The separation of church and state meets EU non-discrimination law: An analysis of the JB case

This article analyses the European Court of Justice's judgment in JB and its implications for the relationship between religious autonomy and EU non-discrimination law. Building on Egenberger and IR/JQ , it considers how Article 4(2) of Directive 2000/78 requires religious occupational requirements to be genuine, legitimate and justified, subject to effective judicial review and proportionality. The article argues that JB reinforces this proportionality approach, notably by distinguishing between loyalty to the employing organisation and loyalty to the wider religious community. It then assesses the Dutch blanket exemption of the clergy from non-discrimination law. It concludes that a blanket exemption is incompatible with EU law, but that abolition is neither necessary nor desirable. Instead, the exemption should be recast around a proportionality assessment, protecting the individual's right to non-discrimination, while allowing religious organisations to define their ethos.