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Home > Workplace > Germany > 2004-09-16 - Federal Labour Court, n. 2 AZR 447/03

2004-09-16 - Federal Labour Court, n. 2 AZR 447/03

Workplace · Germany · Dismissal · Faith-Based Organisation

Termination of an employee’s employment contract due to a second marriage after divorce

Key facts of the case - The question in dispute is whether a church musician is a person in position of power or a person holding public position. Otherwise the termination of the employee’s contract would be invalid. On September 23d, 2010 the European Court of Human Rights (ECHR) decided invalidity of the dismissal (termination of the employment contract) based on violation of article 8 of the Convention.

Main reasoning of the court - The claim has to be rejected by the court. The contract termination is valid. Termination of the employee’s contract does not violate the claimant’s constitutional civil right of free development of the individual / self-fulfillment according to Art 2 I GG (German Constitution) which includes the right to remarry.
Entering a marriage has to be in accord with the Catholic dogma and ethics. Thus Art 5 II GO (Basic Order of Church Service in the Framework of Churchly Employment Relationship) regulates the violation of loyalty (on basis of can. 1085 codex juris canonici – cic) in case of remarriage since the first marriage cannot be divorced but only annulled within the framework of a procedure of annulment.
A Church employer may require compliance with the relevant Church principles from his / her employees as far as this employee is a person in position of power or a person holding public position as a functionary (Funktionsträger). Thus the claimant’s contract termination is valid since he has violated a relevant principle of the Catholic Church by remarrying.

Comment - The question in dispute is whether a church musician is a person in position of power or a person holding public position. Otherwise the termination of the employee’s contract would be invalid. On 23 September 2010 the European Court of Human Rights (ECHR) decided invalidity of the dismissal (termination of the employment contract) based on violation of article 8 of the Convention.