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Home > Workplace > Germany > 2010-11-25 - Federal administrative court, n. 2 C 32/09

2010-11-25 - Federal administrative court, n. 2 C 32/09

Workplace · Germany · Freedom of religion · Religious belonging

Applicability of the German regulation on special vacations to a Jehovah’s witness willing to attend the annual assembly

Key facts of the case - The plaintiff is civil servant. He applied for an extra vacation in order to attend the annual assembly of Jehovah’s Witnesses. He stated that this is the second most important religious festivity of the year. His application was rejected. The plaintiff went through the stages of appeal and now asks the Federal Administrative Court to find that the High Administrative Court of Rhineland-Palatinate violated his rights by holding that § 7 S.1 Nr.7 of the regulation does not give him a right to extra vacation.

Main reasoning of the court - The § 7 S.1 Nr.7 of the regulation foresees three possibilities to be granted extra vacations: either 1. if the civil servant is member of the administrative body of a religious community, if he is to attend the assembly upon the request of the administrative body or 2. if the civil servant wants to participate in the German Catholic Convention or in the Protestant Church Convention. Since the plaintiff did not meet the requirements of the first two possibilities, the Court had to find whether special vacations can only be granted for the two listed events or also for the district assembly of Jehovah’s Witnesses in an analogical application of the norm.
The Court reasoned that the assembly could not be subsumed under the third variant of § 7 S.1 Nr. 7. The wording of the norm is clear and conclusive. The sense of this regulation is not to promote the religious activities of the individual civil servant. The regulation rather aims at ensuring the functioning of the religious communities because of their social impact.
The Court further found that there is no violation of Article 3 Basic Law, the principle of equality before the law. With promoting the functioning of the religious communities, the legislator does not differentiate between Jehovah’s Witnesses and Christians in a disproportionate way.
In addition, there is no violation of the Council Directive 2000/78 EC establishing a general framework for equal treatment in employment and occupation. The Council Directive is directly applicable since the transposition deadline has expired. Yet, the Court did not see discrimination in the sense of Art. 2 IIa of the Council Directive.