Ronan McCrea, Professor of Constitutional and European Law, University College
London
After many years
with no rulings on the interpretation of the provisions of Directive 2000/78 in
relation to discrimination on grounds of religion or belief, the Court of
Justice has now issued no fewer than five major decisions in the last two
years, all five decided by the Grand Chamber.
The most recent
case consisted of a reference
to the Court of Justice from the Austrian Oberster Gerichtshof (Supreme Court).
It involved a challenge to Austrian labour legislation which classified Good
Friday as a public holiday for members of three small Christian minority
churches (the Evangelical Churches of the Augsburg and Helvetic Confessions,
the Old Catholic Church and the United Methodist Church).
The effect of
this legislation was that members of these churches were entitled to a paid
holiday on Good Friday or to additional holiday pay if they worked on that day.
Good Friday was not considered to be a public holiday for those who are not
members of these churches.
Markus Achatzi,
who is not a member of any of these churches, claimed that his employer (a
private detective agency) discriminated against him by denying him additional
holiday pay when he carried out work for them on Good Friday 2015. The sum
involved (€109.09) is rather small, particularly in the light of the costs that
must have accrued in the course of litigation all the way to the Austrian
Supreme Court and a reference to the CJEU, but the case raised an interesting
point. Can a measure intended to benefit adherents to a minority faith amount
to illegal direct discrimination against those who are not members of that
minority?
The Court of
Justice held that the Austrian legislation did violate the prohibition on
discrimination on grounds of religion or belief in Directive
2000/78 which implements the general principle against discrimination seen
in Article 21 of the EU Charter of Fundamental Rights.
In doing so it
dismissed the preliminary argument of the Polish government which had argued
that Court lacked jurisdiction to rule on the issue of the grant of a public
holiday for the celebration of a religious festival because of the commitment
in Article
17(1) TFEU that the Union ‘respects and does not prejudice the status under
national law of churches and religious associations or communities in the
Member States’.
The Court
continued the narrow approach to Article 17 it took in Egenberger (discussed here)
and IR (discussed here)
the Court where it held that Article 17 merely expressed the neutrality of the
Union in relation to the different ways in which the Member States organize
their relations with churches and religious bodies and did not provide a wider
exemption to all matters relating to religion or religious bodies from review
for their compliance with EU norms. The Court therefore concluded that it had
jurisdiction to rule in this case because ‘the national provisions at issue I
the main proceedings do not seek to organize the relations between a Member
State and churches, but seek only to give employees who are members of certain
churches an additional public holiday to coincide with an important religious
festival for those churches’.
On the
substance, the Grand Chamber ruled that by granting a holiday only to members
of certain churches, Austrian law did establish a difference of treatment on
grounds of religion. It rejected the argument of the Austrian authorities that
such a difference of treatment could be justified by the importance of Good
Friday to those religious communities, noting that the privilege was not
subject to any condition that the employee must carry out a religious duty on
that day meaning that members of the privileged churches were no different from
a non-religious employee who wanted to take the day off on Good Friday. Furthermore,
the Austrian legislation provided a right to holiday pay which applied even if
the member of the privileged churches worked on Good Friday without feeling any
obligation to celebrate it as a religious festival. All of these factors led
the court to conclude that the legislation in question was directly
discriminatory on grounds of religion.
The Court then
considered whether this direct discrimination could be justified either by
Article 2(5) of the directive
(which states that the directive is ‘without prejudice to measures laid down by
national law which, in a democratic society are necessary [….]for the
protection of the rights and freedoms of others’) or Article 7(1) of the directive
which allows for measures which as the Court noted, ‘although discriminatory in
appearance are in fact intended to eliminate or reduce actual instances of
inequality which may exist in society’.
In relation to
Article 2(5) the Court held that, as an exception to the principle of equal
treatment, it must be interpreted strictly. It rejected the argument that the
Austrian law could be seen as necessary to protect freedom of religion and
belief, noting that under Austrian law, employees of other religions who seek
time off to celebrate a religious festival are only entitled to the time off
necessary to perform religious rites, and not to an entire day off as in the
case of members of the privileged churches.
In relation to
Article 7(1) the Court held that Article 7 permits only proportionate measures
to be taken to compensate for actual inequality. The Austrian legislation it
decided was disproportionate as it went beyond the need to allow members of the
churches in question to carry out any religious obligations on Good Friday as
it provides an entire twenty four hour rest period for such members while only
giving adherents to other faiths the time necessary to carry out religious
rites.
With the finding
of fault with the Austrian legislation, two further issues then presented
themselves to the Court. First, because the case consisted of a dispute between
two private parties in an area of law governed by a directive, the Court had to
address the question of horizontal direct effect of directives. It also had to
decide whether, in circumstances where national law is found to have accorded a
privilege to one religious group in a way that constitutes unjustified
discrimination, the appropriate approach is to ‘level up’ (i.e. grant the
relevant privilege to all) or to ‘level down’ (to remove the privilege from
those who held it).
In relation to
the direct effect issue the Court noted the Marleasing
obligation on national courts to interpret national law, as far as possible, so
as to achieve the objectives of EU law but appeared to accept that in this case
it may not be possible to interpret Austrian law in a manner that is compatible
with the directive. It went on to reiterate its holding in Egenberger
and IR
that Directive 2000/78 merely represents the codification of the general
principle of law prohibiting discrimination that is reflected in Article
21 of the Charter of Fundamental Rights. As general principles of law and
Charter rights are directly effective between individuals, the national court
is obliged to give full effect to those rights in its ruling.
In relation to
the issue of levelling up or down, the Court held that the national court ‘a
national court must set aside any discriminatory provision of national law,
without having to request or await its prior removal by the legislature, and
must apply to members of the disadvantaged group the same arrangements as those
enjoyed by the persons in the other category. That obligation persists
regardless of whether or not the national court has been granted competence
under national law to do so’
The Court noted
that this approach applies ‘only if there is a valid point of reference’ but
found that the provisions granting the right to an extra public holiday to
members of selected churches did constitute such a valid point of reference and
accordingly the national court should recognize Good Friday as a public holiday
for all employees whether or not they are members of those churches. This right
remains in force until such time as the Austrian legislature introduces
legislation that complies with the principle of equal treatment. It is
therefore open to the Austrian Parliament to decide to retain Good Friday as a
public holiday for all employees or, indeed, to ‘level down’ and remove
recognition of Good Friday as a public holiday altogether.
Conclusion
This ruling
reinforces some patterns that had begun to emerge in earlier rulings in
relation to the religion provisions of Directive 2000/78. First, the Court of
Justice takes a narrow view of the scope of the ‘hands off’ provisions of
Article 17 TEU which says that the Union respects the status of churches and
religious bodies under national law. The Court has now found three times that
this provision covers the narrower issue of how states organize their relations
with religious bodies and does not provide a more general exemption from review
for national laws that regulate activities of religious bodies, such as
employment, that fall within the field of application of EU law.
Viewed in the
light of the rulings of the Court in the cases about the prohibition of
religious symbols in the workplace, the ruling in this case underlines the
Court of Justice’s preference for an individualistic view of religion and its
dislike of rules that provide in a blanket fashion advantages or disadvantages
to categories of people identified by their religion. Thus, in Achbita (discussed here),
the Court took an individualistic approach to religion in upholding a general
prohibition on all symbols of religion or philosophical belief in the
workplace, regarding an individual decision to display a symbol of one’s
political or philosophical beliefs as equivalent to a decision to wear a symbol
such as the Islamic headscarf that generally associated with a particular
religion. The Court was accordingly, unwilling to recognize religious
expression as being entitled to greater protection than non-religious
expression. This approach has been criticized for neglecting the communal and
non-belief based elements of religion but it is also in line with the
consistent jurisprudence of the Strasbourg Court which has always seen
religious freedom as primarily a matter of individual belief that applies
equally to the religious and non-religious. This approach has also meant that
the Court of Justice has been unwilling to accommodate rules or actions that
appear to target a particular faith as in Bougnaoui
(discussed here)
where it found a request to an employee that she have ‘no headscarf next time’
was directly discriminatory.
These features
of the Court’s approach are both on display in the Austrian case. The Court was
unwilling to accommodate a law that conferred a blanket privilege on members of
selected religions (and therefore a disadvantage on those not of the privileged
faiths). The Court’s analysis stressed the need for individual equality, noting
a concern that those who wanted to take Good Friday off for non-religious
reasons would not be treated equally.
The fact that
the Court found fault with the breadth of the privilege conferred (it allowed
for the entire day to be taken off while members of other faiths could only get
time off to attend religious ceremonies on their holy days) shows that
privilege granted to religious individuals will need to be tailored to
accommodate the specific additional burdens faced by religious people rather
than conferring broader privileges that others not of the relevant faith could
conceivably benefit from.
This narrow
tailoring of accommodation will struggle to accommodate those who are
culturally of a particular faith but not particularly devout. Given that the
Court criticized the Austrian law for giving a day off to selected religious
minorities without requiring that employees benefitting from the additional
time off attend any religious ceremonies does that mean it would not be
permissible to give extra time off to Muslim workers who, while not devout,
would like to spend Eid with their families even though they never darken the
door of a mosque?
Finally, this
case raises interesting broader questions about the status of historically
privileged religious minorities. It is not uncommon in Europe for long
established and relatively small religious minorities, such as those
benefitting from the Austrian legislation, to have had particular privileges
recognized in national constitutions. This raises issues both because the same
privileges are often not guaranteed to more numerous more recently arrived
religious minorities (usually Islam) but also, as in the case
of the Muslim community of Thrace, when the communal privilege granted clashes
with the individual rights of members of the religious minority (as when the
Strasbourg Court found a violation in respect of the imposition of discriminatory
inheritance rules on Muslim women).
It would seem
that although the EU is committed to respecting Member State autonomy in
religious matters, the individualistic approach of the ECHR and EU law to
religion, including a commitment to give non-religious individuals equal
treatment, is progressively curtailing both blanket privilege for religious
institutions including long established additional protections and rights for
certain religious minorities.
Barnard & Peers: chapter 20
Photo credit: The Friendly Atheist
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