Eleanor Spaventa, Director of the Durham European Law Institute and
Professor of European Law, Law School, Durham University
Ronan McCrea has already provided
a very thoughtful analysis
of the headscarf cases; this contribution seeks to complement that analysis by
focusing on two issues arising from the Achbita
case: first of all, the structural problems with the ruling of the Court, both
in terms of reasoning and for the lack of information provided; secondly, the more
general implications of the ruling for fundamental rights protections and the
notion of minimum harmonization in the EU context.
It might be recalled that in the Achbita case a Muslim woman was
dismissed from her employer for refusing to remove her headscarf, contrary to
the employer’s policy of neutrality, which included a ban on wearing religious
symbols. The case then centred on the interpretation of the framework
discrimination Directive
(2000/78) which prohibits, inter alia, discrimination on grounds of religion.
The Belgian and French Government (which had a direct interest because of the Bougnaoui
case) intervened in favour of the employee,
believing that the discrimination at issue was not justified (Achbita opinion,
para 63). The Court, following the Opinion of AG Kokott, found that the rules
at issue might constitute indirect discrimination; that the employer’s aim to
allegedly maintain neutrality was a legitimate aim as it related to its freedom
to conduct a business as protected by Article 16 Charter. It then indicated
that the policy was proportionate, if applied with some caveats.
The reasoning of the Court – some structural deficiencies
The headscarf cases are of
fundamental importance to the European Union and to all of its citizens, not
only those who practice a non-dominant religion, and as such have been widely
reported even outside of the EU. One might have expected the Court to
engage with a more thorough analysis of the parties’ submissions and of the
issues at stake. Instead, we have two very short rulings with very little
detail. Just to give an important example – in both cases the French and the
Belgian governments sided with the claimants, hence drawing a very important
conceptual limit to the principle of laïcité which is justified, in this view,
because of the very nature of the State and its duty of neutrality, a duty
which cannot be extended to private parties (or if so only exceptionally). This
important distinction is not discussed in the ruling, not are the views of the
governments who would be directly affected by the rulings.
More importantly though, the fact
that the arguments of the parties are not recalled has also more general
consequences: as it has been noted by Bruno De Witte elsewhere,
the fact that no hermeneutic alternative is provided might give the impression
that no hermeneutic alternative is in fact possible, as if legal interpretation
is simply a matter of discovering the true hidden meaning of a written text.
This approach, not uncommon in civil law jurisdiction but more nuanced in
constitutional cases, hides the fact that, especially in cases of
constitutional significance, there is more than one legitimate interpretative
path that could be chosen, which also reflect different policy alternatives.
Interpretation then is also a choice between those different paths: a choice
which is, of course, constrained by the relevant legal system and one that
might be more or less persuasive. The failure
to acknowledge counter-arguments then results in rulings, like the ones here at
issue and many others in sensitive areas, which are not only potentially
unhelpful, but also close the door to more effective scrutiny of the reasons
that lead the Court to follow a given interpretation.
In the same vein, the analysis of
the discriminatory nature of these provisions is rather superficial. In
particular, there is no thought given to the fact that contractual clauses
allegedly protecting a principle of neutrality, might not only have a discriminatory
effect against certain individuals, but might have important inter-sectional
(or multiple) discriminatory effects. In other words, a rule banning religious
symbols might in fact also have a more pronounced effect on people from a
certain ethnic background or a certain gender. Equally disappointing, and in
this writer’s opinion legally flawed, is the approach taken in relation to the
finding of the potentially indirectly discriminatory effects of the rules at
issue. Here, the Court requires the national courts to determine whether the
‘apparently neutral obligation [(not to wear religious symbols)] (…) results in
fact in persons adhering to a particular religion or belief being put at a particular disadvantage.” (para 34,
emphasis added).
There are two issues to be noted
here: first of all, the Court remains silent as to what type of evidence of
indirect discrimination is required, and by whom. In discrimination cases,
burden of proof is crucial. This is recognised by the discrimination directives
at EU level, including Directive 2000/78 which provides that if the claimant
shows direct or indirect discrimination, then it is for the ‘respondent to
prove that there has been no breach of the principle of non-discrimination’
(Article 10(1)). One would have expected then the Court of Justice to instruct
the national court to require the defendants to discharge this duty with a
certain rigour, also by means of statistical analysis of the effect of such
policies on religious minorities. Yet, the Court does not even engage with this
question.
Secondly, and not less important,
the Court seems to imply that a rule that discriminates all religious people
would not be problematic. For instance if, say, Muslims and Orthodox Jews were equally
discriminated against, whilst non-religious persons were unaffected, then,
based on the dicta of the Court, there would be no discrimination. This
interpretation seems restrictive and not supported by the text of the directive
(or the Charter) that refers to discrimination on grounds of religion in general.
In any event, in discrimination cases it is crucial to identify the comparator,
and the Court fails to do so clearly and to support its choice with sound legal
arguments. But, beside these very important structural issues, the Achbita ruling raises other more
technical as well as general issues, as to the extent to which the Court’s
interpretation might affect the Member States’ discretion to provide more
extensive protection that that provided for in the Directive.
Minimum harmonization and fundamental rights
Directive 2000/78 is intended
only to set minimum standards, so that Member States can, if they so wish,
provide for a more extensive protection. Indeed many Member States have done so
by extending either the protected categories of people, or the field of
application of the legislation, or both. In theory then, the Achbita ruling should not be seen as the
last word in relation to the treatment of religious people at work. After all,
if Belgium or France or any other country finds the ruling problematic, it can
simply pass legislation prohibiting private employers from requiring religious
neutrality from its employees, unless of course a specific dress code is
necessary to ensure the health and safety of the worker or the public. Viewed
in this way, and notwithstanding the structural problems identified above, the
ruling seems very sensible: it is agnostic, in that it does not impose either
model on Member States, allowing therefore a degree of variation in a very
sensitive area, something which, as eloquently discussed in McCrea’s post,
might not be a bad thing. After all, this is the same path that has been taken
by the European Court of Human Rights.
However, things are slightly more
complicated in the European Union context. In particular there is nothing in
the ruling to indicate that the Directive sets only minimum standards so that
it would be open to those Member States to go further in protecting people
holding religious beliefs. And, more crucially, the Court, mirroring the
opinion of Advocate General Kokott, refers to the EU Charter of Fundamental
Rights when assessing the legitimacy of the justification put forward by the
employer. In particular, it finds that the business’s wish to ‘project an image
of neutrality (…) relates to the freedom to conduct a business that is recognised
in Article 16 of the Charter and is, in principle, legitimate’.
The reference to the Charter,
which indirectly frames the question as a clash of fundamental rights, is
important because, in the EU context, when the Charter applies it sets the fundamental
rights standard. In simpler terms this means that should a Member State wish to
provide more extensive protection to ensure that employees are not
discriminated on grounds of their religious belief, something that is allowed
under Directive 2000/78, it might be prevented from doing so since, pursuant to
the Achbita ruling, it would infringe
the right to conduct a business as protected by the Charter. In this way, far
from leaving the desired flexibility and discretion to the Member States, the
Court sets the standard – employers have a fundamental right, albeit with some limitations,
to limit the employees’ right not to be discriminated against. One might well
ask then, much as it has been remarked in relation to the Alemo
Herron case, what is the point of minimum harmonization directives if
the upward discretion of the Member States is so curtailed.
Conclusions
The Court of Justice did not have
an easy task in the Achbita case: it
was pretty much a ‘damned if you do, damned if you don’t’ scenario. For sure,
some of us would have liked the balance at issue to be tilted firmly in favour
of religious minorities, especially given the growing evidence of attacks and
discrimination against, particularly, Muslim women. The Court chose a different
path and that is, of course, within its prerogatives. However, the way that
path was trodden upon leaves many open questions both in relation to the way
the result was achieved, and to the many questions it overlooks. What is most
troubling is the implication that the freedom of Member States to provide
greater protection towards minorities may, in principle, be constrained by the
Court’s interpretation of the freedom to conduct a business.
Barnard & Peers: chapter 9,
chapter 20
Photo credit: smallbusiness.co.uk
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