors, and by facilitating discussion of a number of contested questions that the various factors give rise to.

After having focused on the role of specific factors in sections 4.2 to 4.7, I proceed in section 5 to gather up some of the threads, and provide some concluding comments on the overall assessment that must be conducted.

4.2. What Loyalty the Community can Require of the Employee

Let us first consider the first of the factors highlighted in the Travaš judgment, namely the status of the applicant. The case law shows that this expression refers to various types of considerations, which can be distinguished from one another.

One central question in this regard will be whether the community can impose a heightened duty of loyalty on the employee,⁶⁶ or can, at least, require the employee to conform to religious doctrines of importance to the community in their private life, in their public expressions and so on.

This will depend, first, on the nature of the employeeʼs post. The more closely linked this post is to the communityʼs proclamatory mission or to important religious functions – that is, to its teaching activities, the dissemination of its doctrines, the performance of religious rituals and so on – the stricter the requirements that the community can reasonably impose on the employee are.⁶⁷ The requirements can probably be particularly strict in respect of leadership positions,⁶⁸ as well as in respect of employees tasked with special religious duties, such as clergy.⁶⁹ This constitutes an objective perspective on the question of what degree of loyalty the community can require of the employee.

In addition, it is of importance whether the employee can be said to have ʻknowingly and voluntarily accepted a heightened duty of loyalty towardsʼ the religious community.⁷⁰ It can be asked whether the applicant, on the basis both of what has been explicitly stipulated in the employment contract and other circumstances, waived aspects of their fundamental rights. This constitutes a subjective perspective on the question of what degree of loyalty the community can require of the employee.

The objective and subjective perspectives should be regarded as closely linked with each other. A person who assumes, for example, a teaching post with a religious community, can typically be presumed to have had an understanding of the communityʼs doctrines, and of the requirements of loyalty to these that the community expects.⁷¹ The more explicit the community has been beforehand, however, with regard to its loyalty requirements, the less questionable will it appear that the community imposes a heightened duty of loyalty, and sanctions expressions or conduct which contradict the communityʼs doctrines.⁷²

Conversely, the less crucial the employeeʼs work tasks appear to be to the communityʼs proclamatory mission, the more questionable will it be that the community imposes a heightened duty of loyalty, or that the community at all requires the employee to act in specific ways apart from performing their specific tasks. Think of cleaning staff, janitors, office staff and so on.

A court can, however, be faced with difficult considerations in this regard. The religious community may claim that all, or most, of its employees have an important role with regard to communityʼs proclamatory mission. That they, irrespective of their formal role or job title, are expected to bear witness to the communityʼs faith in various ways. By way of example, in Norway there have been instances of religiously based schools claiming that as all teachers at the school, irrespective of what subjects they teach, are expected to deliver brief devotionals to the pupils, and in other ways act as Christian role models, they should be allowed to impose a heightened duty of loyalty on all their teachers.⁷³

Thus, a consideration of the nature of the post may, on occasion, itself raise questions as to the meaning and scope of the fundamental right to autonomy of religious communities. The community may claim that its own consideration of what loyalty requirements to impose in respect of various posts, should be decisive, and not be subjected to judicial scrutiny.

It then becomes a pertinent question how a court should approach claims like these.⁷⁴ The difficulty of the question is illustrated by case law from various national jurisdictions, such as the case law of the Supreme Court of the United States.⁷⁵

The Strasbourg Courtʼs case law, for its part, indicates that the national courts should evaluate critically the religious communityʼs claim that a specific post is important to the communityʼs proclamatory mission, at least if this prima facie appears questionable. Take, for instance, the Schüth judgment of 2010. This judgment concerned an organist and choirmaster at a Catholic parish church who left his wife and found a new partner. This eventually led to the parish church dismissing him from his post ʻon the ground that he had breached his duty of loyalty under (…) the Catholic Churchʼs Basic Regulationsʼ. The extramarital relationship was not in conformity with ʻthe Catholic Churchʼs fundamental principles enshrining the sanctity of marriageʼ, and the applicant was therefore deemed to be unfit to continue as the parish organist.⁷⁶

The organist took his case to court, but the final decision of the national courts was that the dismissal was justified.⁷⁷ The organist then complained to the ECtHR. The crucial question before the Court was ʻwhether the State was required, in the context of its positive obligations under Article 8, to uphold the applicantʼs right to respect for his private life against his dismissal by the Catholic Churchʼ, which depended on ʻhow the German employment tribunals balanced the applicantʼs right with the Catholic Churchʼs right under Articles 9 and 11ʼ.⁷⁸

The Court conducted a critical evaluation of the reasoning of the national courts in this regard. The Employment Appeal Tribunal had found the dismissal justifiable ʻon account of the proximity of his work to the Churchʼs proclamatory missionʼ.⁷⁹ The Court found the national courtʼs reasoning questionable on this point, as the Employment Appeal Tribunal ʻdid not examine the question of the proximity between the applicantʼs activity and the Churchʼs proclamatory mission, but appears to have reproduced the opinion of the employing Church on this point without further verificationʼ. The Court furthermore observed that a dismissal based on a breach of loyalty cannot be subjected ʻonly to a limited judicial scrutiny exercised (…) without having regard to the nature of the postʼ.⁸⁰

There are other judgments that also indicate that the national courts should evaluate critically the religious communityʼs allegations as to the nature of the post.⁸¹ Such an approach appears to harmonise with EU law concerning the relationship between employeesʼ protection against discrimination and religious communitiesʼ autonomy to base their employment decisions on, for example, the religious affiliation of the employee. The 2018 Egenberger v Evangelisches Werk judgment of the Court of Justice of the EU (CJEU) sets out some fundamental principles in this regard.⁸² This was a preliminary ruling concerning the interpretation of Article 4(2) of the EUʼs Anti-Discrimination Directive (ADD).⁸³ The request had been made in proceedings concerning a claim for compensation for discrimination on grounds of religion allegedly suffered by a job applicant in a recruitment procedure.⁸⁴

Article 4(2) ADD establishes that in connection with ʻoccupational activitiesʼ within religious communities, a ʻdifference of treatment (…) based on (…) religionʼ does not have to be regarded as prohibited discrimination, as long as religious affiliation, ʻby reason of the nature of these activitiesʼ, constitutes ʻa genuine, legitimate and justified occupational requirement, having regard to the organisationʼs ethosʼ. Furthermore, pursuant to Article 4(2), a religious community can, in general, ʻrequire individuals working for them to act in good faith and with loyalty to the organisationʼs ethosʼ. We thus see that the ADD attempts to balance protection against discrimination with the interest of religious communities in employing persons who believe in, or at least support, the doctrines of the community.

What is important for our purposes is that the CJEU in its Egenberger judgment stated that if a religious community asserts that a job applicantʼs religion constitutes a justified requirement pursuant to Article 4(2), ʻit must be possible for such an assertion to be the subject (…) of effective judicial reviewʼ.⁸⁵ Thus, the consideration of this question cannot depend solely on the religious communityʼs own view of what degree of adherence to its doctrines the post at issue requires. The national court should, from the point of view of the communityʼs own doctrines, and in light of the nature of the post, critically evaluate whether the requirement was justified.⁸⁶

4.3. The Nature and Gravity of the Applicantʼs Conduct

Another important consideration in connection with the status of the applicant is the nature and gravity of the applicantʼs breach of loyalty. The more explicit and the graver the breach of loyalty was, the more reasonable it can be said to be that the community sanctioned the breach.

This gives rise to the question of how the national authorities should approach the religious communityʼs allegations concerning the gravity of the applicantʼs conduct. Again, regard must be had to the autonomy of the religious community, which implies that, as a starting point, it is up to the community both what doctrines its adherents are expected to live in accordance with, and how grave various kinds of breaches are.

The national courts should, however, be competent to evaluate, at least up to a point, how reasonable the religious communityʼs reaction, in light of the communityʼs own doctrines, appears to be. The communityʼs reaction should not appear as arbitrary.

The Travaš v Croatia judgment of 2016 provides an illustrative example of an assessment by the Strasbourg Court of how grave, in the light of the religious communityʼs own doctrines, the applicantʼs breach of loyalty could reasonably be considered to be. The judgment concerned, like the Fernandez Martinez judgment of two years earlier, a teacher of Catholic religious education who had been dismissed from his post in the public school system after his canonical mandate had been revoked.⁸⁷ The mandate had been revoked because he had violated, in his private life, church doctrines on marriage.⁸⁸ In the subsequent judicial proceedings, the national courts conducted a balancing exercise where they weighed the interests involved, and upheld this dismissal.⁸⁹

With regard to how grave the applicantʼs breach of loyalty had been, the Strasbourg Court observed as follows:

95. The Court notes however that although the applicant was aware of the importance of the sacrament of matrimony for the Church he decided to enter into a new civil marriage without regularising the situation with regard to his religious marriage with T.F. as provided under the Code of Canon Law (…)

96. It is therefore apparent that the applicant decided to disregard the requirements of special allegiance towards the teachings and doctrine of the Church, concomitant with his status of a teacher (…). He thus brought himself in a situation in which he lost his canonical mandate (…)⁹⁰

There are several other judgments where the Court put emphasis on the nature and gravity of the applicantʼs breach of loyalty.⁹¹ The assessment of how grave the breach of loyalty had been must depend on the circumstances of the specific case. In general, a choice to lead oneʼs life in contravention of central ethical doctrines of the religious community can be regarded as graver than more isolated incidents.⁹²

4.4. The Exposure of the Applicantʼs Situation

One of the explicitly enumerated factors in the Travaš judgment is the exposure of the applicantʼs situation. Other judgments also show that public exposure is of potential importance to the assessment. This is particularly so if the employee has deliberately drawn public attention to their disagreements with the communityʼs doctrines. The Strasbourg Courtʼs perspective appears to be that the more public attention the employee draws to the situation, the more reason the community has to reconsider whether they can continue in a post where they are a representative, in certain ways, for the community and its doctrines.⁹³

At the same time, the Strasbourg jurisprudence shows that this factor is of limited importance compared to several of the other factors, such as the nature of the applicantʼs post. The Court has made it clear that if the breach of loyalty, in light of the nature of the post, gives the religious community reason to question the employeeʼs eligibility for the post, then a lack of publicity does not mean that the community cannot dismiss him.⁹⁴ Thus, the exposure of the applicantʼs situation can play a role as one of several factors of relevance to the proportionality assessment, but other factors will typically be of greater weight.

4.5. The Consequences for the Applicant

Yet another factor highlighted by the ECtHR in its Travaš judgment is the severity of the sanction. The more severe the sanction against the employee is, the more strongly must the religious communityʼs interests have been affected by the employeeʼs conduct. Dismissal can be, in important respects, regarded as the ultimate sanction at the religious communityʼs disposal. In order to justify such a sanction, the community should explain why it would be damaging to its credibility ʻregarding the binding nature of its religious and moral preceptsʼ if the employment relationship is not terminated.⁹⁵

An additional question in this regard is whether the wider consequences for the employee of a dismissal are relevant to the proportionality assessment. Such consequences may not be within the control of the religious community. The case law nevertheless shows that it may be of some relevance to the overall assessment how detrimental a dismissal, in the circumstances, will be to the employee.

The Schüth judgment is illustrative of the importance also of this factor. As indicated above, the judgment concerned the dismissal, on account of marriage infidelity, of the organist in a Catholic parish church. The ECtHR placed some weight on the fact that, due to the applicantʼs ʻspecific qualificationsʼ, it would be ʻdifficult, or even impossibleʼ for him ʻto find a new job outside the Churchʼ. More generally, the Court stressed that ʻthe fact that an employee who has been dismissed by a Church has limited opportunities of finding another job is of particular importanceʼ. That the national courts had not taken such circumstances explicitly into account was regarded as a deficiency, which contributed to the finding that there had been a violation of the applicantʼs Article 8 rights.⁹⁶

Conversely, in the Siebenhaar judgment, the applicant had been employed at the kindergarten for only a brief period of time, and was young, so presumably had good opportunities to find other work. These circumstances were referred to as arguments in favour of the religious community.⁹⁷

As a continuation of the above considerations, a further and important question is whether, and in what ways, the specific consequences for the employeeʼs fundamental rights can impact the concrete proportionality assessment in religious employment cases. The Sindicatul judgment of 2013 provides an example of the ECtHR placing weight on this factor. The main question in this judgment was whether the stateʼs refusal to register the applicantsʼ trade union had been a proportionate interference with their right to form and to join a trade union pursuant to Article 11 ECHR. The national authorities had refused to register the trade union in order to protect the right to autonomy of the Romanian Orthodox Church, as the applicants were members of the clergy of this church and their application for registration ʻdid not satisfy the requirements of the Churchʼs Statute because its members had not complied with the special procedure in place for setting up an associationʼ.⁹⁸ The Strasbourg Courtʼs Grand Chamber found that there had been no violation of Article 11 ECHR.⁹⁹ In this regard, the Court highlighted, as one factor, that ʻthe Statute of the Roman Orthodox Church does not provide for an absolute ban on members of its clergy forming trade unionsʼ, and that there were already similar associations within this church that the applicants could join.¹⁰⁰ The refusal to register the trade union thus did not completely deprive the applicants of their right to form and to join such associations.

Conversely, in the Schüth judgment, which, as noted above, concerned the dismissal of a parish organist on account of marriage infidelity, the Court found that the national courts had ʻfailed to weigh the rights of the applicant against those of the employing Church in a manner compatible with the Conventionʼ.¹⁰¹ The national courts had not put emphasis on the consequences of the dismissal for the applicantʼs right to respect for his private and family life pursuant to Article 8 ECHR.¹⁰²

The reasoning in this and other judgments gives occasion to highlight a few points of general significance in this respect. First, if an employee is sanctioned on account of their private or family circumstances, then the dismissal is to be regarded as affecting the employeeʼs interest in respect of their right to private and family life, not only as affecting their interest in being employed.¹⁰³ The same type of considerations must apply in respect of other fundamental rights.¹⁰⁴

Second, when considering whether the restriction of the employeeʼs fundamental rights by the religious community was justifiable, it may be of some relevance how extraordinary or peculiar the communityʼs requirements appear to be, both compared to other religions and religious communities, and in light of the moral values that are prevalent in the wider legal and societal order. In the Obst judgment of 2010, which, as noted above, concerned the dismissal of a religious leader on account of marriage infidelity, the ECtHR approved of the national courtʼs emphasis on the fact that marriage fidelity is an important value to many religions and religious communities, and that such fidelity could be regarded as an important value also pursuant to the German constitution.¹⁰⁵

It can be questioned whether such reasoning is consonant with the Courtʼs consistent view that, ʻbut for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimateʼ.¹⁰⁶ In light of this fundamental tenet, it can appear questionable that judicial authorities, in connection with religious employment cases, evaluate how peculiar or problematic the religious and moral doctrines at issue are.

Yet, when it comes to the concrete proportionality assessment in such cases, the national authorities are to be given a wide margin of appreciation, as noted in section 3.4 above. If the religious communityʼs doctrines lead to a restriction of specific employeesʼ fundamental rights, it can be claimed to be within the stateʼs margin of appreciation to put some emphasis on how peculiar or problematic the doctrines at issue appear to be. It can be argued that the employee has a stronger interest in not being sanctioned for a breach of doctrines which are very peculiar, than for the breach of doctrines which are grounded in values that saturate either other religious communities or society at large, or both.

It can, therefore, be regarded as justifiable that the peculiarity of the religious doctrines at issue is of some relevance, particularly when the sanction strongly affects core aspects of one or more fundamental rights. Judicial authorities should be hesitant, however, to put great emphasis on such considerations, in order not to undermine the fundamental tenet that it is not up to the State to evaluate the legitimacy of various religious beliefs.

Third, a religious community will, in general, have a wider leeway to sanction explicit opposition to its doctrines, in the form, for example, of public utterances, than to sanction the employee for how they conduct their private life. It is illustrative that the ECtHR, in its Schüth judgment, stated that the applicant ʻdid not appear to have challenged the stances of the Catholic Church, but rather to have failed to observe them in practiceʼ.¹⁰⁷ This does not mean, however, that a religious community generally cannot sanction an employee for their private conduct. It is borne out by several Court judgments that a religious community can do so under many circumstances.¹⁰⁸ It does mean that the religious community must give a convincing explanation for why the employeeʼs private conduct is incompatible with the post, even if they have not publicly opposed the communityʼs doctrines.

It must be underscored that it is challenging, in light of the case law and in light of the societal developments in many CoE member states, to fully get to grips with exactly how protection of the employeeʼs fundamental rights is to be balanced against the right of the religious community to autonomy. This is perhaps particularly so when it comes to the relationship between religious communitiesʼ moral doctrines regarding marriage and sexual conduct, and the widespread expectation, in our day, that oneʼs sexual orientation and oneʼs decisions on private matters cannot justifiably be condemned or sanctioned, nor lead to a difference of treatment.

It is illustrative that in the Fernández Martínez judgment, Judge Dedov, in his dissenting opinion, argued that the Catholic Church should, in effect, be prohibited from requiring its clergy to live in celibacy ʻas the celibacy rule contradicts the idea of fundamental human rightsʼ.¹⁰⁹ Furthermore, there are authors who have argued that religious communities, irrespective of their moral doctrines regarding sexual conduct, should not be allowed to treat persons differently on the basis that homosexual acts, for example, are regarded as ʻsinfulʼ.¹¹⁰ The same has been argued with regard to religious doctrines which stipulate that certain religious positions are reserved for men.¹¹¹ The protection of various groupsʼ right not to be discriminated against in connection with employment is then regarded as more important than respect for religious communitiesʼ autonomy and their corresponding right to organise their activities in accordance with their religious and moral precepts.¹¹²

As a matter of practical realities, such viewpoints can be regarded as a call for the public authorities to confront and suppress specific religious and moral doctrines, including doctrines that appear to be rather widespread among the major world religions, such as opposition to same-sex marriage,¹¹³ or that not all religious positions and functions are open to both sexes.¹¹⁴ It is illustrative that in the largest religious community in the world, the Roman Catholic Church (1.2 billion members), the official doctrines stipulate that clerical positions are only for men¹¹⁵ and that homosexual acts are morally wrong.¹¹⁶

Equality considerations can be said to underpin the call for such a confrontation. However, as highlighted above, the ECtHR has stressed that the State should not, ʻbut for very exceptional casesʼ, evaluate the legitimacy of religious beliefs. As shown above, conservative views on questions of marriage and sexuality, as well as on the question of who is eligible for ordination into the clergy are not as yet really exceptional among religious communities. It therefore appears questionable if the State in effect evaluates the legitimacy of such beliefs by prohibiting religious communities to make employment decisions on the basis of them, at least as long as the religious community does not engage in speech that incites to hatred and violence towards certain groups,¹¹⁷ or advocates for a violent change in the Stateʼs constitutional foundations.¹¹⁸

This is substantiated by several of the Strasbourg Courtʼs judgments in religious employment cases. Several of these show that the religious community is entitled to its own doctrines when it comes to marriage issues, and to require loyalty to such doctrines from its employees if this appears relevant in light of the nature of the post. The case law gives examples that a religious community could dismiss employees who had violated religious rules regarding marriage fidelity (Obst), celibacy (Fernández Martínez) and remarriage (Travaš).

It should be added, however, that a religious communityʼs right to organise its activities in accordance with doctrines that may appear controversial or questionable on the basis of equality considerations, is strongest in a typically religious context, or in connection with activities that are essential to the communityʼs proclamatory mission, such as education.¹¹⁹

4.6. The Stateʼs Responsibility as an Employer

One of the factors highlighted by the Travaš judgment is the stateʼs responsibility as an employer. This factor is of relevance if the public authorities themselves employed the applicant, and then sanctioned the applicantʼs conduct, in order to follow up a special arrangement according to which the public authorities and one or several religious communities cooperate with regard to a specific service.

The prime example is that the public school system offers pupils religious education in accordance with each pupilʼs (or the parentsʼ) religious affiliation, and the religious education teachers, while formally employed by the state, must be approved by the respective religious communities.¹²⁰ For the purpose of the following discussion, I will refer to such arrangements as religious education arrangements.

The Strasbourg Court has not found that such arrangements in themselves are questionable pursuant to the ECHR, nor that they ʻaffect the duty of loyalty imposed (…) vis-à-vis the respective religious communityʼ. The Court has, in this regard, referred to the ʻfact that, in the majority of Council of Europe member States, the Churches and religious communities concerned have a power of co-decision (…) in the appointment and dismissal of religious-education teachersʼ.¹²¹ The forbearance shown by the Court in respect of such arrangements, is linked to the ʻmargin of appreciationʼ given to the contracting states when it comes the relationship between the State and religious communities.¹²²

It can be added that the United Nations Human Rights Committee (HRC) has approached religious education arrangements in a similar manner,¹²³ under the International Covenant on Civil and Political Rights (ICCPR).¹²⁴

The fact that the public authorities formally sanction the employee for conduct that contradicts religious doctrines, in order to safeguard the autonomy of a religious community, is anyway of some relevance to the proportionality assessment. The main point in the ECHR context appears to be that while the State may have to respect the withdrawal of the religious mandate by the religious community, with the consequence that the employee can no longer fill the position of religious education teacher, the employee should not automatically be dismissed. The public authorities should examine whether there are alternative tasks or posts for the applicant at the same educational institution. Alternatively, the authorities should assist or compensate the employee in some other way.

The Travaš judgment illustrates these points, as the ECtHR here ʻattaches particular importance to the fact that the applicant was not dismissed directly following the withdrawal of his canonical mandateʼ.¹²⁵ In this judgment, the stateʼs responsibility as an employer was regarded as particularly important because the reason for the withdrawal of the canonical mandate was that the applicant had made personal decisions that conflicted with the doctrines of the religious community, but at the same time constituted a core expression of his rights as guaranteed by the ECHR (Articles 12 and 8).¹²⁶

It can be asked whether the ECtHR, in cases concerning religious education arrangements, has put insufficient emphasis on the stateʼs responsibility as employer and as the provider of public education, and, consequently, on the importance of principles of equality and non-discrimination in this particular context. That the Courtʼs approach to such cases can be questioned is evinced by the 9–8 vote in the respondent stateʼs favour in the Fernández Martínez Grand Chamber judgment. Several of the dissenting judges considered that the majority did not put sufficient weight on the stateʼs responsibility as the applicantʼs employer, and its duty ʻto make sure that the secular reaction to the Bishopʼs decision was adapted to the applicantʼs situation and in particular that it did not interfere disproportionately with his right to respect for his private and family life.ʼ¹²⁷

Furthermore, it is of interest that the Inter-American Court of Human Rights (IAC) has, in its recent Pavez Pavez v Chile judgment concerning the rights to privacy and work pursuant to the American Convention on Human Rights (ACHR),¹²⁸ taken a much stricter approach than the Strasbourg Court to the stateʼs responsibility as an employer in the case of religious education arrangements. The Pavez Pavez judgment concerned an employee at a Chilean public high school who had been a Catholic religion teacher. Pursuant to Chilean legislation, religious education teachers had to be in possession of a certificate of suitability granted by the corresponding religious authority. In Pavez Pavez, the teacherʼs certificate had been revoked by the Catholic church authorities on account of the revelation that she was ʻliving publicly as a lesbianʼ. Because of the revocation, she was prevented from continuing to teach Catholic religion classes. Instead, the high school appointed her to the position of inspector general at the school, which was regarded as a promotion.¹²⁹

The teacher anyway alleged that the revocation of the certificate and her removal from the post of religion teacher had violated her fundamental rights. The IAC found that, ʻdue to the discriminatory treatment she had sufferedʼ on account of her sexual orientation, several of her rights pursuant to the ACHR had been violated by the Chilean state.¹³⁰ The treatment was not justified by ʻthe advantages obtained in terms of protecting religious freedomʼ. It was not proportionate in the strict sense. The teacherʼs rights to privacy and work had, therefore, not been respected ʻwithout discriminationʼ pursuant to Article 1(1) ACHR.¹³¹

There are several aspects of the IACʼs reasoning that appears to differentiate its approach from the ECtHRʼs approach in its cases concerning religious education arrangements.

First, the way the IAC saw it, the church authoritiesʼ decision to revoke the certificate is itself regarded as a kind of exercise of public authority, for which the State must take responsibility, as the State had chosen to delegate this power in respect of public education to the church authorities. The decision of revocation should therefore itself respect the rights enshrined in the ACHR, the right to non-discrimination on account of sexual orientation included. The decision should also be subject to judicial review.¹³²

Second, the religious communityʼs right to autonomy was regarded to be of limited significance in the circumstances of the case, namely, that the case concerned the area of education in public establishments. The IAC considered that in this context, the right of employees and other actors not to be discriminated against on account of a protected characteristic, such as sexual orientation, must take precedence over religious communitiesʼ interest in loyalty to its creed from religious education teachers.¹³³ In the IACʼs view, religious classes in the public education context ʻare not within the scope of religious freedom that should be free from any interference by the State, since they are not specifically related to religious beliefs or to the organisational life of the communitiesʼ.¹³⁴ That the teacher had knowingly decided to live her life in contravention of the doctrines of the Catholic Church did not appear to be seen as relevant by the IAC either, which contrasts with the Strasbourg Courtʼs approach in its judgments concerning religious education arrangements.

Third, the IAC, in contrast to the Strasbourg Courtʼs Travaš judgment, where the State was given credit for having examined the possibility of finding another suitable post, and for having paid an indemnity, did not place much importance on the fact that the public authorities had attempted to rectify the restriction of the teacherʼs rights by promoting her and giving her alternative job tasks. The IAC appeared to regard the teacherʼs right not to be treated differently on account of her sexual orientation as close to absolute in the public education context. Thus, her reassignment was regarded as discriminatory treatment, compensatory measures notwithstanding.¹³⁵

It should be regarded as questionable that the IAC regarded the issuance and revocation of a certificate of suitability to teach a specific religious creed in public schools as decisions that did not really concern a religious communityʼs organisational life, or its religious beliefs, with the consequence that the communityʼs right to autonomy was regarded as close to unimportant in the circumstances. The essence of the arrangement at issue in Pavez Pavez was that religious classes in the public schools were optional and that the pupils or their parents could decide for themselves which religious creed to be taught. When religious communities and public authorities cooperate on the basis of such principles, as a way to implement the parentsʼ right, pursuant to Article 12(4) ACHR, to provide for their childrenʼsʼ religious education, it appears strained to regard the approval of religious education teachers as anything else than an integral part of the organisational and religious life of the respective religious community.

It cannot be ruled out that the IACʼs reasoning, along with other considerations, will have an impact on the Strasbourg Courtʼs approach to religious education arrangements, and that this approach will become stricter. In view of the above considerations, the Strasbourg Court should not, however, adopt the same approach as the IAC, which would entail that the autonomy of religious communities were regarded as close to unimportant in such contexts.

4.7. The Review of the National Courts

The last of the generally relevant factors highlighted by the ECtHR in its Travaš judgment is ʻthe review of the domestic courtsʼ. This factor is of a procedural nature, as distinct from the factors discussed above, which were of a substantive nature. It is from the perspective of the Strasbourg Court that the review of the domestic, or national, courts is of importance as a factor. For the national courts themselves, the task is to conduct a proportionality assessment that takes the various substantive factors into account so that the Strasbourg Court can afterwards conclude that the review conducted by the national courts was satisfactory. In this way, the substantive and procedural factors are interlinked.

The question then becomes how the Strasbourg Court approaches the evaluation of how satisfactory the national courtʼs review was. A few points should be highlighted in this regard. First, it is a common feature of proportionality assessments pursuant to Articles 8 to 11 ECHR that the Court has focused, to a greater or lesser degree, on the fairness of the national decision-making procedures and on how convincing the national courtsʼ reasoning was – that is,¹³⁶ whether ʻthe reasons adduced (…) to justifyʼ the interference with the right at issue were ʻrelevant and sufficientʼ.¹³⁷ The Court will therefore focus both on how well the applicantʼs interests were represented in the national decision-making procedure, and on the quality of the reasoning of the national decision-making bodies. It is the decision-making procedure as a whole that must be satisfactory. As regards the quality of the reasoning of the national decision-making body, the focus will typically be on the final court decision at the national level. This decision may, however, to a greater or lesser extent refer to lower courtsʼ or administrative bodiesʼ reasoning. Thus, several judgments or decisions may have to be read in light of each other.¹³⁸

Second, when the Court has considered whether the reasons adduced by the national court in a religious employment case were ʻrelevant and sufficientʼ, the focus has been on how well the national court decision reflects the fundamental principles and guidelines for the proportionality assessment that can be derived from Strasbourg jurisprudence. This includes an evaluation of whether the national court appears to have put emphasis on those substantive factors that, according to Strasbourg jurisprudence, are of particular relevance in religious employment cases. This is illustrated by several ECtHR judgments.¹³⁹

Third, it may, in certain circumstances, be important to the Strasbourg Courtʼs assessment whether the national courts had put sufficient emphasis on alleged shortcomings of the decision-making procedures of either the national administrative authorities, or of the religious community itself. Both points are illustrated by the Lombardi Vallauri judgment of 2009. The applicant had been employed as a teacher of a specific course (philosophy of law) at a Catholic University in Milan and had for more than 20 years seen his contract renewed, on a year-on-year basis. In 1998, however, his contract was not renewed for the following academic year. The reason was that the Congregation for Catholic Education, an organ of the Holy See, had informed the leadership of the University that the applicant held views that contradicted Catholic doctrine. He should therefore not continue to teach the course at issue to the students at the University.¹⁴⁰

The national courts did not annul the Universityʼs decision not to renew the applicantʼs contract.¹⁴¹ The applicant complained to the Strasbourg Court and alleged that his right to freedom of expression pursuant to Article 10 ECHR had been violated on account of the Universityʼs refusal to renew his contract, and the national courtʼs failure to annul the Universityʼs decision.¹⁴²

The Strasbourg Court considered that the refusal to renew the contract constituted an interference with the applicantʼs right under Article 10 ECHR to freedom of expression, including his right, as a university teacher, to academic freedom, as the University was governed by public law. At the same time, the proportionality of the interference would depend on a weighing of the applicantʼs right to freedom of expression against the Catholic Universityʼs interest in providing an education in conformity with the doctrines of the Catholic Church, as there were strong links between the University and the Catholic Church.¹⁴³

The Strasbourg Court found that there had been a violation of the applicantʼs rights under Article 10 ECHR. In this regard, the Court highlighted various procedural deficiencies, both the decision-making procedure before the Universityʼs faculty council and certain features of the decision of the Holy See on the applicantʼs accreditation. The faculty council had not explained clearly to the applicant exactly what opinions he held that were regarded as unacceptable, nor how these were presumed to be reflected in his teaching. The faculty council had only referred to the refusal of accreditation by the Holy See, but the content of this refusal had not been disclosed to the applicant.¹⁴⁴ The national court decisions, for their part, did not emphasise these deficiencies of the procedures of the administrative and clerical authorities.¹⁴⁵ Altogether, the applicant had not been provided with the requisite protection of his interests before the national decision-making bodies. Article 10 ECHR had therefore been violated, the Universityʼs interest in providing a Catholic-inspired education notwithstanding.¹⁴⁶

We thus see that the national court, as part of its review of the religious communityʼs decision to sanction the employee, may be required to evaluate the fairness of the communityʼs procedures in this regard, including what information the employee had been given and whether they had been given the opportunity to explain themselves.¹⁴⁷