The Fragility of Proportionality Review

The latest decision in Egenberger illustrates both the importance of the EU framework for protecting against discrimination on the grounds of religion, and at the same time its fragility. Since the CJEU decision, two German courts have taken turns at assessing the proportionality of the Church’s refusal to employ Ms Egenberger, with different results. The fact that two courts could consider the same facts and reach opposite conclusions without either seeming to have misapplied the law shows how flexible the law can be.