Eleanor Sharpston QC, former CJEU Advocate-General
I
set out below my ‘Shadow Opinion’ [1] in two Grand
Chamber cases which were allocated to me as Advocate General in 2019. As usual,
my team and I worked on them thereafter in order to prepare an Opinion. They
were however delayed and were reallocated to my successor Advocate General
Rantos after my departure from office on 10 September 2020.
By
that stage, the EU taxpayer had already funded a significant amount of initial
‘team Sharpston’ work and thought on the problems highlighted by these two
references. More fundamentally, the issues that they raise about the wearing of
the Islamic headscarf – the ‘hijab’ – are ones that go to the heart of the
question, ‘what kind of a European Union should we be building for the future?’
I have therefore since done what was required to complete this ‘Shadow
Opinion’. [2] I offer it as a
public contribution to the debate that needs to take place, both inside and
outside the Court, on an important and sensitive topic.
(photo
credit: Mizrahilaw.com)
SHADOW OPINION
OF
ELEANOR
SHARPSTON QC
published on 23 March
2021
Case C-804/18
I.X.
v
WABE e. V.
and
Case C-341/19
MH Müller Handels GmbH
v
M.J.
Introduction
1.
These two references from German courts in essence ask the
Court of Justice to explain and clarify its rulings in the two earlier ‘Islamic
veils’ (or ‘Islamic headscarf’) cases: G4S Secure Solutions [3] and ADDH. [4] As in those
cases, the questions referred seek assistance on the interpretation of
Directive 2000/78/EC. [5] They focus on the interpretation of Article 2,
the distinction between direct and indirect discrimination, and the scope for
justification of the latter, in circumstances in which employers implement
so-called ‘policies of neutrality’ which effectively prevent observant Muslim
women from wearing mandated religious apparel (such as the Islamic headscarf)
in the workplace and hence act as a barrier to their (continued) employment.
They also enquire as to the meaning of Article 8 and the possibilities
flowing therefrom for a Member State to maintain additional measures, against
the background of the enhanced protection given to freedom of faith and
conscience as a ‘basic right’ under the German Grundgesetz (‘the Basic Law’). [6]
Legal background
The Treaty on
European Union (‘TEU’)
2.
Article 2 TEU provides:
‘The Union is
founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including
the rights of persons belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail’.
3.
Article 6 TEU states:
‘1. The Union recognises the rights,
freedoms and principles set out in the Charter of Fundamental Rights of the
European Union of 7 December 2000, as adapted at Strasbourg, on 12 December
2007, which shall have the same legal value as the Treaties.
…
3. Fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms
and as they result from the
constitutional traditions common to the Member States, shall constitute general
principles of the Union’s law.’
The Charter of
Fundamental Rights
4.
The first paragraph of Article 10 (‘Freedom of thought,
conscience and religion’) of the Charter of Fundamental Rights of the European
Union (‘the Charter’) corresponds to Article 9 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’
or ‘the ECHR’). [7] It states:
‘Everyone has the right to freedom of
thought, conscience and religion. This right includes freedom to change
religion or belief and freedom, either alone or in community with others and in
public or in private, to manifest religion or belief, in worship, teaching,
practice and observance.’
5.
Interestingly, Article 10 of the Charter omitted to
include a paragraph corresponding to Article 9(2) of the Convention,
describing what limitations may be placed upon the exercise of the rights
guaranteed by Article 10(1). [8]
6.
Article 14 of the Charter states:
‘1.
Everyone has the right to education and to have access to vocational and
continuing training.
…
3.
The freedom to found educational establishments with due respect for democratic
principles and the right of parents to ensure the education and teaching of
their children in conformity with their religious, philosophical and
pedagogical convictions shall be respected, in accordance with the national
laws governing the exercise of such freedom and right.’
7.
Article 16 (‘Freedom to conduct a business’) states:
‘The freedom to
conduct a business in accordance with Union law and national laws and practices
is recognised’.
8.
The first paragraph of Article 21 (‘Non-discrimination’)
states:
‘Any
discrimination based on any ground such as sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other
opinion, membership of a national minority, property, birth, disability, age or
sexual orientation shall be prohibited’.
9.
Article 22 of the Charter records, succinctly, that:
‘The Union shall respect cultural, religious
and linguistic diversity’.
10.
It is worth setting out Article 52 (‘Scope and
interpretation of rights and principles’) in full:
‘1. Any
limitation on the exercise of the rights and freedoms recognised by this
Charter must be provided for by law and respect the essence of those rights and
freedoms. Subject to the principle of proportionality, limitations may be made
only if they are necessary and genuinely meet objectives of general interest
recognised by the Union or the need to protect the rights and freedoms of
others.
2. Rights
recognised by this Charter which are based on the Community Treaties or the
Treaty on European Union shall be exercised under the conditions and within the
limits defined by those Treaties.
3. In
so far as this Charter contains rights which correspond to rights guaranteed by
the Convention for the Protection of Human Rights and Fundamental Freedoms, the
meaning and scope of those rights shall be the same as those laid down by the
said Convention. This provision shall not prevent Union law providing more
extensive protection.
4. In
so far as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be
interpreted in harmony with those traditions.
5. The
provisions of this Charter which contain principles may be implemented by
legislative and executive acts taken by institutions, bodies, offices and
agencies of the Union, and by acts of Member States when they are implementing
Union law, in the exercise of their respective powers. They shall be judicially
cognisable only in the interpretation of such acts and in the ruling on their
legality.
6.
Full account shall be taken of national laws and practices as specified in this
Charter.
7. The
explanations drawn up as a way of providing guidance in the interpretation of
this Charter shall be given due regard by the courts of the Union and of the
Member States.’
11.
It is likewise important to recall Article 53 (‘Level
of protection’):
‘Nothing in this Charter shall be interpreted
as restricting or adversely affecting human rights and fundamental freedoms as
recognised, in their respective fields of application, by Union law and
international law and by international agreements to which the Union, the
Community or all the Member States are party, including the European Convention
for the Protection of Human Rights and Fundamental Freedoms, and by the Member
States’ constitutions.’
Directive 2000/78
12.
The following recitals are pertinent to these cases:
‘…
(11) Discrimination based on religion
or belief, disability, age or sexual orientation may undermine the achievement
of the objectives of the EC Treaty, in particular the attainment of a high
level of employment and social protection, raising the standard of living and
the quality of life, economic and social cohesion and solidarity, and the free
movement of persons.
(12) To this end, any direct or
indirect discrimination based on religion or belief, disability, age or sexual
orientation as regards the areas covered by this Directive should be prohibited
throughout the Community ….
…
(28) This Directive lays down minimum
requirements, thus giving the Member States the option of introducing or
maintaining more favourable provisions. The implementation of this Directive
should not serve to justify any regression in relation to the situation which
already prevails in each Member State.
…
(31) The rules on the burden of proof
must be adapted when there is a prima facie case of discrimination and, for the
principle of equal treatment to be applied effectively, the burden of proof
must shift back to the respondent when evidence of such discrimination is
brought. However, it is not for the respondent to prove that the plaintiff
adheres to a particular religion or belief, has a particular disability, is of
a particular age or has a particular sexual orientation.
…’
13.
Article 1 of the directive explains that ‘The purpose
of this Directive is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual
orientation as regards employment and occupation, with a view to putting into
effect in the Member States the principle of equal treatment’.
14.
Article 2 (‘Concept of discrimination’) then lays down
the basic rules to be applied:
‘1. For the purposes of this Directive,
the “principle of equal treatment” shall mean that there shall be no direct or
indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be
taken to occur where one person is treated less favourably than another is, has
been or would be treated in a comparable situation, on any of the grounds
referred to in Article 1;
(b) indirect discrimination shall be taken
to occur where an apparently neutral provision, criterion or practice would put
persons having a particular religion or belief, a particular disability, a
particular age, or a particular sexual orientation at a particular disadvantage
compared with other persons unless:
(i) that provision, criterion or
practice is objectively justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary, or
(ii) as regards persons with a
particular disability, the employer or any person or organisation to whom this
Directive applies, is obliged, under national legislation, to take appropriate
measures in line with the principles contained in Article 5 in order to
eliminate disadvantages entailed by such provision, criterion or practice.
…’
15.
Article 4 explains that certain occupational
requirements may justify even direct discrimination; and Article 7
likewise exempts certain types of positive action – which by their nature are
discriminatory – from sanction. Neither appear to be directly engaged [9] by the present
proceedings.
16.
Article 8 (‘Minimum requirements’) is of fundamental
importance to the present references. It provides as follows:
‘1. Member States may introduce or
maintain provisions which are more favourable to the protection of the
principle of equal treatment than those laid down in this Directive.
2. The implementation of this Directive
shall under no circumstances constitute grounds for a reduction in the level of
protection against discrimination already afforded by Member States in the
fields covered by this Directive.’
17.
Finally, it is important not to lose sight of Article 10
of Directive 2000/78 (‘Burden of proof’), which provides as follows:
‘1. Member States shall take such
measures as are necessary, in accordance with their national judicial systems,
to ensure that, when persons who consider themselves wronged because the
principle of equal treatment has not been applied to them establish, before a
court or other competent authority, facts from which it may be presumed that
there has been direct or indirect discrimination, it shall be for the
respondent to prove that there has been no breach of the principle of equal
treatment.
2. Paragraph 1
shall not prevent Member States from introducing rules of evidence which are
more favourable to plaintiffs.
…’
The
Basic Law
19.
Article 3 (‘Equality before the law’) states:
‘(1)
All persons shall be equal before the law.
(2) Men and women shall have equal
rights. The State shall promote the actual implementation of equal rights for
women and men and take steps to eliminate disadvantages that now exist.
(3) No person shall be favoured or
disfavoured because of sex, parentage, race, language, homeland and origin,
faith or religious or political opinions. No person shall be disfavoured
because of disability.’
20.
Article 4 (‘Freedom of faith and conscience’) states:
‘(1) Freedom of faith and of conscience
and freedom to profess a religious or philosophical creed shall be inviolable.
(2)
The undisturbed practice of religion shall be guaranteed.
…’
21.
Article 6 (‘Marriage – Family – Children’), so far as
is material, reads as follows:
‘(2) The care and upbringing of
children is the natural right of parents and a duty primarily incumbent upon
them. The State shall watch over them in the performance of this duty.’
22.
Article 7 (‘School system’), so far as is material,
states:
‘(1)
The entire school system shall be under the supervision of the State.
(2) Parents and guardians shall have
the right to decide whether children shall receive religious instruction.
(3) Religious instruction shall form
part of the regular curriculum in State schools, with the exception of
non-denominational schools. Without prejudice to the State’s right of supervision,
religious instruction shall be given in accordance with the tenets of the
religious community concerned. Teachers may not be obliged against their will
to give religious instruction.’
24. Like the
referring court in MH Müller Handels, the national court in WABE
indicates that, according to the case-law of the Bundesverfassungsgericht, to
prohibit the wearing of an Islamic headscarf whilst working in a child day care
centre would constitute serious interference with the affected party’s
fundamental right to freedom of faith and belief. That court has held that the
parents’ right of education under Article 6(2) of the Basic Law and the
negative freedom of faith of schoolchildren pursuant to Article 4(1) thereof
may be relevant in any exercise involving the balancing of rights. However, a
ban on the wearing of any external sign of religious expression would have – in
the case of an educational establishment such as a child day care centre, which
does not form part of the State education system – to be justified on the basis
of a sufficiently specific (German ‘konkret’) risk of disruption to the
peace of the centre and a general requirement of neutrality without reference
to the tasks to be performed is not capable of justifying such an interference
with the rights arising under Article 4(1) of the Basic Law. It nevertheless
appears that an employer’s wish to project an image of neutrality towards his
customers may be legitimate where an economic disadvantage might result from a
failure to pursue such a policy. The referring court expresses its view that
the employer has not sufficiently demonstrated
[10] that that is the situation in the case before it.
The facts and
the questions referred
25.
The Opinion of Advocate General Rantos, delivered on 25 February
2021, [11] sets
out as is customary a detailed description of the factual background of the two
cases. I shall therefore confine myself to highlighting what I see to be important
elements in that factual matrix.
Case C-341/19
MH Müller Handels
26. The appellant (‘MH
Müller Handels’) runs a chain of pharmacies. MJ, who is a practising Muslim,
has worked for the appellant since 2002
as a sales assistant and cashier. She did not initially wear an Islamic
headscarf at work.
27. When MJ
returned from parental leave in 2014, she had commenced wearing an Islamic
headscarf and declined to remove it at her workplace at her employer’s request.
She was then (sequentially) not employed and employed in a different function
for which she was not required to remove her headscarf. On 21 June 2016
she was again asked to remove her headscarf and, when she again refused to do
so, was sent home. In July 2016, she received the instruction to appear in the
workplace ‘without any prominent, large-scale religious, political and other ideological
signs’ [12] (‘the disputed instruction’).
28.
The order for reference records that the appellant’s aim in
giving the disputed instruction is to maintain neutrality within the
undertaking. The intention is, inter alia, to avoid conflicts among employees.
Such problems, attributable to differing religions and cultures, have
apparently occurred in three cases in the past. However, they did not relate to
the wearing of a headscarf or any other religious sign. [13] The order for reference does not suggest that the
promotion of neutrality is a commercial business aim of MH Müller Handels
vis-à-vis its customers.
Case C-804/18
WABE
‘Gender, background, culture, religion
or special needs – we firmly believe that diversity enriches our lives. By
being open and curious, we learn to understand one another and to respect
differences. Since we welcome all children and parents, this creates an
atmosphere in which everyone can feel safe, feel a sense of belonging and can
develop trust. This is the basis for a healthy personal development and
peaceful social interaction.’
30.
In its order for reference, the national court tells us that
in its daily work, the defendant follows the Hamburg recommendation for the
education of children in day care facilities: [14]
‘All child day care facilities have the
task of addressing and explaining fundamental ethical questions as well as
religious and other beliefs as part of the living environment. Child day care
centres therefore provide space for children to consider the essential
questions of joy and sorrow, health and sickness, justice and injustice, guilt
and failure, peace and conflict and with the question of God. They support the
children in expressing feelings and beliefs on these questions. The possibility
of looking at these questions in a curious and inquisitive manner leads to the
consideration of subjects and traditions of the religious and cultural
orientations represented in the group of children. This develops appreciation
and respect for other religions, cultures and beliefs. This consideration
increases the child’s self-understanding and experience of a functioning
society. The children also experience and actively contribute to religiously
rooted festivals in the course of the year. By encountering other religions,
children experience different forms of reflection, faith and spirituality’.
31. IX is employed
by the defendant as a special needs carer. At the start of 2016, whilst she was
on parental leave, the applicant decided to start wearing a hijab (Islamic
headscarf).
‘[the defendant] is non-denominational
and expressly welcomes religious and cultural diversity. In order to guarantee
the children’s individual and free development with regard to religion, belief
and politics, [the defendant’s] employees are required to observe strictly the
requirement of neutrality that applies in respect of parents, children and
other third parties. [The defendant] pursues a policy of political, ideological
and religious neutrality in respect thereof. In this connection, the following
regulations serve as principles for specifically observing the requirement of
neutrality in the workplace:
· Employees
shall not make any political, ideological or religious statements to parents,
children and third parties in the workplace,
· Employees
shall not wear any signs of their political, ideological or religious beliefs
that are visible to parents, children and third parties in the workplace, [[15]]
· Employees
shall not adopt any practices reflecting those beliefs in the workplace when in
the presence of parents, children and third parties’ [[16]]
· …’.
[17]
33. The defendant
has apparently issued an ‘information sheet on the requirement of neutrality’
which answers the question whether the Christian cross, Muslim headscarf or
Jewish kippah (all being treated similarly) may be worn as follows:
‘No, as the children should not be
influenced by the teachers with regard to a religion, this is not permitted.
The deliberate choice of religiously or ideologically determined clothing is
contrary to the requirement of neutrality’.
34. IX returned to
work on 1 June 2018 wearing a hijab, which she refused to remove when requested
to do so. She was thereupon temporarily suspended from work. The order for reference
records that the defendant has subsequently also effected the removal of a
necklace bearing a cross by a female employee; and states that, with the
exception of employees engaged in specialist pedagogical consulting, the
provisions of the requirement of neutrality do not apply to the defendant’s
employees attached to the company headquarters, as these do not have customer
contact.
The questions referred
35. Accordingly,
the Bundesarbeitsgericht (Case C-341/19 MH Müller Handels) and the
Arbeitsgericht Hamburg (Case C-804/18 WABE) have referred the following
questions to the Court for a preliminary
ruling under Article 267 TFEU:
Case C-341/19 MH Müller Handels
(1)
Can established indirect unequal treatment on the ground of
religion within the meaning of Article 2(2)(b) of [Directive 2000/78],
resulting from an internal rule of a private undertaking, be justifiable only
if, according to that rule, it is prohibited to wear any visible sign of
religious, political or other ideological beliefs, and not only such signs as
are prominent and large-scale?
(2)
If Question 1 is answered in the negative:
a.
Is Article 2(2)(b) of [Directive 2000/78] to be interpreted
as meaning that the rights derived from Article 10 of [the Charter] and from
Article 9 of [the Convention] may be taken into account in the examination of
whether established indirect unequal treatment on the ground of religion is
justifiable on the basis of an internal rule of a private undertaking which
prohibits the wearing of prominent, large-scale signs of religious, political
or other ideological beliefs?
b.
Is Article 2(2)(b) of [Directive 2000/78] to be interpreted
as meaning that national rules of constitutional status which protect freedom
of religion may be taken into account as more favourable provisions within the
meaning of Article 8(1) of [Directive 2000/78] in the examination of whether
established indirect unequal treatment on grounds of religion is justifiable on
the basis of an internal rule of a private undertaking which prohibits the
wearing of prominent, large-scale signs of religious, political or other
ideological beliefs?
(3)
If Questions 2(a) and 2(b) are answered in the negative:
In the examination of an instruction
based on an internal rule of a private undertaking which prohibits the wearing
of prominent, large-scale signs of religious, political or other ideological
beliefs, must national rules of constitutional status which protect freedom of
religion be set aside because of primary EU law, even if primary EU law, such
as, for example, Article 16 of [the Charter], recognises national laws and
practices?
Case C-804/18
WABE
(1)
Does a unilateral instruction from the employer prohibiting
the wearing of any visible sign of political, ideological or religious beliefs
constitute direct discrimination on the ground of religion, within the meaning
of Article 2(1) and Article 2(2)(a) of [Directive 2000/78] against employees
who, due to religious covering requirements, follow certain clothing rules?
(2)
Does a unilateral instruction from the employer prohibiting
the wearing of any visible sign of political, ideological or religious beliefs
constitute indirect discrimination on grounds of religion and/or gender, within
the meaning of Article 2(1) and Article 2(2)(b) of [Directive 2000/78], against
a female employee who, due to her Muslim faith, wears a headscarf?
In particular:
(a)
Can discrimination on grounds of religion and/or gender be
justified under [Directive 2000/78] with the employer’s subjective wish to
pursue a policy of political, ideological and religious neutrality even where
the employer thereby seeks to meet the subjective wishes of his customers?
(b)
Do [Directive 2000/78] and/or the fundamental right of
freedom to conduct a business under Article 16 of [the Charter] preclude –
having regard to Article 8(1) of [Directive 2000/78] – a national rule
according to which, in order to protect the fundamental right of freedom of
religion, a ban on religious clothing may be justified not simply on the basis
of an abstract capacity to endanger the neutrality of the employer, but only on
the basis of a sufficiently specific risk, in particular of a specifically
threatened economic disadvantage for the employer or an affected third party? [[18]]
36. Written
observations were lodged in Case C-341/19 MH Müller Handels by that
party and by the employee, MJ, by the Greek, Polish and Swedish Governments and
by the European Commission and in Case C-804/18 WABE by the two
principal parties (IX and WABE), by the Polish and Swedish Governments and by
the Commission. At the hearing on 23 November 2020, counsel attended and were
heard orally in person on behalf of MH Müller Handels, MJ, WABE and the
Commission. Counsel for IX was given authorisation, in the light of the
Covid-19 pandemic, to submit a text which was read out to the Court by the
German interpreters.
Preliminary
remarks
37. It seems to me
essential to set the scene by clarifying what these two references are – and
are not – about.
38. I shall start
by recalling the background of our shared, and not so distant, European
history. The rise to power of the National Socialist Party in Germany during
the 1930s led in very short order to overt and horrifying discrimination on
grounds of race, religion and ethnic origin. That poison was allowed to spread
unchecked. It resulted in the Second World War and the accompanying catalogue
of genocide and crimes against humanity. The focussed and deliberate attempt to
eradicate all Jews from territories under Nazi control – the Shoah – was
accompanied by other, equally deliberate moves to exterminate other despised
racial groups and unwanted minorities (Roma, homosexuals, Communists, Sinti …).
39. Out
of the devastation – the casual killing in the slave labour camps; the ashes of
the industrial-style crematoria of the Konzentrationslager – came, thank
heavens, the collective recognition that we Europeans had to ensure that such
atrocities would never happen again. That is what gave birth to the ‘European
project’. The language of Article 2 TEU, with its express references to common
values of ‘respect for human dignity’ and ‘respect for human rights, including
the rights of persons belonging to minorities’ and to ‘a society in which
pluralism, non-discrimination, tolerance … prevail’, is there to entrench our
collective memory of what went wrong and why we must do better than that in our
shared European future. By the same token, Article 22 of the Charter enjoins
the European Union to ‘respect cultural, religious and linguistic diversity’.
40. Against that
background, Directive 2000/78 seeks to ensure that everyone can access the employment
market under conditions that respect their identity and their dignity. Access
to jobs matters. So does protection from discrimination within employment. Work
is of fundamental importance, both economically and psychologically, for us as
individuals and for our society as a whole. Those who are excluded from the
employment market or ejected from a job that they hold – particularly if that
exclusion takes place for a reason that is central to their identity and that
they cannot or should not be asked to surrender – easily become discouraged,
alienated and embittered. Emotional damage risks being added to financial
hardship and economic vulnerability. To the altruistic reasons for combating
discrimination can be added some hard-nosed practical considerations. Creating
pockets of deprivation and delineating racial or cultural groups that can
readily self-identify as victims easily sets the scene for social unrest and
worse.
41.
I also draw attention to the need to ensure that we do not
inadvertently allow situations to develop in which a particular group (women
who are from ‘other’ racial backgrounds than the white Caucasian European
mainstream and who are observant Muslims) risk finding themselves subject to triple discrimination in the employment
market (on grounds of sex and race and religion). To the extent that there
may – unfortunately – be a degree of latent discrimination in our societies
that perceives certain groups as identifiably ‘other’, it seems to me important
to guard against the risk that, when an employer says that he ‘merely’ wishes
to apply a policy of strict neutrality in his dealings with his clients and his
customers, he may in reality be pandering to that latent discrimination. [19]
43. Where
an act by an employer is classified as direct
discrimination, the available avenues under Directive 2000/78 nevertheless to
justify it are both few in number and construed restrictively. [20] If, where an act is
classified as indirect
discrimination, a relatively lax approach is taken towards scrutinising a possible
justification advanced by the employers, that risks creating a significant gap
in protection: a kind of legal black hole in which acts that escape being
classified as direct discrimination then escape proper scrutiny and are not
sanctioned. Given that the objective of Directive 2000/78 is ‘to lay down a
general framework for combating discrimination’ on any of the listed grounds,
‘with a view to putting into effect in the Member States the principle of equal
treatment’ (Article 1), it is essential to avoid construing the different
forms of discrimination identified in Article 2 in a way that permits such
an outcome. I shall return to this question later. [21]
44.
By the same token, it is important to be clear what these
two cases are not about.
45.
Thus, these references are not about religious employees
proselytising (whether to their employer’s customers or to fellow employees) at
the workplace during their working time. [22] That is not
acceptable conduct at work; and an employer has other, legitimate ways of
sanctioning it. I shall return later to the – delicate – question of how to
assess whether protected religious observance
has crossed the line to become unacceptable religious proselytising. [23]
46.
The same reasoning would apply to using the employer’s time,
for which he is paying the employee to work, for extended discussions on
religion and religious symbolism. That too is unacceptable and that too can be
sanctioned. Again, it will be necessary to revisit this point later in the
specific context of a teaching environment in which the employer’s ‘mission
statement’ advances the proposition that ‘by being open and curious, we learn
to understand one another and to respect differences’ and the employer is
following official guidance that ‘All child day care facilities have the task
of addressing and explaining fundamental ethical questions as well as religious
and other beliefs as part of the living environment’. [24]
47.
Next, the form of religious apparel worn by the observant
Muslim women employees in the cases giving rise to these two references is the
Islamic headscarf, or ‘hijab’. That apparel, whilst covering the woman’s hair,
leaves her face completely visible. We are not
here concerned with any of the more elaborate or voluminous garments (such as
the niqab or the burka) that are sometimes worn in order to respect the Koran’s
dictate that female Muslims should ‘guard their modesty’. [25] Rather, what is at issue is the
wearing of a headscarf. It might therefore be thought that, of the various
possible versions of ‘modest female apparel’, a headscarf is the least
intrusive and thus the most proportionate way of complying with that particular
religious obligation.
48.
The present Covid-19 pandemic necessarily gives rise to a
further observation. During recent months, we have all (perforce) had to adapt
to a ‘new normal’ in which, in many Member States, it is compulsory for people
to protect themselves and others from contagion by wearing masks in shops and
public places. These masks (as we know) have to cover mouth and nose in order
to be worn properly and to be effective. They therefore entirely cover the
lower half of the face: something that conceals facial expression. And
yet – because, unfortunately, we must – we have as a society made the necessary
adjustments in order to go on conducting our lives whilst trying to reduce the
incidence of contagion, hospitalisations, serious illness and deaths by wearing
our masks. In contrast, the hijab is not a veil covering the face. It does not
conceal facial expressions. It is therefore not really plausible to advance the
proposition that a hijab is some kind of impediment to inter-personal
communications in Western society.
49.
Finally, we are looking here at two independent women in the
employment market who – so far as we can tell from the facts as narrated to us
by the referring courts – have both chosen to wear a hijab in compliance with a
specific religious obligation which they accept as binding upon them as
observant and practising Muslims. It is more than likely that, in certain parts
of the Muslim world, the wearing of a hijab, if you are female, is not a
matter of free choice. I do not disregard the reality that there are indeed
situations in which oppressed women in some societies are under extreme
pressure not to venture outside their homes unless they are suitably veiled
(indeed, probably draped from head to foot in concealing garments and
accompanied by a male family member as an escort). It is however important to
keep clearly in mind that, on the facts, that is not the situation with
which the referring courts and the Court are here concerned.
50.
That said, the challenge for the Court posed by the present
references is not to be underestimated.
51.
The factual matrix forms the background to the questions
referred and, as such, has its place and its importance.
52.
Thus, in Case C-341/19 MH
Müller Handels the referring court regards it as an established fact that the disputed instruction results in indirect
unequal treatment on grounds of religion. [26] Since it is
trite law that the national court is the sole judge of fact in the context of a
reference for a preliminary ruling under Article 267 TFEU, [27] the point of departure for the Court’s
analysis must therefore be the fact that the disputed instruction does have an adverse impact on observant
female Muslim employees of the defendant.
53.
Both the undertakings in question are private employers.
There is thus no question of their having any particular mission, entrusted to
them by a public authority, that would require them to observe a policy of
strict neutrality in all aspects (both internal and external) of their
operations. In so saying, I am not speculating on the extent to which – for
example – the constitutional principle of ‘laïcité’
in France might affect where the appropriate balance should be struck between
the respective rights of employer and employee. I merely emphasise that that
specific issue does not fall to be decided here.
54.
The detail of the facts, and the way in which these two cases
should ultimately be decided, is however a matter for the two national courts.
As counsel emphasised at the hearing, what is needed now from the Court is clear guidance for national courts
and for employers, so that the boundaries of the Court’s previous judgment in G4S
Secure Solutions are more sharply delineated. In what circumstances will it
be legitimate for an employer to claim that it ‘operates a policy of strict
neutrality’ bearing in mind the danger (to which I have already adverted) [28] of
allowing this claim to be put forward too readily and too universally.
55.
Those questions fall to be answered within the wider context
of explaining how (and why) the balance should be struck in a particular way
between the two competing fundamental rights here at issue (the employee’s
right to practise his or her religion, on the one hand, and the employer’s
freedom to conduct his business, on the other hand). The way in which those
questions are formulated likewise requires the Court to explain how the
interface between EU law and national constitutional law operates in the specific
context of Article 8 of Directive 2000/78.
56.
In the remainder of this Opinion, I shall proceed as
follows.
57.
First, I shall examine two fundamental issues that go to how
the Court should approach dealing with these two references (‘Two keys to the kingdom’)
and suggest what, in my view, is the correct approach to adopt. Next, I shall offer
some observations (additional to those that I made in my earlier Opinion in ADDH)
about religious expression, religious apparel and religious tolerance. From
there, I move on to survey and comment on the relevant case-law of the European
Court of Human Rights (‘the Strasbourg court’) interpreting the equivalent
provisions of the Convention and the case-law of the Court of Justice. Against
that (very full) background, I shall embark upon my analysis of the issues raised
by the questions referred. Finally, I shall group and re-phrase those questions
and conclude by suggesting how – as I see it – they fall to be answered.
Two keys to the kingdom
58.
Before the Court engages with the issues underpinning the
detailed questions referred by the national courts, there are two conceptual
issues that fall to be addressed.
59.
First, which Charter provision(s) should the Court bear in mind
when approaching the issues raised by these references? Should Directive
2000/78 be read almost in isolation or – at most – in the light of the
prohibition against discrimination contained in Article 21 of the Charter? Or
should the Court also have regard to both Article 10 (freedom of thought,
conscience and religion) and Article 16 (freedom to conduct a business) when
answering the questions referred?
60.
Second, in respect of the particular instrument of EU law
that falls to be interpreted here, namely Directive 2000/78, what is the
interface between EU law and national (constitutional) law? Has everything
already been settled uniformly at EU level, leaving no room for different
national constitutional traditions (what might be termed, in shorthand, the
‘one size now fits all’ approach)? Or is Directive 2000/78, having regard to
its legal base, objective and actual wording, a measure that aims only at
partial harmonisation of the relevant rules, thus leaving scope for slightly
different balances between competing fundamental rights properly and
legitimately to be struck at national level?
61.
The answer that one favours to those two (fundamental)
conceptual issues will condition one’s entire approach to the actual questions
that the Court is invited to answer. They are, if you will, the two ‘keys to
the kingdom’.
Issue 1: which
Charter provision(s) should the Court bear in mind when approaching the issues
raised by these references?
63.
It seems to me, however, that such an approach is both
misconceived and intellectually flawed.
64.
It is misconceived because it is over-simplistic.
65.
Like the Convention, the Charter is an instrument that
delineates a number of individual rights (under the headings of Title I
(‘Dignity’) and Title II (‘Freedoms’)). [29]
Then (under Title III ‘Equality’) we find a more generalised right to equal
treatment. To describe the Charter right to equal treatment as rather a ‘catch
all’ right is not to be disrespectful or to underestimate its importance. But
its drafting is deliberately very broad and generic. Its opening words are,
‘Any discrimination based on any ground such as …’. [30] It
continues with what is therefore a non-exhaustive list of possible grounds for
discrimination. Even within that non-exhaustive list, the draftsman sought further
to extend the protection (thus, ‘political or any other opinion’). [31] Article
21 does not, however, itself define what ‘religion or belief’ means (and
therefore what might constitute discrimination based on ‘religion or belief’).
66. Article 21(1)
of the Charter inevitably invites parallels with Article 14 of the
Convention (that instrument’s generic anti-discrimination provision). Indeed,
the Explanations to the Charter [32] tell us, in respect of Article 21 thereof, that
‘Paragraph 1 draws on Article 13 of the EC Treaty, Article 14 of the
ECHR and Article 11 of the Convention on Human Rights and Biomedicine as
regards genetic heritage. Insofar as this corresponds to Article 14 of the
ECHR, it applies in compliance with it’. The case-law of the Strasbourg court
is peppered with illustrations of instances in which that Court, having
established a violation of one or other of the principal substantive rights
under the Convention, has contented itself with saying that no ‘separate’ issue
arose under Article 14. [33]
67.
I therefore suggest that – as would be the case under the
Convention – the appropriate approach here is to view Article 21 as
complementing, rather than as substituting for, other relevant Charter rights.
68.
I pause here to raise briefly a more general point that may
be obvious, but that still bears to be recorded. Fundamental rights and
freedoms are not self-standing but are, save in the clearest of cases,
interdependent and interrelated. I quote in that regard from paragraph 5
of the Vienna Declaration and Programme of Action:
‘All human
rights are universal, indivisible and interdependent and interrelated. The
international community must treat human rights globally in a fair and equal
manner, on the same footing, and with the same emphasis. …’ [34]
69.
It follows from that that certain rights and freedoms are
best understood as co-existing with one another. Articles 10 and 21 of the
Charter are a clear example of such an interrelationship. The former could be
said to generate the latter. The latter exists to give meaningful effect to the
former. In similar vein, the rights granted under Article 7 (Respect for
private and family life), Article 9 (Right to marry and found a family),
Article 14 (Right to education), Article 24 (The rights of the child)
and Article 25 (The rights of the elderly) are each very closely
interconnected and flow from a desire to ensure that all aspects of family life
are protected. Article 29 (Right to placement services) would have little
meaning in the absence of Article 15 (Freedom to choose an occupation and
right to engage in work).
70.
However, not all fundamental rights exist in such a
convenient state of balance and harmony. They may, in certain circumstances at
least, conflict. When such a conflict arises, some form of reconciliation of
rights must be achieved. There is ample evidence from the case-law of both the
Strasbourg Court and the Court of Justice that a balancing exercise must be
carried out. [35]
For present purposes, the relationship between Articles 10 and 21 of the
Charter, on the one hand, and Article 16 thereof, on the other hand, is
particularly relevant.
71.
The correctness of approaching the present references on the
basis of all three of those Charter articles is borne out by the drafting of
Directive 2000/78 itself.
72.
Thus, the principle of equal treatment as defined in Article 2(1)
of Directive 2000/78 cross-refers to ‘any of the grounds referred to in Article 1’.
Article 1 lists, as the first of the prohibited grounds for discrimination,
‘religion or belief’. But the directive (like Article 21 of the Charter)
does not go further than that in defining what is meant by ‘religion’ or
‘belief’, or in indicating how far either are protected values. Nor, indeed,
does it explain in much detail how the employer’s interests are to be factored
into the equation when construing a directive that weighs employees’ general
right not to suffer discrimination on the basis of a prohibited ground against
the employer’s right, in certain specific circumstances, not to apply
that general principle of equal treatment.
73.
It follows that, to the extent that the Court must
necessarily have regard to the Charter (which is now the primary law catalogue
of fundamental rights under EU law) when interpreting an instrument of EU law
(Directive 2000/78), the Court cannot merely refer to the Charter
principle of equal treatment (Article 21). It must also consider other relevant
Charter principles. Those additional principles necessarily comprise Article 10
(Freedom of thought, conscience and religion), because Directive 2000/78 itself
expressly identified discrimination on grounds of religion or belief as being
discrimination on the basis of a prohibited ground. They likewise, in the light
of the Court’s judgment in G4S Secure Solutions, comprise Article 16
(Freedom to conduct a business).
74.
That also shows why the Commission’s approach is
intellectually flawed.
75.
If the Commission’s analysis were correct, it would
necessarily follow that in reasoning its judgment in G4S Secure Solutions
as it did, the Grand Chamber committed an elementary error. It should never
have strayed away from a ‘pure’ (Article 21) view of discrimination law.
It should never have permitted an employer’s rights under Article 16 to
conduct its business to be brought into any stage of the analysis.
76.
In this respect, the choice is binary. Either you construe
Directive 2000/78 exclusively in the light of Article 21 of the Charter –
but in that case, the Grand Chamber’s reasoning in G4S Secure Solutions
is not merely wrong, it is egregiously wrong. Or you take all relevant rights
under the Charter into account (which seems to me plainly to be the correct
approach to follow) – but in that case, you must necessarily have regard to the
employee’s rights under Article 10 as well as to the employer’s rights
under Article 16. Both those additional rights must be brought into the
exercise, alongside the principle of equal treatment in Article 21; and a
careful balancing exercise must then perforce be conducted. What is not
permissible is to have regard to Article 16 and Article 21, but to
fail to have due regard to Article 10. That statement is all the more true
because – at the risk of stating the obvious – Directive 2000/78 is not a
directive whose objective is to maximise the employer’s freedom to conduct its
business. The objective of Directive 2000/78 is to combat discrimination in
relation to employment on any of the prohibited grounds that it lists.
77.
I do not believe that the Grand Chamber was wrong, in G4S
Secure Solutions, to look at the directive more widely than through the
sole prism of Article 21 of the Charter. However, as the two orders for
reference make clear, there is further work to be done in clarifying and
explaining the ruling in that case.
78.
Indeed, were everything evident from G4S Secure Solutions,
there would have been no need for the present references to have been accorded
the full panoply of Grand Chamber treatment, complete with a hearing and an
Advocate General’s Opinion. The Court could have saved a lot of valuable time
and resources (a particularly important consideration, during the present
Covid-19 pandemic) by allocating them to a chamber of three judges and
disposing of them, without hearing or opinion, by means of a reasoned order
under Article 99 of the Rules of Procedure: [36]
an order that would simply have reiterated and applied G4S Secure Solutions.
79.
From the questions referred by the two German courts,
however, it is evident that there are aspects of the ruling in G4S Secure
Solutions that national courts and employers consider to be unclear or
ambiguous. Other elements may be deemed simply not to be covered by that
judgment as such. The reality is thus that national courts and employers are not
clear what G4S Secure Solutions actually means and the extent to which
it falls to be applied in different factual circumstances. The Court has wisely
recognised this and, for that reason, has joined these two references and
allocated them to the Grand Chamber.
Issue 2: the interface between EU law and national
(constitutional) law
81.
It is trite to observe that each and every EU measure that
is negotiated and agreed upon between the Member States has its own particular
place along a spectrum. That spectrum has, at one extreme, an approach that
takes a very cautious first step forward towards an agreed set of rules at EU
level (‘minimum harmonisation’). [37] In the middle of the
spectrum lie measures that already establish a more detailed set of EU rules
whilst leaving a number of aspects (sometimes, rather important aspects) still
to be determined under national law (‘partial harmonisation’). [38] At the other extreme of the spectrum, an EU measure may lay
down an exhaustive set of rules that cover every aspect (‘total harmonisation’). [39] ‘How far does this measure effect harmonisation of the
rules relating to X?’ is therefore a standard and important question to ask
when approaching the interpretation of any EU measure.
82.
Depending on the degree of harmonisation of the relevant
rules that was effected by the EU measure under consideration, the Grand
Chamber has, indeed, reached contrasting conclusions as to the ‘space’ that
does, or does not, exist for national constitutional law still to play a role.
I am referring here to its judgments in Melloni, [40]
on the one hand, and Åkerberg Fransson, [41]
on the other hand. Åkerberg Fransson was subsequently further confirmed
by M.A.S. and M.B. [42]
(a ruling commonly referred to as ‘Taricco II’, because it expanded
upon and clarified the Court’s judgment in Taricco I). [43]
83.
I must begin by recalling what each of those three earlier
Grand Chamber cases was about.
84.
Melloni concerned a European arrest warrant that had been issued
following a trial in absentia, so that the convicted defendant (Mr
Melloni) should be returned to serve a prison sentence in Italy. Mr Melloni,
who had fled whilst on bail awaiting trial, had meanwhile made his way to
Spain. Having been arrested there, he opposed his surrender under the European
arrest warrant issued against him by the Italian court, invoking infringement of the absolute requirements deriving from the
right to a fair trial proclaimed in Article 24(2) of the Spanish
Constitution.
85.
Article 5(1) of the original version of the
Framework
Decision on the European arrest warrant [44]
would have allowed the Spanish courts to make Mr Melloni’s surrender subject to the condition that the issuing
judicial authority gave an assurance deemed adequate to guarantee that he would
have an opportunity to apply for a retrial of the case in the issuing Member
State. However, Article 5(1) had subsequently been repealed and a new
Article 4a introduced [45]
containing agreed common rules relating to trials in absentia. Did that
amendment preclude the Spanish courts from applying Article 24(2) of the
Spanish Constitution and refusing to execute the European arrest warrant
against Mr Melloni? The Tribunal Constitucional (Constitutional Court,
Spain) duly made a reference to the Court.
86.
In its judgment, the Grand Chamber noted that ‘It is
apparent from wording of Article 4a(1) of
Framework Decision 2002/584 that it provides for an optional ground for
non-execution of a European arrest warrant issued for the purpose of executing
a custodial sentence or a detention order, where the person concerned has not
appeared in person at the trial which resulted in the conviction. That option
is nevertheless accompanied by four exceptions in which the executing judicial
authority may not refuse to execute the European arrest warrant in question.
Article 4a(1) thus precludes, in the four situations set out therein, the
executing judicial authority from making the surrender of a person
convicted in absentia conditional upon the conviction being
open to review in his presence’. [46]
87.
Next, the Court noted that the
object of the amending Framework Decision had been ‘firstly, to repeal
Article 5(1) of Framework Decision 2002/584 … and, secondly, to replace
that provision by Article 4a’. [47]
Furthermore, that was confirmed by the objectives pursued by the EU legislature
in adopting the amending Framework Decision: the EU legislature ‘intended to
facilitate judicial cooperation in criminal matters by improving mutual
recognition of judicial decisions between Member States through harmonisation
of the grounds for non-recognition of decisions rendered following a trial [in
absentia]’. [48]
So, it followed that Article 4a(1) did indeed preclude the executing judicial
authorities, in the circumstances specified in that provision, from making the
execution of a European arrest warrant issued for the purposes of executing a
sentence conditional upon the conviction rendered in absentia being
open to review in the issuing Member State. [49]
88.
The Court next examined the common arrangements
put in place and concluded that Article 4a(1) of Framework Decision
2002/584 was compatible with the requirements under Articles 47 and 48(2) of
the Charter. [50]
89.
Finally, the Court turned to the question whether Article 53 of the Charter must be interpreted as
allowing the executing Member State to make the surrender of a person
convicted in absentia conditional upon the conviction being
open to review in the issuing Member State, in order to avoid an adverse effect
on the right to a fair trial and the rights of the defence guaranteed by its
constitution. The Court declined to interpret Article 53 of the Charter as
a provision that ‘gives general authorisation to a Member State to apply the
standard of protection of fundamental rights guaranteed by its constitution
when that standard is higher than that deriving from the Charter and, where
necessary, to give it priority over the application of provisions of EU law’,
because such an interpretation ‘would undermine the principle of the primacy of
EU law inasmuch as it would allow a Member State to disapply EU legal rules
which are fully in compliance with the Charter where they infringe the
fundamental rights guaranteed by that State’s constitution’. Instead, the Court
placed weight on the argument that ‘allowing a Member State to avail itself of
Article 53 of the Charter to make the surrender of a person
convicted in absentia conditional upon the conviction being
open to review in the issuing Member State, a possibility not provided for
under [the amending Framework Decision], in order to avoid an adverse effect on
the right to a fair trial and the rights of the defence guaranteed by the
constitution of the executing Member State, by casting doubt on the uniformity
of the standard of protection of fundamental rights as defined in that
framework decision, would undermine the principles of mutual trust and
recognition which that decision purports to uphold and would, therefore,
compromise the efficacy of that framework decision’. The Court therefore
concluded that ‘Article 53 of the Charter must be interpreted as not
allowing a Member State to make the surrender of a person convicted in
absentia conditional upon the conviction being open to review in the
issuing Member State, in order to avoid an adverse effect on the right to a
fair trial and the rights of the defence guaranteed by its constitution’. [51]
90.
To my mind, the rationale for the Court’s decision in Melloni
– a decision that was not particularly friendly towards national constitutional
law and that has indeed been criticised by the Court’s counterparts in the
judiciary of national supreme and constitutional courts [52] –
is essentially the following. There, the Member States had agreed an
exhaustive and fully ‘harmonised’ set of rules governing the conditions
under which, notwithstanding the fact that person X had been tried in
absentia, a European arrest warrant could be issued for that person’s
arrest. That being so, there was no remaining scope for national law – even
national constitutional law – to intervene and impose additional conditions.
91.
Melloni may usefully be compared and contrasted with the Court’s
decision in Åkerberg Fransson, which coincidentally was delivered on the
same day.
92.
Åkerberg Fransson concerned proceedings brought by the
Public Prosecutor’s Office for serious tax offences. Mr Åkerberg Fransson
argued that, as he had already paid a tax surcharge to the tax authorities in
respect of the same acts of providing false information as underpinned those
criminal charges, he was protected from further punishment by the principle of ne
bis in idem, as laid down in Article 4 of Protocol No 7 to the
Convention and Article 50 of the Charter.
93.
The Court first explained that ‘Since
the fundamental rights guaranteed by the Charter must … be complied with where
national legislation falls within the scope of European Union law, situations
cannot exist which are covered in that way by European Union law without those
fundamental rights being applicable. The applicability of European Union law
entails applicability of the fundamental rights guaranteed by the
Charter’. [53]
The Court then confirmed that ‘tax penalties
and criminal proceedings for tax evasion, such as those to which the defendant
in the main proceedings has been or is subject because the information
concerning [value added tax] that was provided was false, constitute
implementation of … European Union law, for the purposes of Article 51(1)
of the Charter’. [54]
94.
Against that background, the Grand Chamber proceeded to lay
down the following important principle:
‘… where a
court of a Member State is called upon to review whether fundamental rights are
complied with by a national provision or measure which, in a situation where
action of the Member States is not entirely determined by European Union law,
implements the latter for the purposes of Article 51(1) of the Charter, national
authorities and courts remain free to apply national standards of protection of
fundamental rights, provided that the level of protection provided for by the
Charter, as interpreted by the Court, and the primacy, unity and
effectiveness of European Union law are not thereby compromised (see, in
relation to the latter aspect, Case C‑399/11 Melloni [2013]
ECR, paragraph 60).’ [55]
95.
The Court went on to hold that, if the earlier tax
surcharge was not criminal in nature (a matter which it was for the
national court to determine), the principle of ne bis in idem would not
operate so as to preclude the subsequent proceedings being brought against the
taxpayer. [56]
96.
The Court also made it plain that:
‘… whilst, as
Article 6(3) TEU confirms, fundamental rights recognised by the ECHR
constitute general principles of the European Union’s law and whilst
Article 52(3) of the Charter requires rights contained in the Charter
which correspond to rights guaranteed by the ECHR to be given the same meaning
and scope as those laid down by the ECHR, the latter does not constitute, as
long as the European Union has not acceded to it, a legal instrument which has
been formally incorporated into European Union law. Consequently, European
Union law does not govern the relations between the ECHR and the legal systems
of the Member States, nor does it determine the conclusions to be drawn by a
national court … [in that particular case, in the event of conflict between the
rights guaranteed by that convention and a rule of national law]’ [57]
97.
Finally, the Court also reaffirmed the importance that it
attaches to fundamental rights guaranteed by the Charter, explaining that:
‘… European
Union law precludes a judicial practice which makes the obligation for a
national court to disapply any provision contrary to a fundamental right
guaranteed by the Charter conditional upon that infringement being clear from
the text of the Charter or the case-law relating to it, since it withholds from
the national court the power to assess fully, with, as the case may be, the
cooperation of the Court of Justice, whether that provision is compatible with
the Charter’. [58]
98.
The approach taken in Åkerberg Fransson was expressly
cited, approved and applied in Taricco II. That case also provides
a useful illustration of the Grand Chamber, in a second judgment (Taricco II),
amplifying and clarifying a ruling it had only recently handed down in a
previous Grand Chamber judgment (Taricco I). That is exactly the
exercise that is now required of the Grand Chamber by the present two
references.
99.
In Taricco I the Court had handed down an
uncompromising ruling, emphasising the obligation on the Member States to
counter illegal activities affecting the financial interests of the European
Union through effective and deterrent measures. However, concerns were raised
as to the implications of that ruling for the fundamental right that prohibits
the retroactive application of criminal legislation – a right protected under
both Article 25 of the Italian Constitution and Article 7(1) of the
Convention. Accordingly, the Corte costituzionale (Constitutional Court) of the
Italian Republic made a further reference to the Court in what became known as Taricco II.
100.
The Grand Chamber expressly announced that it was going to
revisit Taricco I, because matters had been drawn to its attention
that had not been canvassed in that reference. [59] It first upheld the principles as to the
effective application of the VAT rules that it had laid down in Taricco I. [60] The Grand Chamber then pointed out, however,
that:
‘44 In the present case, at the material time for the main
proceedings, the limitation rules applicable to criminal proceedings
relating to VAT had not been harmonised by the EU legislature, and harmonisation
has since taken place only to a partial extent by the adoption of Directive
(EU) 2017/1371 of the European Parliament and of the Council of 5 July
2017 on the fight against fraud to the Union's financial interests by means of
criminal law (OJ 2017 L 198, p. 29).’ [61]
That
being so, the Court continued,
‘45 The Italian Republic was thus, at that time, free to
provide that in its legal system those rules, like the rules on the
definition of offences and the determination of penalties, form part of
substantive criminal law, and are thereby, like those rules, subject to the
principle that offences and penalties must be defined by law. [62]
46 The competent national courts, for their part, when they
have to decide in proceedings before them to disapply the provision of the
Criminal Code at issue, are required to ensure that the fundamental rights
of persons accused of committing criminal offences are observed (see, to
that effect, judgment in Taricco [I], paragraph 53). [63]
47 In
that respect, the national authorities and courts remain free to apply
national standards of protection of fundamental rights, provided that the
level of protection provided for by the Charter, as interpreted by the Court,
and the primacy, unity and effectiveness of EU law are not thereby compromised
(judgment of 26 February 2013, Åkerberg Fransson, C‑617/10,
EU:C:2013:105, paragraph 29 and the case-law cited).’ [64]
101.
The Grand Chamber then conducted a careful analysis of the
applicable case-law (including that of the Strasbourg Court), before concluding
its reasoning thus:
‘61 If the national court were thus to come to the view that
the obligation to disapply the provisions of the Criminal Code at issue
conflicts with the principle that offences and penalties must be defined by
law, it would not be obliged to comply with that obligation …’ [65]
In
other words, there was no bar to the national court, in such
circumstances, continuing to apply its national constitutional law.
102.
Where, on the spectrum of harmonisation that I sketched
earlier, [66] does Directive 2000/78 lie? It is to my mind clear that it
is both rather more ambitious and more comprehensive in its approach to
combating discrimination than a cautious minimum harmonisation measure. But
does it create total harmonisation or partial harmonisation of the relevant
rules? In shorthand: is the correct template for approaching the present cases Melloni,
or Åkerberg Fransson as confirmed by Taricco II?
103.
In my view, the answer is, ‘Åkerberg Fransson as
confirmed by Taricco II’.
104.
In the present two cases, as was also the situation (at the
relevant time) under the VAT rules being interpreted in Åkerberg Fransson
and Taricco II, the relevant instrument of EU law that falls to be
interpreted (here, Directive 2000/78) does not attempt to effect a
complete harmonisation of the relevant rules. The title of Directive 2000/78
explains that it lays down a ‘a general framework for equal treatment in
employment and occupation’. Its legal base was Article 13 of the Treaty
establishing the European Communities: [67] an enabling provision empowering the European Community to
enact legislation to combat discrimination on the grounds there listed
exhaustively. Recital 28 of Directive 2000/78 unequivocally reminds us
that ‘This Directive lays down minimum requirements, thus giving the
Member States the option of introducing or maintaining more favourable
provisions. The implementation of this Directive should not serve to
justify any regression in relation to the situation which already prevails
in each Member State’. [68]
105.
Article 8 of Directive 2000/78 then gives tangible and
binding legal expression to that recital. It is entitled, unequivocally,
‘Minimum requirements’. It states – to my mind, equally unequivocally – as
follows:
‘1. Member States may introduce or maintain
provisions which are more favourable to the protection of the principle of
equal treatment than those laid down in this Directive.
2. The implementation of this
Directive shall under no circumstances constitute grounds for a reduction
in the level of protection against discrimination already afforded by
Member States in the fields covered by this Directive.’ [69]
106.
Against that background, it seems to me impossible to
conclude that Directive 2000/78 effected the same type of total harmonisation,
at EU level, of the relevant rules as was the case with the revised
version of Framework Decision 2002/584 that led (I respectfully say, correctly)
to the Court’s decision in Melloni. On the contrary: the EU legislature
expressly and specifically left the door ajar for national law to complement
and complete the arrangements for combating discrimination on any and all of
the listed grounds. That necessarily and importantly includes national
constitutional law.
108.
It follows that the approach favoured by the Grand Chamber
in Åkerberg Fransson, as further confirmed by Taricco II,
can properly and legitimately be applied in the present cases.
109.
I therefore conclude, in relation to the second of the two
fundamental conceptual issues that I have identified, that a national court may
properly have regard to national constitutional law provided that in so doing
the test laid down by the Court in Åkerberg Fransson is respected,
namely that ‘the level of protection provided for by
the Charter, as interpreted by the Court, and the primacy, unity and
effectiveness of European Union law are not thereby compromised’. [70]
Religious expression, religious apparel and religious
tolerance
110.
Understanding religious ritual customs and religious
practice or expression does not come automatically if you are a member of the
dominant or established religion observing practitioners of another (probably,
minority) religion at worship. Samuel Pepys’ diary entry for Wednesday 14
October 1663 provides a classic illustration:
‘… after dinner my wife and
I, by Mr. Rawlinson’s conduct, to the Jewish Synagogue: where the men and
boys in their vayles, and the women behind a lattice out of sight; and some
things stand up, which I believe is their Law, in a press to which all coming
in do bow; and at the putting on their vayles do say something, to which others
that hear him do cry Amen, and the party do kiss his vayle. Their service all
in a singing way, and in Hebrew. And anon their Laws that they take out of the
press are carried by several men, four or five several burthens in all, and
they do relieve one another; and whether it is that every one desires to have
the carrying of it, I cannot tell, thus they carried it round about the room
while such a service is singing. And in the end they had a prayer for the King,
which they pronounced his name in Portugall; but the prayer, like the rest, in
Hebrew. But, Lord! to see the disorder, laughing, sporting, and no attention,
but confusion in all their service, more like brutes than people knowing the
true God, would make a man forswear ever seeing them more and indeed I never
did see so much, or could have imagined there had been any religion in the
whole world so absurdly performed as this. Away thence with my mind strongly
disturbed with them …’ [71]
111.
What Mr Pepys did not realise was that he had visited
Congregation Shaar Hashamayim [72]
on a very particular day in the calendar of Jewish festivals, Simchat Torah. On
that day, the normal reverence and respect for the Torah scroll (for example,
as it is paraded ceremoniously through the congregation before being returned
to the bimah for the readings) is deliberately and piously replaced by a
celebration of the Law in which ordinary congregants dance joyously with the
Torah scrolls and pass them to each other. He was not – as he thought and
therefore recorded in his diary – witnessing ‘confusion in all their service,
more like brutes than people knowing the true God’. He was witnessing an annual
manifestation of religious fervour and innocent delight. [73]
112.
The scenes witnessed by Mr Pepys are an obvious illustration
of the ‘manifestation’ of a religion: an act related to religious belief which
the practitioner of that religion voluntarily chooses to perform in public
(thus making his religious affiliation ‘manifest’ to others).
113.
What of the wearing of ‘visible signs of religious, [political
or other ideological] belief?
114.
The outside observer may take the view that there is no difference between a committed
Christian wearing a cross and an observant Muslim woman wearing a hijab or an
observant orthodox Jewish man, a kippah. There is, however, an important
difference from the perspective of the practitioner.
115.
For the committed Christian layman, the decision as to whether
to wear a visible cross pinned on or displayed over one’s clothing is a matter
of personal choice. There is no rule of the religion that requires the wearing of such a visible cross. To do so is therefore
a voluntary act and, as such, a manifestation of one’s belief.
116.
I do not think that the wearing of a hijab (or a kippah, or
a dastar, to take but two other examples) can be so neatly classified as
‘merely’ a manifestation of one’s belief. To do so is to miss the presence of a
religious obligation that dictates the wearing of that item of attire.
‘And say to the believing women that
they should lower their gaze and guard their modesty; that they should not
display their beauty and ornaments except what (must ordinarily) appear
thereof; that they should draw their veils over their bosoms and not display
their beauty except to their husbands, their fathers, their husband’s fathers,
their sons, their brothers or their brother’s sons, or their women.’ [74]
118.
As I emphasised in my Opinion in ADDH,[75] levels of religious observance vary between individuals
and, specifically in relation to Islam, there is a degree of discussion as to
whether a hijab is specifically mandated religious apparel or whether it
‘merely’ embodies the Koranic requirement that observant Muslim women should
‘guard their modesty’. For present purposes, what is important is that a
significant number of observant female Muslims regard themselves as being obliged to wear a hijab in order to
comply with a requirement of their religion; and that the two employees who are
the applicants in the two cases giving rise to the present references take that
view.
119.
Here, I draw attention to the approach adopted by Advocate
General Hogan in Centraal Israëlitisch Consistorie van België and Others, [76] when he observed at point 47 of
his Opinion that ‘there has also been some debate before the Court as to
whether the prior reversible stunning which does not lead to the death of an
animal or post-cut stunning of vertebrates satisfies the particular methods of
slaughter prescribed by religious rites of both the Muslim and Jewish faiths.
In that regard, it would seem that there are divergent views on the matter
within both faiths. As I pointed out in my Opinion in Case C-243/19 A. v
Veselïbas Ministrija, a secular court cannot choose in relation to the
matters of religious orthodoxy: it is, I think, sufficient to say that there is
a significant body of adherents to both the Muslim and Jewish faiths for whom
the slaughter of animals without such stunning is regarded by them as an
essential aspect of a necessary religious rite. I propose, accordingly, to
proceed on that basis.’
120.
It seems to me that there is eminent good sense in that
approach. Here, too, there is a ‘significant body of adherents to both the
Muslim and Jewish faiths’ who regard the wearing of, respectively, a hijab if
one is female and a kippah if one is male as ‘an essential aspect of a
necessary religious rite’. For those reasons, in what follows I shall treat
both the hijab and the kippah as being apparel required of them by their religion by those with a particular level
of observance in their respective faiths. I shall refer to such items of
apparel in shorthand as ‘mandated religious apparel’.
125.
This is perhaps a convenient moment to return to the
distinction between practising one’s religion and proselytising so that others
decide to convert and also adhere to one’s religion. The former is a protected
value under both Article 9 of the ECHR and Article 10 of the Charter.
The latter is an activity that, whilst it involves the exercise of freedom of
expression (also protected), [77] may legitimately be prohibited in particular contexts where
freedom of (verbal) expression for the believer is outweighed by the importance
of safeguarding the rights of others.
127.
However, it does not
follow that a (partial or total) policy of ‘neutrality’ that focuses on banning
all signs, or all ‘large-scale’ signs, that indicate one’s religious
affiliation is justifiable because it
may have the (incidental) effect of discouraging or impeding proselytising.
128.
Rather, it is apparent from these two further references
concerning policies on ‘neutrality’ and restrictions on the wearing of visible
outward signs of religious affiliation, including mandated religious apparel,
that there is a kind of conceptual confusion emanating from the word
‘neutrality’ into which it is very easy to slip. That confusion is epitomised
by WABE’s ‘information sheet on the requirement of neutrality’ which answers
the question of whether the Christian cross, Muslim headscarf or Jewish kippah
(all being treated similarly) may be worn as follows:
‘No, as the children should not be
influenced by the teachers with regard to a religion, this is not permitted.
The deliberate choice of religiously or ideologically determined clothing is
contrary to the requirement of neutrality’.
129.
That answer combines and confuses the following different
elements:
(i)
Wearing mandated religious apparel (a hijab, in order to
dress modestly; or a kippah, in order to show reverence in God’s presence) is
an integral part of the practice of certain non-Christian religions. Thus, to
describe this as a ‘deliberate choice of religiously or ideologically
determined clothing’ is fundamentally to misunderstand that for the two
non-Christian religions in question (Islam, Judaism) mandated religious apparel
is an integral part of the individual’s religious practice. (The same is true
of, for example, male Sikhs who follow the rule of the five Ks [78] and
who wear dastars over their (uncut) long hair.) In contrast, for the third of
the three Abrahamic religions (Christianity), the wearing of a cross is a
manifestation of religious belief, but not mandated religious apparel.
(ii)
Ensuring that children are not ‘influenced’ by their
teachers (in, ex hypothesi, a
negative way, by being swayed towards that teacher’s religion) does not require the imposition of ‘a
requirement of neutrality’ relating to mandated religious apparel. It does require a strict prohibition on proselytising, enforced by appropriate
disciplinary sanctions.
(iii)
The neutral exposition of one’s religious beliefs and
practices in answer to enquiry is not proselytising and can be distinguished
from proselytising. Thus, explaining that ‘As a practising Christian/Jew/Muslim,
I believe X; and my religion requires me, in accordance with that belief, to do
Y’ is neutral and unexceptionable. It may be contrasted with, ‘My religion,
which is the only one true religion, tells us that belief X is the only way to
salvation and because I (naturally) follow the only true religion, of course I
obey the requirements of my faith; thus, as my faith requires, I do Y, which is
therefore a good thing to do’. Whereas the former statement gives objective
information about the speaker’s religious beliefs and the consequences of those
beliefs for the speaker’s conduct, the latter statement is a recruiting text
for the speaker’s religion.
(iv)
Neutral exposition of one’s religious beliefs is thus both
achievable and capable of supervision and review, in order to guard against
proselytising. Such review by the employer (‘Is statement A made by this
employee an objective explanation of what Christians/Jews/Muslims believe, or a
call to join the faithful?’) has routinely to be applied where religious
studies are taught in secular schools, particularly where comparative religions
are examined.
(v)
This is, of course, to be contrasted with religious (and
perhaps other) teaching in ‘faith schools’: there, the objective is precisely
to ensure that the pupils receive a solid grounding in the parents’ faith and
are discreetly encouraged to follow it, because that is what the parents
deliberately chose for their children when they elected to send them to a faith
school. [79]
130.
Moving away from that specific context, I would suggest that
it is fanciful to suppose that a client or customer is going to assume that an
individual employee’s religious convictions, as reflected in his or her wearing
of mandated religious apparel, necessarily or automatically represent the
business ideology of their employer. Where an employer does want to ensure that its employees project its corporate image,
the standard way for it to do so is to create a uniform for them to wear.
However, examples exist to demonstrate that such a uniform can – provided that
the employer in question is serious about embracing religious diversity and
respecting non-discrimination in the workplace – readily accommodate an
employee’s need to wear mandated religious apparel. [80]
131.
A couple of further illustrations may assist towards
dispelling the (misplaced) idea that an apparently neutral rule is either not
really discriminatory at all or, if perchance it does affect a particular
sub-group of employees, it is readily justifiable as being in the employer’s
business interest.
132.
Take the statement, ‘I have a “no headgear rule” because I
want my employees to look tidy’. A ‘tidy-looking’ workforce will no doubt be
better for the employer’s image with his customers; but the no headgear rule assumes that wearing mandated religious
apparel that covers the head (whatever that apparel may be) makes the employee
look ‘untidy’. The implicit value judgments beneath that assumption do not
really bear close scrutiny.
133.
Or, suppose that the employer (an ex-military man) dislikes
abundant facial hair and so promulgates the following rule: ‘I want my
employees to look neat and smart, so male employees are not allowed to have
facial hair’. That rule may affect the odd male employee (Christian, agnostic,
atheist) who would like, for personal reasons, to sport a moustache. It is guaranteed to have a disparate adverse
impact on many male Muslims and Sikhs who, as a sign of their faith wear full
beards, and male orthodox Haredi Jews who would point to a biblical prohibition
on trimming their beards and sidelocks.
The interface between (secular) society
and religion
134.
It seems to me legitimate to suggest that the very existence
of Directive 2000/78, enacted as it was to combat discrimination on any of the
prohibited grounds, represents a public and praiseworthy commitment towards
diversity and tolerance, including religious tolerance.
135.
True religious tolerance is not, however, expressed in the
conditional tense. It does not mean ‘We will tolerate you provided that in fact you believe, worship and behave more or less
as we do’. To adopt the attitude that, whilst the other person is permitted
secretly to entertain different beliefs, that person may not act according to
those beliefs or manifest them externally in any way is not religious
tolerance.
136.
In so saying, I am not suggesting that society can never
place limits on what it will accept under the guise of religious conduct. If
society does so, saying ‘Our value is X, you want to do Y and we will not
permit you to do Y within our society and on our territory’, society is thereby
saying ‘Y is beyond the limit of what we will tolerate’. Thus, if in that
example X is the sanctity of human life and Y were human sacrifice in the name
of religion, society would be asserting that human sacrifice was an outmoded
and savage religious practice. But that is a facile example, because an
imperative moral value X (another being’s right to life) is being set against
the right to practise one particular aspect of one’s religion (here, by
practising Y and thereby taking away life). [81] The exercise
of weighing up competing rights is there relatively straightforward.
137.
The Court has very recently had occasion, in a case
involving the slaughter of animals for meat according to Jewish and Islamic
ritual law, [82]
to weigh a particular religious practice against the values of animal welfare.
The EU legislation there at issue, [83] by imposing a
general requirement that ‘animals shall only be killed after stunning’, [84] had already determined that animal welfare took precedence over
unfettered freedom to conduct a business. It would be easier and cheaper to
operate a slaughterhouse with no such pre-stunning before slaughter (but also
less humane); and Article 16 of the Charter guarantees freedom to conduct a
business ‘in accordance with Union law’, so the interference with that right
was unexceptionable. The issue was whether the derogation for ‘animals subject
to particular methods of slaughter prescribed by religious rites’ [85] could be rendered more limited by a
regional law promulgated under devolved powers providing that pre-stunning must
always be used but that ‘if the animals are slaughtered according to special
methods required for religious rites, the stunning must be reversible and the
animal’s death must not be caused by stunning’. [86] The Court ruled that that restriction
on freedom of religion in the interests of animal welfare was permissible.
138.
Two important observations, pertinent to the present
references, should be made about that judgment.
139.
First, the limitation on the exercise of freedom of religion
at issue in Centraal Israëlitisch Consistorie
van België and Others concerned an area in which the religious rules are
ones that set the parameters within which an orthodox Jew or Muslim may do
something voluntary – that is,
consume meat. To that specific extent, the rules in question are enabling
rather than mandatory. There is no obligation
on the individual in question to eat meat; but – if the individual wishes to do so – he is obliged to respect
certain religious rules. In such circumstances, it seems to me that the balance
between the right to freedom of religion and another competing right (animal
welfare) can perhaps more readily be struck in a place that gives greater
weight (and hence preference) to that other right. That is because, ultimately,
there is no irredeemable conflict between freedom of religion and the other
right that one is seeking to protect.
140.
That is very different from the situation in which a
religion requires the performance of
a particular act (for example, circumcision of male Jews (brit milah)) [87] or particular
conduct (for example, the wearing of mandated religious apparel). In such
circumstances, it seems to me that society and the Court should alike be
correspondingly slow to strike the balance between competing rights in a way
that seriously undermines the right to freedom of religion.
141.
It would also be curious if freedom to conduct a business
were less important than animal welfare (as per Regulation No 1099/2009) but
more important than an employee’s freedom to practice his or her religion (as
protected by Directive 2000/78).
142.
Second, it is also noteworthy that in its judgment in Centraal Israëlitisch Consistorie van België
and Others the Court expressly endorsed an interpretation that results in diversity of values within the European
Union (a diversity that is itself enshrined in Article 22 of the Charter).
Regulation No 1099/2009 expressly leaves scope for Member States to adopt national
rules aimed at ensuring greater protection of animal welfare; [88] and that provided a solid legal basis
for upholding the Flemish decree. The Court’s judgment is, quintessentially,
permissive. It did not require a Member State to take any particular action.
Rather, having conducted an EU law ‘health check’ on whether the national
measures in question were ‘Charter compliant’ and concluded that they were, the
Court indicated to the national court that ‘… point (c) of the first
subparagraph of Article 26(2) of … Regulation No 1099/2009 …, read in the light
of Article 13 TFEU and Article 10(1) of the Charter, must be interpreted as not
precluding legislation of a Member State which requires, in the context of
ritual slaughter, a reversible stunning procedure which cannot result in the
animal’s death’. [89]
143.
Given that Article 8 of Directive 2000/78 similarly
authorises Member States to introduce or maintain greater protection (there, for
the principle of equal treatment), and that the Court has been told that
freedom of religion enjoys particular protection under German constitutional
law, [90] that
approach is surely equally pertinent here.
144.
My final, and more general, observation is that religions
change over time from within. The pre-Vatican II Roman Catholic Church was very
different from the Roman Catholic Church of today in terms of the mandatory
rules (positive and negative) that it imposed upon observant Roman
Catholics. [91] What is expected of an adult male
convert to Judaism by way of circumcision has – thankfully – moved on
considerably from such circumcision as is recorded in the Book of Genesis. As a
means for an observant Muslim woman to guard her modesty, the hijab is a much
less restrictive and confining garment than the burka or niqab. I do suggest,
however, that respect and tolerance for ‘other’ religions implies that change
is allowed to evolve gradually and freely within the religion itself. It is not
in principle dictated or imposed on the religion by secular society from the
outside.
The case-law of the Strasbourg court
145.
The right to freedom of religion is laid down in Article 9
of the Convention. Paragraph 1 of that article sets out that right, which is
expressly stated to include its manifestation. Paragraph 2 sets out a form of
limitation on the right to manifest. It provides that that right shall be ‘subject
only [92] to such
limitations as are prescribed by law and are necessary in a democratic society
in the interests of public safety, for the protection of public order, health
or morals, or for the protection of the rights and freedoms of others’.
146.
Article 14 of the Convention prohibits discrimination. It
provides that the enjoyment of the rights and freedoms set forth in the
Convention are to be secured without discrimination on any ground, including
religion.
147.
Article 2 of Protocol I to the Convention is headed ‘Right
to Education’. It provides that Contracting States are to respect the right of
parents to ensure education and teaching in conformity with their own religious
and philosophical convictions.
148.
I have referred above to the parallels between Article 10 of
the Charter and Article 9 of the Convention, on the one hand, and Articles 21
of the Charter and 14 of the Convention, on the other. [93] It is however
worth noting two differences between the Charter and the Convention. First, the
Convention does not distinguish between direct and indirect discrimination.
Instead, it provides more generally for the right to manifest one’s freedom of
religion to be subject to certain restrictions in the specific (and restricted)
circumstances which it enumerates. Secondly, the Convention contains no express
provision similar to Article 16 of the Charter, setting out the freedom to
conduct a business. However, the Strasbourg Court has – albeit indirectly –
recognised that the interests of those running a business may fall to be taken
into account as part of the balancing exercise which Article 9(2) of the
Convention requires. [94]
149.
Those rights, and the qualifications to those rights, have
been considered by the Strasbourg Court in a number of cases which are relevant
to the present Opinion. In Dahlab v. Switzerland (‘Dahlab’), [95] a chamber of the Court considered the case of a teacher
engaged in a public-sector Swiss primary school who challenged a decision
requiring her to remove her Islamic headscarf when carrying out her
professional duties. The chamber held that it was very difficult to assess the
impact that what it termed a ‘powerful external symbol’ such as the headscarf
might have on the freedom of conscience and religion of very young children. [96] It could not be denied outright that the wearing of a
headscarf might have some kind of proselytising effect. [97] Accordingly, and weighing the right of a teacher to
manifest her religion against the need to protect pupils by preserving
religious harmony, the chamber considered that, in the circumstances of the
case and having regard to the tender age of the children, the national
authorities had not exceeded their margin of appreciation and the measure they
had taken in refusing to allow Ms Dahlab to wear her headscarf in performing
her duties had not been unreasonable.
150.
The Dahlab decision was however distinguished by the
Grand Chamber of the Strasbourg Court in its judgment in Lautsi and Others
v. Italy. [98] There, the applicant objected to the displaying of the sign
of the cross in the State school her children (aged between 11 and 13)
attended. She claimed that it constituted interference with her right to ensure
that they received education and teaching in conformity with her religious and
philosophical convictions within the meaning of Article 2 of Protocol No 1 to
the Convention. In reaching the opposite conclusion to the Second Section, [99] the Grand Chamber held that there was no evidence that the
display of a religious symbol on classroom walls might have an influence on
pupils. It was an essentially passive symbol and it could not reasonably be
asserted that it did or did not have an effect on young persons whose
convictions are still in the process of being formed. The Court went on to note
that the presence of crucifixes was not associated with compulsory teaching
about Christianity and that the school environment in Italy was opened up to
other religions with the result, inter alia, that the wearing by pupils of
Islamic headscarves was permitted. Nor was there any indication that the
presence of crucifixes in classrooms had encouraged the development of teaching
practices with a proselytising tendency. The applicant’s claim before the Court
therefore failed. [100]
151.
The question of proselytising, addressed in Dahlab,
had earlier been considered by the Strasbourg Court in Kokkinakis v. Greece.
[101]
The applicant had been arrested more than 60 times for proselytism, which was
forbidden by the Greek constitution. The Court recalled that whilst religious
freedom is primarily a matter of individual conscience it also implied the
freedom to manifest one’s religion. That right included the right to try to
convince one’s neighbour, for example through ‘teaching’, failing which,
moreover, ‘“freedom to change [one’s] religion or belief”, enshrined in Article
9 [of the Convention], would be likely to remain a dead letter’. [102]
The Court held that proselytism entailed ‘exerting improper pressure on people
in distress or in need’ where such pressure ‘is not compatible with respect for
the freedom of thought, conscience and religion of others.’ [103]
Since the facts of the case did not warrant a finding that the applicant had
conducted himself in such a manner, there had been a violation of Article 9.
152.
A number of decisions of the Strasbourg Court have involved
the validity, under Article 9 of the Convention, of a prohibition on the
wearing of Islamic headscarves in an educational environment. Thus, in the case
of Leyla Şahin v. Turkey, [104] the Grand Chamber held that a ban on a Turkish student from
participating in university activities while wearing the headscarf, imposed
under the Turkish constitution, pursued a legitimate aim and was proportionate.
[105] The complaint in Kurtulmuş v. Turkey [106] involved an associate professor at Istanbul University who
had been deemed to have resigned from her post on the ground that she had
wilfully failed to comply with the rules on dress applicable to staff in State
institutions by wearing a headscarf. The Court relied on the Şahin judgment
in reaching its decision. It continued by noting the margin of appreciation
given to the Contracting States which had adopted a principle of neutrality in
the public service. [107] A similar decision was reached in Karaduman v.
Turkey, [108] where the applicant was a secondary school teacher of
religion in a public-sector school in Turkey.
153.
The Strasbourg Court has also considered the wearing of
religious apparel in a public establishment or public place, contrary to
national requirements imposed in particular in pursuance of a policy of
secularism (or laïcité). Thus, in Ebrahimian v. France, [109] the applicant was a social worker in the psychiatric unit
of a public health establishment. Her contract was not renewed on the ground
that she refused to remove her head covering. The Court held that the
interference complained of pursued the legitimate aim of protecting the rights
and freedoms of others, adding that upholding the principle of secularism is an
objective that is compatible with the values underlying the Convention. [110] [111]
154.
The State measure at issue in S.A.S v. France [112] was a French
law which prohibited the wearing of clothing designed to ‘conceal […] one’s
face in public places’ (that is to say, essentially the burqa and niqab). The
Grand Chamber of the Court once again noted the wide margin of appreciation
given to States in deciding whether and to what extent a limitation of the
right to manifest one’s religion or beliefs is necessary. However, it continued
by stating that, in delimiting the extent of the margin of appreciation in a
given case, the Court must also have regard to what is at stake therein. The
Court’s task was to determine whether the measures taken at national level were
justified in principle and proportionate. [113] Since the
Court found that there were other less onerous means of achieving the aim
underlying the national legislation, it found that France had failed to satisfy
that test. [114] It went on,
however, to hold that the ban was proportionate as regards the aim of the
preservation of the conditions of what was termed ‘living together’ and it was
upheld on that ground alone. [115] [116]
155.
Eweida and Others v. United
Kingdom [117] is the most
important of the judgments which I shall note here, since it is the only
decision of which I am aware that relates to employment in the private sector.
The case concerned four applicants, the most significant of whom for the
purposes of this Opinion was Ms Eweida herself. Ms Eweida was a Coptic
Christian who worked as a member of the check-in staff for British Airways. She
wore a cross openly, which was visible over her uniform, contrary to her
employer’s dress code at the time. She was asked to conceal or remove the cross
but refused. She was then offered administrative work without customer contact,
which would not have required her to wear a uniform, but she rejected that
offer.
156.
In its judgment, the Court held that, given the
importance in a democratic society of freedom of religion under Article 9 of
the Convention, where an individual complains of a restriction on freedom of
religion in the workplace, rather than holding that the possibility of changing
job would negate any interference with the right, the better approach would be
to weigh that possibility in the overall balance when considering whether or
not the restriction was proportionate. [118]
157.
As regards Article 14 of the Convention, the Court observed
that that provision has no independent existence, since it has effect solely in
relation to the rights and freedoms safeguarded by the other substantive
provisions of the Convention and its Protocols. It added, however, that the
application of Article 14 does not presuppose a breach of one or more of those
provisions and to that extent it fell to be treated as autonomous. [119]
158.
The Court added in relation to Ms Eweida’s complaint that
the refusal by her employer to allow her to remain in her post while visibly
wearing a cross amounted to an interference with her right to manifest her
religion. It was accordingly necessary to examine whether Ms Eweida’s right
freely to manifest her religion was sufficiently secured within the domestic
legal order and whether a fair balance was struck between her rights and those
of others. It noted that the dress code had been in force for some years and
had caused no known problem to the applicant or any other member of staff; that
Ms Eweida had lodged a formal grievance complaint but then decided to arrive at
work displaying her cross, without waiting for the results of the grievance
procedure; that the issue had been conscientiously addressed by British Airways
once the complaint had been lodged resulting in a relaxation of the dress code
to permit the wearing of visible religious symbols; and that Ms Eweida had been
offered an administrative post on identical pay during this process and was
subsequently reinstated in her old job. [120]
159.
The Court went on to hold that:
‘94. It
is clear, in the view of the Court, that these factors combined to mitigate the
extent of the interference suffered by the applicant and must be taken into
account. Moreover, in weighing the proportionality of the measures taken by a
private company in respect of its employee, the national authorities, in
particular the courts, operate within a margin of appreciation. Nonetheless,
the Court has reached the conclusion in the present case that a fair balance
was not struck. [[121]]
On one side of the scales was Ms Eweida’s desire to manifest her
religious belief. As previously noted, this is a fundamental right: because a
healthy democratic society needs to tolerate and sustain pluralism and
diversity; but also because of the value to an individual who has made religion
a central tenet of his or her life to be able to communicate that belief to
others. On the other side of the scales was the employer’s wish to project a
certain corporate image. The Court considers that, while this aim was
undoubtedly legitimate, the domestic courts accorded it too much weight. Ms
Eweida’s cross was discreet and cannot have detracted from her professional
appearance. There was no evidence that the wearing of other, previously
authorised, items of religious clothing, such as turbans and hijabs, by other
employees, had any negative impact on British Airways’ brand or image.
Moreover, the fact that the company was able to amend the uniform code to allow
for the visible wearing of religious symbolic jewellery demonstrates that the
earlier prohibition was not of crucial importance.
95. The Court therefore concludes that,
in these circumstances where there is no evidence of any real encroachment on
the interests of others, the domestic authorities failed sufficiently to
protect the first applicant’s right to manifest her religion, in breach of the
positive obligation under Article 9. In the light of this conclusion, it does
not consider it necessary to examine separately the applicant’s complaint under
Article 14 taken in conjunction with Article 9.’
160.
Lastly, it is worth considering in overview certain
decisions of the Strasbourg Court concerning the freedom of religion seen in
its wider scope. First, in Buscarini and Others v. Saint-Marino,
[122]
the Court made it clear that it saw the benefit of Article 9 of the Convention
as extending to ‘atheists, agnostics, sceptics and the unconcerned’. [123]
In Cha’are Shalom V e Tsedek v. France, [124]
the Court considered the practice of ritual slaughter. It held that that
practice must be considered to be covered by Article 9 of the Convention but
that there would be interference with that right only if the illegality of
performing ritual slaughter made it impossible for ultra-orthodox Jews to eat
meat from animals slaughtered in accordance with the religious prescriptions
they considered applicable. [125]
In Wasmuth v. Germany, [126]
the Court stressed the importance of pluralism in a democratic society, which
it described as being integral to any such society. [127]
161.
What makes an analysis of the Convention and of the
applicable case-law of the Strasbourg Court important?
162.
Here, it is necessary to recall Article 52(3) of the
Charter, the first sentence of which provides that, in so far as the Charter
contains rights which correspond to rights guaranteed by the Convention, the
meaning and scope of those rights are to be the same as those laid down by the
Convention. Clear guidance on the interpretation of that provision is set out
in the Explanations to the Charter, according to which:
‘paragraph 3 [of Article 52] is
intended to ensure the necessary consistency between the Charter and the ECHR
by establishing the rule that, in so far as the rights in the present Charter
also correspond to rights guaranteed by the ECHR, the meaning and scope of
those rights, including authorised limitations, are the same as those laid down
by the ECHR. This means in particular that the legislator, in laying down
limitations to those rights, must comply with the same standards as are fixed
by the detailed limitation arrangements laid down in the ECHR, which are thus
made applicable for the rights covered by this paragraph, without thereby
adversely affecting the autonomy of Union law and of that of the Court of
Justice of the European Union. The reference to the ECHR covers both the
Convention and the Protocols to it. The meaning and the scope of the guaranteed
rights are determined not only by the text of those instruments, but also by
the case-law of the European Court of Human Rights and by the Court of Justice
of the European Union. The last sentence of the paragraph is designed to allow
the Union to guarantee more extensive protection. In any event, the level of
protection afforded by the Charter may never be lower than that guaranteed by
the ECHR.’
163.
It follows that where rights granted under the Convention
and the Charter correspond with one another the Court is obliged to take into
account the case-law of the Strasbourg Court concerning that right not merely
as a matter of expediency but as a matter of law. Where there is no
direct correspondence between those rights, it will none the less be highly
desirable, to put it at its lowest, that the Court should adopt an equivalent
interpretation and approach to that adopted by the Strasbourg Court. The two
systems of human rights law within the EU should not compete or conflict save
in the case of differences that are intentional.[128]
That point is relevant, for example, in relation to the considerable overlap
between the non-discrimination provisions in Article 14 of the Convention and
Article 21 of the Charter.
164.
What are the primary conclusions that can be drawn from the
Strasbourg Court’s case-law I have referred to above for the purposes of the
present Opinion?
165.
First, it might be observed that there is a clear line of
case-law where that Court has rejected complaints brought on behalf of wearers
of the Islamic headscarf and that the Court has deferred to the discretion of
Contracting States which have imposed a ban. That observation is understandable
but it misses one essential point. That is that the decisions in question
relate to bans imposed in the public realm, either in the field of State
education or on the wearing of religious apparel in public places and public
establishments. [129]
The same does not apply to the case-law concerning the wearing of religious
apparel in private-sector employment (where the only authority thus far, [130] Eweida,
found that there had been a violation of Ms Eweida’s rights under Article 9 of
the Convention). I shall return to that point below. [131]
166.
Second, even in its decisions concerning the public sector
and public places, the Strasbourg Court has been at pains to stress the need
for a balancing exercise between competing fundamental rights.
-
the observation (paragraph 83) that the possibility of
changing jobs does not negate any interference with a right granted by the
Convention but rather that that factor should be weighed in the overall balance
when considering whether the restriction was proportionate;
-
the recognition (paragraph 85) that the non-discrimination
provisions set out in Article 14 of the Convention necessarily overlap with the
right to freedom and manifestation of religion set out in Article 9;
-
the acknowledgement (paragraph 94) that the employer’s wish
to project a certain corporate image was, although not expressly recognised as
such under the Convention, a right that fell to be taken into account as a
legitimate part of the balancing exercise; and
-
the finding (in the same paragraph) that the right of Ms
Eweida to wear a ‘discreet’ cross should prevail over her employer’s interest
in projecting its corporate image. There was no evidence to show that the
wearing by other employees of religious clothing such as turbans or hijabs had
had any negative impact on her employer’s brand or image.
168.
Lastly, I would counsel some caution as regards the
application of the decision in Dahlab. It should not in my view be taken
as authority for holding that the wearing by a teacher of young children of an
Islamic headscarf will in each and every case be unjustifiable. I accept of
course that children of ‘tender age’ should be protected from undesirable
influences. Conversely, it is not easy on the face of it to reconcile the
observations on proselytising set out in that decision with the judgment in Kokkinakis
v Greece, which refers to ‘improper pressure’. The Chamber in the Dahlab
case appears to have accepted the point without any real inquiry or
evidence. [132] In every case involving competing rights, it is in my view
necessary to undertake a full investigation of all relevant surrounding facts;
if that exercise is not undertaken, no proper assessment can be reached. Given
the separation of functions between the Court and the national court in the context
of the reference procedure under Article 267 TFEU (as confirmed by consistent
case-law), [133] it will fall to the national court to conduct that
necessary exercise in the WABE case. [134]
The
case-law of the Court of Justice
Discrimination
on religious and other grounds
169.
I shall begin with the case-law of the Court of Justice
concerning discrimination on religious and other grounds, before examining the
case-law concerning freedom to conduct a business. Within that first group of
cases, I shall start by considering the judgments in the G4S Secure
Solutions [135] and ADDH [136] cases, together
with two other recent decisions in the Egenberger [137] and IR [138] cases, and
shall do so at a little length. I shall then turn to other decisions that are
relevant to the present discussion but shall do so only briefly.
170.
G4S Secure Solutions concerned a Muslim employee in the
private sector who was dismissed by her employer because she continued to wear
her Islamic headscarf at the workplace despite having been instructed not to do
so. Her conduct was in breach of an internal rule, according to which
‘employees are prohibited, in the workplace, from wearing any visible signs of
their political, philosophical or religious beliefs and/or from engaging in any
observance of such beliefs’. The Court was asked one question, by which the
national court essentially wished to know whether that rule constituted direct
discrimination for the purposes of Article 2(2)(a) of Directive 2000/78.
171.
The Court’s judgment was brief. It started its analysis by
considering the purpose of the directive, citing the laying down of a general
framework for combating discrimination on the ground, inter alia, of religion
as regards employment and occupation. It held that the concept of ‘religion’
should be construed as covering both the forum internum, that is to say
the fact of having a belief, and the forum externum, that is to say the
manifestation of religious faith in public. [139] It then went on to address the rule at issue. It held that,
since that rule treated all workers in the undertaking in the same way, by
requiring them in a general and undifferentiated way to dress neutrally, and
since there was no evidence that the claimant had been treated differently from
other workers, the rule at issue did not constitute direct discrimination. [140]
172.
Those observations were in themselves sufficient to answer
the national court’s question. However, the Court went on to provide what it
termed ‘guidance on points of interpretation which [might] be of assistance in
adjudicating on the case pending before [the national court]’. It noted that
the rule at issue might constitute indirect discrimination for the purposes of
Article 2(2)(b) of the directive. That would not be the case if the rule was
objectively justified by a legitimate aim and if the means of achieving that
aim were appropriate and necessary. [141]
173.
As regards the first of these, the Court held that the
employer’s desire to display, in relations both with public and private sector
companies, a policy of political, philosophical or religious neutrality must be
considered legitimate. It reached that conclusion on the basis that an
employer’s wish in that regard related to the freedom to conduct a business as
recognised in Article 16 of the Charter and was thus in principle legitimate.
This was the case ‘notably’ where the employer involved in its pursuit
of that aim only those workers who were required to come into contact with its
customers. The Court considered that the pursuit of that aim, which allowed ‘within
certain limits’ [142]
a restriction to be imposed on the freedom of religion, was consistent with the
Strasbourg Court’s decision in the Eweida case. [143] [144]
174.
As regards the appropriateness of the rule at issue, the
Court held that it was appropriate ‘for the purpose of ensuring that a policy
of neutrality is properly applied’, provided that the policy was genuinely
pursued in a consistent and systematic manner. [145]
175.
With respect, lastly, to the necessity of the rule, the Court
held that it could be considered to be ‘strictly necessary’ for the purpose of
achieving the aims pursued provided that its application was limited to workers
who interact with customers. [146]
The Court added that it was for the national court to ascertain whether
‘without G4S being required to take on an additional burden’ it would have been
possible for it to offer the claimant a post not involving any visual contact
with customers instead of dismissing her. It was for the national court to see
that the restrictions on the freedoms imposed were limited to what was strictly
necessary. [147]
176.
The claimant in ADDH also worked in a private-sector
company. Her job involved customer contact and she wore an Islamic headscarf to
work. Following a working visit to one of her employer’s customers, she was
informed that the customer had complained that some of its employees had been
upset and had requested that there should be ‘no veil next time’. [148]
She was subsequently asked to comply with that request but refused. She was
thereupon dismissed. The Court was asked one question, namely whether a
customer’s wish that the employer’s services be no longer provided by an
employee wearing an Islamic headscarf might be a genuine and determining
occupational requirement for the purposes of Article 4(1) of Directive 2000/78
by reason of the nature of the particular occupational activities concerned or
the context in which they were carried out. [149]
177.
In a judgment which was once again very brief, the Court
essentially reiterated the observations as to the purpose of the directive and
the meaning of ‘religion’ which it had set out in G4S Secure Solutions. [150]
It then observed that it was unclear from the order for reference whether the
difference in treatment in the case was based directly or indirectly on
religion. If it were to be the latter, the Court cross-referred to its judgment
in that case. [151]
If that decision did not apply, it then became necessary to consider the
meaning of Article 4(1) of the directive. The Court noted that it had
repeatedly held that it was not the ground on which the treatment was based but
a characteristic related to that ground which had to constitute a genuine and
determining occupational requirement. It also referred to recital 23 of the
directive, according to which it was only in very limited circumstances that
such a requirement might arise, and noted the narrowness of the terms in which
Article 4(1) was expressed. It followed that that provision could not be held
to apply in the case of an employer who sought to take account of the wishes of
a customer. [152]
178.
Egenberger concerned a
recruitment process run by a Protestant organisation in Germany for a post
involving participation in drawing up a report on the application of a United
Nations convention on the elimination of racial discrimination. Candidates were
required to show membership of a Protestant church or a church belonging to the
Working Group of Christian Churches in Germany. The claimant before the
national court, who was of no denomination, applied and was shortlisted but was
not invited to interview. The subsequent dispute turned, inter alia, on the
application of Article 4(2) of Directive 2000/78. [153] The Court noted that the objective of that provision was to
strike a fair balance between the right of autonomy of churches and similar
religious organisations, on the one hand, and, on the other hand, the right of
workers not to be discriminated against on grounds of religion or belief when
they are being recruited. To that end, the provision sets out the criteria to
be taken into account in the balancing exercise which must be performed in
order to ensure a fair balance between those competing fundamental rights. In
the event of a dispute, it had to be possible for that exercise to be the
subject if need be of review by an independent authority and ultimately by a
national court. [154] The lawfulness of a difference of treatment on those
grounds depended on the objectively verifiable existence of a direct link
between the occupational requirement imposed by the employer and the activity
concerned. In determining whether the requirement is ‘genuine, legitimate and
justified’ for the purposes of Article 4(2), it was not for the national courts
to rule on the ethos as such on which the purported requirement is founded; but
they were nevertheless called upon to decide on a case-by-case basis whether
those criteria were satisfied from the point of view of that ethos. [155] The Court gave guidance on the criteria, pointing out that
the requirement in Article 4(2) of Directive 2000/78 must additionally comply
with the principle of proportionality. [156]
179.
The Court was also asked what the position would be if its
interpretation of the directive were to prove inconsistent with a provision of
national law. It answered that question in the usual terms by referring to the
primacy of EU law and the need for the national court to interpret that
provision, so far as possible, in accordance with EU law. It concluded,
however, by referring to Article 47 of the Charter, which provides for everyone
whose rights and freedoms guaranteed by EU law are infringed to have an
effective judicial remedy. It added that that provision, like Article 21 of the
Charter, is sufficient in itself and does not need to be made more specific in
order to confer on individuals a right on which they may rely as such. It went
on to state that ‘that conclusion is not called into question by the fact that
a court may, in a dispute between individuals, be called upon to balance
competing fundamental rights which the parties to the dispute derive from the
[TFEU] or the Charter and may even be obliged, in the review that it must carry
out, to make sure that the principle of proportionality is complied with.’ [157]
180.
IR also concerned the interpretation of Article 4(2) of
Directive 2000/78. The applicant in the first instance proceedings before the
national court was a Roman Catholic and had been married in accordance with the
rites of that church. He had subsequently divorced and remarried in civil
proceedings without his marriage having been annulled by the church. His
employer was a non-profit organisation established in order to carry out the
work of Caritas (the international confederation of Catholic charitable
organisations) and he held a managerial post within that body pursuant to an
employment contract concluded on the basis of the Catholic Church’s regulations
on employment relationships. On the employer having learnt of his second
marriage, the claimant was dismissed. The employer argued that that dismissal
for breach of the claimant’s duty of loyalty was justified having regard to the
managerial post that he occupied, which was incompatible with his having
entered into a marriage that was invalid under canon law.
181.
The Court started its analysis by holding that the
lawfulness of a requirement to act in good faith and with loyalty imposed by a
church or other organisation whose ethos is based on religion or belief cannot
be examined by reference only to national law but must take into account the
provisions of Directive 2000/78. It was not possible to exclude the question of
compliance with those criteria from judicial review. [158]
In holding that Article 4(2) could be relied on to justify the dismissal only
if certain conditions were satisfied, the Court reiterated its observations in Egenberger.
It observed that the use of the term ‘justified’ in Article 4(2) meant not only
that a national court can review whether the criteria laid down in it are being
complied with but also that the church or organisation imposing the requirement
is obliged to show in the light of the factual circumstances of the individual
case that the alleged risk of undermining its ethos or its autonomy is probable
and substantial, so that the imposition of such a requirement is necessary. The
occupational requirement to which the first paragraph of Article 4(2) refers
must be consistent with the principle of proportionality. [159]
182.
Although it was for the national court to determine, on the
facts, whether the requirement at issue was genuine, legitimate and justified
in the light of the ethos of the organisation concerned, the Court stated that
adherence to the Roman Catholic notion of marriage did not ‘appear to be
necessary for the promotion of IR’s ethos’, [160] bearing in mind the claimant’s occupational activities (the
provision of medical advice and care in a hospital setting and management of
the internal medicine department which he headed). Thus, it did not appear to
be a genuine requirement. That conclusion was supported by the fact that
non-Catholics were appointed to similar managerial and medical positions as the
claimant and consequently were not subject to the same requirement to act in
good faith and with loyalty to IR’s ethos. [161]
183.
The Court has addressed the issue of direct discrimination
in two further recent cases. Cresco Investigation [162]
involved national legislation which gave the right to a religious holiday to
members of certain churches but not to those of others or to non-practising
Christians. The Court held that the difference in treatment was directly based
on religion and there was thus a prima facie case of direct discrimination. [163]
In CHEZ Razpredelenie Bulgaria, [164]
a national supply company had erected electricity meters at a considerably
greater height in what were considered to be ‘Roma’ districts than in other
ones. The Court held that if it was apparent that a measure which gives rise to
a difference in treatment had been introduced for reasons relating (in that
case) to racial or ethnic origin, that measure must be classified as direct
discrimination for the purposes of the applicable directive. [165]
184.
An earlier decision involving direct discrimination is that
of Feryn. [166]
The employer, who sold doors for installation in private houses, indicated that
it would not employ ‘immigrants’ because its customers were reluctant to give
them access to their houses. The Court held that a statement of that kind
constituted direct discrimination, since it would be
clearly likely to strongly dissuade certain candidates from submitting their
candidature and thus hinder their access to the labour market. [167]
185.
The Cresco Investigation case and the earlier
decision in United Kingdom v Council [168]
are both examples of what I might term the ‘secularisation’ or
‘de-Christianisation’ of the Court’s case-law. In the former case, the Court
noted that church members who were entitled to the benefit at issue might not
in practice use the day of leave for religious purposes but might instead use
it as a day of rest or for leisure purposes. The measure was not a necessary
one for the purposes of the protection of the rights and freedoms of others
within meaning of Article 2(5) of Directive 2000/78. [169]
In the latter case, the United Kingdom sought to have the working time
directive [170]
annulled on the ground inter alia that the Council had wrongly included Sunday
as a mandatory day of rest. The Court held that the Council had failed to
explain why Sunday, as a weekly rest day, was more closely connected with the
health and safety of workers than any other day of the week. The offending
provision was therefore excised. [171]
186.
The Court has recognised that fundamental rights may require
to be balanced with other fundamental rights or other interests in a number of
decisions other than Egenberger. [172] Prais [173]
is an early example. The question at issue was whether an applicant (in
this case of the Jewish faith) could be required to sit an open competition set
by one of the institutions on a day which was for her (but not for other
candidates of a different faith or of no faith) a religious holiday. The Court
held that the interest of participants not to have a date fixed for the test
which was unsuitable had to be balanced against the necessity for all
candidates to sit the test on the same date. Since the applicant had not
informed the appointing authority in advance that religious reasons made
certain dates impossible for her, the appointing authority was justified in refusing
to offer an alternative date, other candidates having been summoned for the
test. [174]
187.
In Veselības ministrija, [175]
the Court considered the case of a father who, as a Jehovah’s witness, did not
wish to have his son treated in a hospital in his home Member State, where he
would be given a blood transfusion, but in another Member State, where
treatment would be given without a transfusion but at greater cost. The
national authorities had refused the father’s request. The Court noted in
response to one of the questions referred that the home Member State’s conduct
constituted prima facie indirect discrimination on grounds of religion or
belief and was accordingly covered by the prohibition laid down in Article 21
of the Charter. [176]
However, it went on to hold that the refusal on the home Member State’s part to
pay for that treatment was justified in the light of the need to protect the
financial stability of the health insurance system. That refusal did not exceed
what was objectively necessary for that purpose and was proportionate. [177]
188.
In Deutsche Umwelthilfe, [178]
the Court was asked to rule on a situation which involved, in effect,
competing fundamental rights in the form of (i) the right to effective judicial
protection guaranteed by the first paragraph of Article 47 of the Charter and
(ii) the right to liberty guaranteed by Article 6 of the Charter. [179]
The Court noted that, as was apparent from Article 52(1) of the Charter, the
right to effective judicial protection was not an absolute right and might be
restricted in particular in order to protect the rights and freedoms of others,
including rights arising under Article 6. A balancing exercise accordingly
required to be undertaken. In particular, where several fundamental rights are at
issue, the assessment of whether the principle of proportionality is observed
must be carried out in accordance with the need to reconcile the requirements
of the protection of those various rights, striking a fair balance between
them. [180]
189.
On a more general level, the decision in CHEZ
Razpredelenie Bulgaria is also worth noting because of the Court’s
observations concerning the interpretation of the provisions governing any
potential justification for indirect discrimination under (in that case)
Article 2(2)(b) of Directive 2000/43. [181]
Asked to rule on the validity of the measure at issue were it to constitute
indirect discrimination, the Court observed that for the purposes of justifying
indirect discrimination, the concept of objective justification (of a
legitimate aim) required to be interpreted strictly. [182]
As regards the question whether the practice was necessary, the Court held that
it was for the national court to ascertain whether other appropriate and less
restrictive measures existed for the purpose of achieving those aims. It added
that, were it to be found that no other measure than the practice at issue
could be identified, the national court would still also have to determine
whether the disadvantages caused by the practice were disproportionate to the
aims pursued and whether the practice unduly prejudiced the legitimate
interests of the persons living in the district concerned. [183]
Freedom to conduct a business
190.
As already mentioned, the Convention includes no provision
equivalent to Article 16 of the Charter; but the Strasbourg Court has nevertheless
acknowledged in its case-law that the interest of those running a busines
should, in appropriate cases, be taken into account. [184]
For the Charter, the Explanations record that:
‘… Article [16] is based on Court of Justice
case-law which has recognised freedom to exercise an economic or commercial
activity [the Explanations here cite four decisions of the Court] and Article
119(1) and (3) of the [TFEU], which recognises free competition. Of course,
this right is to be exercised with respect for Union law and national
legislation. It may be subject to the limitations provided for in Article 52(1)
of the Charter.’
191.
It has been observed that the wording of Article 16, using
as it does the formula ‘the freedom to conduct a business is recognised’ could
be seen as suggesting that it is a relatively weak right when contrasted, for
example, with the much stronger introductory wording used in Article 10(1)
(‘Everyone shall have the right to freedom of thought, conscience and religion
…’). The same observation has been made with regard to the cases cited in the
Explanations. [185] [186]
192.
Those cases include Nold v Commission, [187]
where the Court, whilst recognising the freedom in question, established that
it was not absolute. The case concerned a decision taken by the Commission
under the ECSC Treaty, one result of which was to authorise the Ruhr
coal-selling agency to make direct supplies of coal subject to the conclusion
of two-year contracts. [188] As a result of the decision, Nold lost its
status as a direct wholesaler of Ruhr coal. It argued that the decision
infringed ‘a right akin to a proprietary right’ and its right to the free
pursuit of business activity. The Court recognised that rights of ownership
were protected by the constitutional laws of the Member States and that similar
guarantees were given in respect of the right freely to choose and practice a
trade or profession. It stated, however, that the rights guaranteed were not
‘unfettered prerogatives’ and had to be viewed in the light of the social
function of the property and activities so protected. [189]
193.
In subsequent cases, the Court has reiterated the principle
that the freedom to pursue a business activity is not absolute but must be viewed
in relation to its social function. Thus, restrictions may be imposed on that
freedom, provided that they are in the public interest and do not constitute,
in relation to the aim pursued, a disproportionate and intolerable
interference, impairing the very substance of the right guaranteed. [190]
194.
Since the Charter came into effect, the freedom to conduct a
business in accordance with Union law and national laws and practices has been
enshrined in Article 16 thereof. The Explanations indicate that limitations to
the freedom are allowed, provided that they comply with Article 52 of the
Charter. As the Court has stated, that means that any limitation on the
exercise of the rights and freedoms recognised by the Charter must be provided
for by law and respect the essence of those rights and freedoms and, in
compliance with the principle of proportionality, must be necessary and
actually meet objectives of general interest recognised by the European Union
or the need to protect the rights and freedoms of others. [191]
195.
The Court has, in a number of cases in which Article 16 of
the Charter was in issue, conducted a balancing exercise between competing
rights.
196.
Thus, in Deutsches Weintor, [192]
a wine-growers’ cooperative objected to a provision of EU law prohibiting
certain claims being made to promote beverages containing more than 1.2% by
volume of alcohol. The issue of Article 16 of the Charter arose in relation to
that prohibition. The Court held that the compatibility of the prohibition with
Article 16 had to be assessed in the light not only of the freedom to choose an
occupation and the freedom to conduct a business, but also of the protection of
health, and that such an assessment had to be carried out in accordance with
the need to reconcile the requirements of the protection of those various
fundamental rights protected by the Union legal order, and striking a fair
balance between them. [193]
The Court duly conducted an analysis of the competing rights, noted that the
prohibition at issue did not affect the actual substance of the freedom to
conduct a business [194]
and concluded that the prohibition struck a fair balance between the protection
of consumers’ health, on the one hand, and the freedom of producers and
distributors to choose an occupation and to conduct a business, on the
other. [195]
197.
Sky Österreich [196]
concerned a legislative provision [197]
which prevented the holder of exclusive broadcasting rights from deciding
freely on the price to be charged for access to the signal for the purpose of
making short news reports. The Court found that the provision constituted an
interference with the freedom to conduct a business. [198] It held that, in the light of the wording of
Article 16 of the Charter, ‘which differs from the wording of the other
fundamental freedoms laid down in Title II thereof, yet is similar to that of
certain provisions of Title IV of the Charter, the freedom to conduct a
business may be subject to a broad range of interventions on the part of public
authorities which may limit the exercise of economic activity in the public
interest found’. [199] After considering the various interests in
issue, the Court found, in relation to safeguarding the fundamental freedom to
receive information and the freedom and pluralism of the media guaranteed by
Article 11 of the Charter, that the EU legislature was entitled to adopt rules
limiting the freedom to conduct a business, and to give priority, in the
necessary balancing of the rights and interests at issue, to public access to
information over the contractual freedom implicit in the freedom to conduct a
business. [200]
198.
Alemo-Herron [201] concerned the validity of what is termed a ‘dynamic clause’
in the transfer of an undertaking. The clause in question provided for
collective agreements negotiated and agreed after the date of transfer to be
enforceable against the transferee of the undertaking. Its effect was to limit
considerably the transferee’s room for manoeuvre to make adjustments and
changes in its relations with the workforce and it was thus more favourable to
the employees than to the new employer (the transferee). The latter was unable
to assert its interests effectively in a contractual process to which it was a
party. As a result, its contractual freedom was reduced to the point that such
a limitation was liable to have an adverse effect on ‘the very essence of its
freedom to conduct a business’. The Court found that the clause was liable to
undermine the fair balance between the interests of the transferee in its
capacity as employer, on the one hand, and those of the employees, on the
other. [202]
199.
The subsequent case of Asklepios Kliniken
Langen-Seligenstadt GmbH [203]
also involved continuing employment conditions on the transfer of an
undertaking. Not only did terms and conditions in a collective agreement in
force at the date of transfer continue to be enforceable against the new
employer but collective agreements subsequent to the transfer which
supplemented, modified, or replaced it were also enforceable. Crucially,
however, it was open to the transferee employer to make adjustments which were
both consensual and unilateral. That being so, the Court distinguished Alemo-Herron
and found that the clause in question was effective. [204]
200.
Alemo-Herron is thus one of
the few examples of the Court giving priority to the freedom to run a business
pursuant to Article 16 over other competing rights. [205] I suggest that it did so because, in that case, the
transferee employer’s position was so heavily restricted as a result of the
clause at issue that that freedom was rendered, in effect, nugatory. In the
other cases that I have briefly reviewed, the Court has – on the contrary –
given priority to other, competing rights over the right in Article 16 of the
Charter.
Reflections on discrimination
202.
It follows that the twin concepts of direct discrimination,
on the one hand, and indirect discrimination, on the other hand, should not be
construed for the purposes of that Directive in a way that permits a kind of
‘black hole’ to emerge between direct discrimination and indirect
discrimination into which a number of questionable practices fall.
203.
Where
direct discrimination is at issue, the Court has shown itself
commendably strict in patrolling the use of the (limited) derogations permitted
under the directive. [206]
The derogations themselves are interpreted strictly – that is, narrowly – and
there is a high level of scrutiny, both in the individual case and in the
recommendations given as guidance to national courts. I note here in
passing that the question of direct discrimination in the context of alleged
religious discrimination has arisen expressly in Case C-344/20, S.C.R.L.,
currently pending before the Court.
204.
This is also the place to recall that,
in its decision in CHEZ Razpredelenie Bulgaria, the Grand Chamber was alert to the
possibility that a decision that affected a particular group adversely might
have been motivated by some kind of ‘profiling’ of that group; and explained
that ‘it is sufficient, in order for there to be direct discrimination
within the meaning of Article 2(2)(a) of Directive 2000/43, that that ethnic
origin determined the decision to impose the treatment …’. [207]
[208] Later in the same judgment, the
Court refers to the possibility that
‘…the practice at issue is based on ethnic stereotypes or prejudices’
as one of the facts that, if established, the national court should take into
consideration as supporting a finding of direct discrimination. [209]
205.
Against that background, it is correspondingly important
that, where the discrimination complained of falls to be categorised as indirect
rather than direct, the subsequent scrutiny of the justification advanced
should be equally rigorous; and that the employer seeking to advance such a
justification should be held to the same high standards of proof.
206.
It seems to me, however, that the very nature of indirect
discrimination perhaps tempts us, unwittingly and wrongly, towards setting the
bar lower.
207.
Indirect discrimination occurs when an apparently neutral
criterion is applied to everyone, but the result is a disparate adverse impact
upon a particular sub-group of those to whom that criterion is applied. Because
the criterion is, indeed, neutral rather than overtly discriminatory,
that may perhaps generate a kind of unspoken assumption that in applying that
neutral criterion, the employer’s intentions were straightforward and
honourable. He did not mean to discriminate (had he had such an
intention, he would have picked and used an overtly discriminatory criterion).
Any discrimination that in fact occurred as a result of applying that neutral
criterion was not the objective of the employer’s action, but merely an
unfortunate side-effect. It is very easy to carry that unspoken assumption (if
it is made) across to the subsequent analysis of the justification advanced and
to scrutinise the latter with a correspondingly friendly eye.
208.
In reality, however, such an assumption risks being flawed,
at least in some cases.
209.
Whilst the application of a neutral criterion may sometimes,
indeed, result in inadvertent indirect discrimination, it is also perfectly
possible to conceive of circumstances in which the employer does in fact intend
to discriminate on a prohibited ground, but is sufficiently intelligent or well
advised to arrange matters so that the measures that he takes fall to be
classified as indirect, rather than direct, discrimination.
210.
Let us take the example of a fire service that places an
advertisement to recruit new ‘frontline’ personnel. We would all probably
intuitively agree that potential recruits will need to have a certain level of
fitness if they are to perform the functions required of them fighting
fires. [210]
There are different ways of framing the recruitment advertisement.
211.
Method A is to say that all candidates will be
required to pass a basic general fitness test as part of the recruitment
process, specifying the level of performance that will be required. Here is a
criterion that is, quintessentially, both neutral and readily justifiable.
Probably, fewer candidates over 40 will succeed in demonstrating the necessary
level of fitness than candidates under 40, so there will be a disparate adverse
impact on older candidates and hence indirect discrimination against such
candidates. However, the selection process is objectively fair to each
individual candidate. Since all candidates have to pass the test to be
recruited, the employer has every incentive to set the fitness standard
required at a level that may reasonably be thought to reflect the likely
demands of the job (he needs recruits). Therefore, it is likely that the
employer will be able to demonstrate, if challenged, that the indirect discrimination
on grounds of age is justifiable. [211]
212.
Method B is to have an absolute rule that only candidates under 40
may apply. The underlying assumption is that every potential candidate under 40
is fit enough, and that every potential candidate over 40 is not. Put crudely,
the recruitment policy would be, ‘We do not recruit old people as firemen’.
Such a rule would discriminate directly on grounds of age. Because there is absolutely
no scope for a candidate over 40 who happens to be very fit to prove his
fitness and get accepted, and because there is (equally) no procedure for
eliminating very unfit candidates who are under 40, this directly
discriminatory rule will not and should not survive scrutiny. [212]
213.
Method C is to say that candidates over 40 may
apply but will have to demonstrate that they are sufficiently fit to be
recruited. After reflection and in order to avoid any suggestion that it is, in
reality, discriminating directly on grounds of age, the fire service adds a
clause to the advertisement reserving the right to require any candidate
about whose fitness level it has doubts to demonstrate – like the would-be
candidates that are over 40 – that he or she is fit enough to be recruited.
214.
This is a lot more subtle than method B. The fire service
can point – very plausibly – to the need for its recruits to be physically fit.
But the devil lies in the detail.
215.
It is perfectly possible to imagine a fitness test that is
set at a level and incorporates elements that are, objectively, both
appropriate and proportionate: a test that (in fact) reflects both the
requirements of the job and the average fitness level of current serving
firemen and the younger recruits. A recruitment process incorporating such a
test, in which the test is applied both to candidates over 40 and
to candidates under 40 who do not appear to be fit enough [213]
will be objectively justifiable, so no indirect discrimination on grounds of
age will have taken place.
216.
It is, however, also possible to imagine ways of setting
that fitness test that would in practice succeed in excluding all
candidates over 40, including candidates who – objectively – possessed
perfectly adequate levels of fitness to be recruited into the fire service as
active firemen. If it incorporates that kind of a fitness test, Method C will
indeed result in indirect discrimination against candidates over 40 – but that
will emerge only if the actual detail of the recruitment arrangements is
subjected to proper scrutiny.
217.
Method C also reveals just how fine the dividing line
is between the conceptual categories of direct and indirect discrimination.
Absent the (additional) provision empowering the fire service to require any
candidate about whose fitness level it has doubts to demonstrate that they are
fit enough to be recruited, the recruitment arrangements under Method C would
(still) have discriminated directly on grounds of age.
218.
If, therefore, we are to ensure that the way in which
indirect discrimination is assessed does not allow suspect practices to get
through, it follows that close and rigorous scrutiny must be applied to all
three aspects of the test for justification. That test, as laid down in Article
2(2)(b)(i) of Directive 2000/78, is as follows: ‘…indirect discrimination shall
be taken to occur where an apparently neutral provision, criterion or practice
would put persons having a particular [protected characteristic] at a
particular disadvantage compared with other persons unless: (i) that provision,
criterion or practice is objectively justified by a legitimate aim and the
means of achieving that aim are appropriate and necessary’. To these three
aspects I now turn.
‘Objectively
justified by a legitimate aim’
220.
When an employer proffers, as justification for an
employment policy that adversely affects observant Muslim women, the statement
that, for the purposes of its business, it ‘wishes to maintain a policy of
(more or less strict) neutrality’, what is the level of scrutiny to be applied?
Should we ask the general question, ‘does that seem, prima facie, like a
plausible policy to want to pursue?’ and, if the answer to that question is
affirmative, tick the box and close that part of the analysis without more ado?
Or should we go on to ask whether that is really a legitimate aim as applied by
this particular employer to all parts of its business and/or to these
particular posts within its business?
221.
I recall that as a Western democratic society acting through
the medium of the EU legislature, we have decided that we wish to have on the
statute book a measure (Directive 2000/78) specifically aimed at prohibiting
discrimination in employment on a number of specified grounds. Against that
background, I consider that the correct approach must be not to stop at
the level of the general question, but rather to go on to ask more detailed and
searching questions as to the legitimacy of the employer’s aim in promulgating
the measure in question. I respectfully point out that Article 2(2)(b)(i) of
the directive requires not only that there be a legitimate aim but that that
aim be ‘objectively justified’.
222.
I should perhaps add at this point that I do not think that
the category of ‘measures objectively justified by a legitimate aim’ is
necessarily coterminous with, and limited to,
‘measures objectively justified by a legitimate aim as expressly
embodied in a right identified in the Charter’. I do not exclude the
possibility that there may be legitimate aims that do not find such an echo in
the Charter.
223.
Thus, in Case C-341/19 MH Müller Handels, I would for
my part recognise that an employer may legitimately desire – as the appellant
in that case does, advancing this as its principal justification for its policy
of neutrality – to avoid conflicts among employees. [214] I would next wonder whether such an aim
fitted neatly within the freedom, set out in Article 16 of the Charter, to
conduct a business. If such an aim does not fit within that rubric, it seems to
me that, whilst the aim may remain legitimate, it is necessarily to be given
less weight than an employee’s right to protection for his or her religious
beliefs as enshrined in Article 10 of the Charter. If that aim is encompassed
within the rights set out in Article 16, then we are in the situation of
competing rights protected by the Charter and an appropriate balance needs to
be struck between those rights.
224.
The importance of asking more detailed and searching
questions as to the legitimacy of the employer’s aim in promulgating the
measure in question, in order to ensure that a fair balance is struck between
competing rights, is further underlined by the way in which the rule in Article
2(2) of Directive 2000/78 as to what constitutes indirect discrimination is
formulated. That rule tells us that there is an inbuilt automaticity to
the fact that the ‘neutral’ criterion has a ‘disparate adverse impact’ on a
particular group. (Indeed, if applying the neutral criterion does not
automatically generate a disparate adverse impact, there is no prima facie
case of indirect discrimination, and therefore no need to go on to consider
whether the employer has a possible justification for the measure that he has
put in place.)
(i)
What precisely is the aim pursued by the employer (if the
aim is neutrality per se, why is that legitimate)?
(ii)
Is that aim consistent with other statements this employer
has made as to his primary aims and objectives (if neutrality is being pursued
to further some (other) primary aim, how or why does that make neutrality
itself a legitimate aim)?
(iii)
Does pursuit of that aim potentially create a disparate
adverse impact upon an identifiable group of employees leading to potential
indirect discrimination on one of the prohibited grounds?
(iv)
If so, does this employer have a specific and legitimate
reason for its stated aim?
(v)
Is the stated aim a legitimate aim for this employer to hold
in respect of its business as a whole?
(vi)
If not, is the stated aim a legitimate aim for this employer
to hold in relation to the particular post(s) to which this complaint relates?
‘The means of
achieving that aim are appropriate’
228.
In WABE, the Court is told by the referring court
that the child day care centre follows the Hamburg recommendation, [215] which states in terms that:
‘All child day
care facilities have the task of addressing and explaining fundamental ethical
questions as well as religious and other beliefs as part of the living
environment. Child day care centres therefore provide space for children to
consider … the question of God. …. The possibility of looking at these
questions in a curious and inquisitive manner leads to the consideration of
subjects and traditions of the religious and cultural orientations represented
in the group of children. This develops appreciation and respect for other
religions, cultures and beliefs. This consideration increases the child’s
self-understanding and experience of a functioning society. The children also
experience and actively contribute to religiously rooted festivals in the
course of the year. By encountering other religions, children experience
different forms of reflection, faith and spirituality’.
229.
If WABE is following the Hamburg recommendation, it
necessarily follows that its primary aim must be to provide child day care
facilities that fulfil the objectives set out in that recommendation. That
being so, it seems to me that the appropriateness of its policy of neutrality
falls to be assessed by reference to that primary aim. Further material, over
and above what is before the Court, would be required to make good an argument
that ‘neutrality’ was, for some different reason, itself a free-standing and
legitimate aim. (Here, as elsewhere, I emphasise that these are of course
matters on which it is for the national court, as sole judge of fact, to
adjudicate.)
230.
Yet WABE’s ‘instructions on observing the requirement of
neutrality’ [216]
state, inter alia, that:
·
‘Employees shall not make any
political, ideological or religious statements to parents, children and third
parties in the workplace’ (so, for example, a Christian cannot make the
(neutral) statement, in answer to a question from a child, that his religion
centres on the belief that Jesus Christ is the son of God and was sent by God
into the world as the Saviour);
·
‘Employees shall not wear any signs of
their political, ideological or religious beliefs that are visible to parents,
children and third parties in the workplace’ (so, irrespective of whether
mandated religious apparel is an integral part of religious practice in a given
non-Christian religion, it may not be worn by employees who practise that
religion);
·
‘Employees shall not adopt any
practices reflecting those beliefs in the workplace when in the presence of
parents, children and third parties’ (so, for example, a Christian, a Muslim or
a Jew may not murmur a grace before eating, notwithstanding the fact that all
three religions regard food as a gift from God for which a believer should
express thanks).
233.
Take the idea a step further if you will. Dare to imagine
giving the staff permission to practise their religion at the workplace
– I emphasise: to practise their religion, not proselytise for
their religion. Let us (for example) allow them to wash their hands ritually
before eating; or to say a grace before, or a thanksgiving after, a meal. (The
Hamburg recommendation envisages, after all, that the children will
‘experience’ religiously rooted festivals and ‘encounter’ other religions –
something that may perhaps be a little difficult to achieve convincingly if,
under the child day care centre’s ‘instructions on observing the requirement of
neutrality’, employees ‘may not adopt any practices reflecting those beliefs in
the workplace when in the presence of parents, children and third parties’.)
Again to be (very) clear: the teachers (and other staff) would not be instructing
the children to conduct themselves in a particular way in order, like their
teacher, to obey the precepts of a particular faith. They would simply be
complying with their own religious requirements and manifesting their own
religious beliefs.
236.
Whilst it is (again) ultimately a
matter for the national court to decide, I should note that in MH Müller
Handels, where the employer’s stated aim is to ‘avoid conflicts among
employees’, an obvious question to ask would be whether the potential problem
cannot be addressed adequately by promulgating internal rules that enjoin
employees to treat each other’s personal beliefs (including ideological,
philosophical and religious beliefs) with respect and not to engage, within the
workplace, in discussions that will inflame passions on those topics. Prima
facie, such internal rules might appear to be a more appropriate means of
achieving the employer’s stated aim.
(i)
On what precise basis does the employer submit that the
particular provision, criterion or practice that it has put in place represents
an appropriate means of achieving that aim?
(ii)
Did the employer consider other means of achieving that aim,
particularly other means (if such exist) that would not have resulted in a
disparate adverse impact on a particular group of employees on the basis of one
of the prohibited grounds?
(iii)
If not, why not?
(iv)
If so, why were those other means rejected?
‘The means of achieving that aim are necessary’ (i.e., the
proportionality test)
238.
I begin with some general observations which may appear
simple. I make no apology for doing so. As the academic discussion [217] following the Court’s rulings in G4S Secure Solutions
and ADDH and the references from the national courts in the present two
cases have shown, the Court now needs to clarify and amplify its guidance for
employers and national courts as to justification in general, and this part of
the assessment of justification in particular.
239.
First, in the present context, proportionality is
essentially about balancing competing rights. Under Directive 2000/78,
employees have a right not to be discriminated against in the employment market
on any of the prohibited grounds: a right that reflects the more generally worded
protection against discrimination to be found in Article 21 of the
Charter. In respect of some of those
grounds – such as religion – the rights conferred by the directive are
complemented, at a higher level, by other specific Charter rights (here,
Article 10). These have to be set against the employer’s freedom (articulated
in Article 16 of the Charter), ‘to conduct a business in accordance with Union
law and national laws and practices’. I pause to observe that that freedom is conditional
upon respecting applicable EU and national law. It is not an unfettered right
to run a business in the way that the employer deems will be most profitable to
him, still less a right whose wording shows that it is intended to take
automatic precedence over other, competing rights.
240.
Second, as I have already indicated, [218] I
do not think that it is appropriate to the exercise that the Court of Justice (and
the national courts, in individual cases) must conduct to think in terms of
applying one Charter article (such as Article 21) to the exclusion of other
relevant articles (such as Articles 10 and 16). Such an approach, like putting
blinkers on a horse, risks obscuring the presence, importance and relevance of
dicta relating to the proper understanding of the competing rights here in
play. Rather, what is now needed is a genuine balancing of competing rights,
with clear guidance for employers and national courts. Against the background
of all the relevant material, the Court must now lay down the necessary
guiding principles to enable the latter (the ‘EU law courts’ that are closest
to the citizen) to understand the parameters within which they should operate
and what the tools are that they should bring to bear when analysing the
detailed facts of each individual case that comes before them.
241.
Third, the only context in which Directive 2000/78 speaks of
the employer’s obligations towards an employee being limited to ‘reasonable
accommodation’ is that of Article 5 (entitled ‘reasonable accommodation for
disabled persons’). In that specific context alone, the employer is
required to ‘take appropriate measures, where needed in a particular
case, to enable a person with a disability to have access to, participate in,
or advance in employment, or to undergo training, unless such measures would
impose a disproportionate burden on the employer’. There (and there
alone) the directive accepts that there may be discrimination where not to
discriminate would impose a disproportionate burden on the employer. [219]
242.
It follows that, outside that specific context, the
proportionality test that applies is the ‘classic’ proportionality test, as
briefly mentioned at paragraph 42 of G4S Secure Solutions: ‘… it must be determined whether the prohibition is limited
to what is strictly necessary’.
To expand on that slightly, assuming that the employer has demonstrated
that its aim is legitimate and that the means (the provision, criterion or
practice) that it has put in place to achieve that aim are appropriate, the
employer still has to demonstrate that the resulting restrictions imposed on
the employee (restrictions that, by definition, interfere with that employee’s
protected rights) do not go beyond what is strictly necessary. The issue here
is therefore not whether accommodating the employee’s practice or
manifestation of his or her religion is tedious or troublesome or burdensome
for the employer. It is whether the employer can show that, in order to attain
a legitimate aim by an appropriate means, he is interfering with a protected
right only to the extent strictly necessary.
243.
In that respect, I am extremely sceptical as to
whether an approach that would consist of moving any hijab-, dastar- or
kippah-wearing employee of enterprise X who is not simply dismissed into a back
office, safely locked away from any contact with customers (and probably also,
given most corporate promotion structures, thereby placed at a significant and
continuing disadvantage in terms of career path) is what the EU legislature had
in mind when formulating Directive 2000/78. It seems to me better to take the directive
at face value and to suppose that its objective was indeed to address and
combat discrimination on one of the prohibited grounds in relation to
employment generally. [220]
Indeed, the former approach seems to me to come into direct conflict with the
observations of the Strasbourg Court in the Eweida case. [221]
244.
In my Opinion in ADDH, I advanced some suggestions as
to how – in the course of a civilised discussion between employer and employee
– both sides might need to make adjustments in order to find a fair balance
between, on the one hand, the employee’s desire to practise his or her religion
and, on the other hand, the employer’s desire to conduct his business
efficiently and profitably. [222] I venture to bring that discussion to the
Court’s attention here. Sometimes restrictions on absolute freedom of religious
expression will either be uncontroversial or perceived as relatively
unimportant by the employee concerned; and the employer’s right under Article
16 of the Charter will take precedence. Where the wearing of mandated religious
apparel is concerned, however, that is unlikely to be the employee’s position.
245.
I therefore suggest that, when considering whether the means
that the employer has put in place do not go beyond what is strictly
necessary to achieve the aim pursued, the national court should ask the
following sequential questions (again, bearing in mind that the burden of proof
for showing that the means are proportionate and do not go beyond what is
strictly necessary lies with the employer who wishes to avail himself of the
justification defence): [223]
(i)
On what precise basis does the employer submit that the
particular provision, criterion or practice that it has put in place represents
what is strictly necessary to achieve that aim?
(ii)
Did the employer consider other means of achieving that aim,
particularly other means (if such exist) that would either not have resulted in
a disparate adverse impact on a particular group of employees on the basis of
one of the prohibited grounds, or that would have had a lesser adverse effect
upon their protected rights?
(iii)
If not, why not?
(iv)
If so, why were those other means rejected?
(v)
Did the employer specifically consider whether there might
be ways of nuancing or modifying the chosen means (once selected) that would
mitigate the adverse effect upon that group of employees (and if so, what was
the outcome)?
(vi)
If not, why not?
An illustration: indirect discrimination and its
justification
246.
Again, it may be helpful to our understanding of the points
of principle that I have outlined above to look at an actual example. For the
sake of simplicity, I shall borrow an old illustration from discussions about
sex discrimination: setting a minimum height requirement for policemen.
248.
Statistically, the minimum height rule will predictably
produce a disparate adverse impact on potential female recruits to the police
force; and also on certain ethnic and/or racial male groups. It is therefore,
in principle, a measure that discriminates indirectly against those categories.
249.
Let us therefore move on to justification. Why does the
police force say that it needs a minimum height requirement?
250.
The original justification that is advanced (perhaps,
now, a slightly old-fashioned justification) is, ‘We need our police to be
physically imposing. They have to be big enough to be able to look after
themselves in a fight and (aided by a uniform that includes a tall helmet) to
be easy to locate in a crowd’.
252.
Now let us try a different way of thinking. What happens if
we change the aim? For example, suppose that we re-define how we want policing
to operate.
253.
The new justification that is put forward identifies
a new, more up-to-date aim. ‘We want our police to be representative of the
community that they serve; and that community is (increasingly) diverse. Above
all, we do not want the public [our “customers” or “clients”, in the new
jargon] to have an “us-and-them” mentality’.
254.
Suddenly, everything looks different.
255.
The new aim is praiseworthy and legitimate. However, it is
impossible to see how requiring all police officers to be taller than X cm
corresponds to or helps to achieve that new aim. The neutral measure that had a
disparate adverse impact is no longer either appropriate or proportionate –
just the reverse.
256.
To that it might of course be observed that some of the
recruits may be shorter than the original (but now abandoned) height
requirement. Some of them may also be observant Muslim women who wear the
hijab. I suggest that the sensible answer to that would be for the authorities
to set about designing a uniform hijab that these women can wear. [224]
Applying those principles
258.
Thus, in both those judgments, the Grand Chamber underlined
the key role played by the national court. It emphasised that, as sole
judge of fact, the national court bore the responsibility for assessing the
particular facts of the case before it. [225]
It required the national court to subject the explanations advanced by the
employer as justification for his conduct in not hiring a potential employee (Egenberger)
or in dismissing an existing employee (IR) to careful, detailed and
rigorous scrutiny. [226]
The Court adopted a similarly rigorous approach, in the context of Directive
2000/43 and discrimination on racial or ethnic grounds, in its judgment in CHEZ
Razpredelenie Bulgaria.
259.
In both Egenberger and IR, the employer was
claiming that it should be given very broad latitude to apply its religious
philosophy within its employment policy. The Court unequivocally rejected that
approach, holding that the employee’s employment rights were deserving of
better protection. Therefore, the precise, alleged, ‘inevitable’ connections
between the employee, the exact post (to be) occupied and the religious
stipulations in question should be put under the microscope. [227]
The employer could not rely upon a generic assertion that, because it
was a ‘religious’ employer, it should be given free rein to apply its religious
criteria in matters affecting the employment rights of potential or existing
employees.
An enlarged definition of direct discrimination?
262.
One possible solution would be to ask whether our
understanding of what constitutes direct discrimination needs adjusting.
263.
Thus, a possible approach might be to say that, where an
employer imposes a criterion that he either knows or ought reasonably to have
known will inevitably place a member of a particular group in a less favourable
position on the basis of any of the grounds referred to in Article 1 of
Directive 2000/78, that should be assimilated to treating that person less
favourably than another in a comparable situation on the basis of a prohibited
ground for the purposes of Article 2(2)(a) of that directive (direct
discrimination). I suggest that the dicta from CHEZ Razpredelenie Bulgaria
that I have cited earlier [228]
provide some support for such an approach.
265.
In this connection, ‘neutrality’ that in reality predictably
denies employment opportunities to particular, very clearly identifiable,
minority groups is false neutrality. It might more accurately be termed
‘negative neutrality’ because its effects on employees’ rights and the
diversity of the workforce are indeed negative. Such negative neutrality should
be contrasted with the kind of liberalising neutrality that permits and
welcomes diversity [229]
(the ‘unity in diversity’ that is, indeed, the motto of our European Union and
that is enshrined in Article 22 of the Charter), which might be termed
‘positive neutrality’.
A word about
triple discrimination
268.
The Court does not have sufficient material, from the facts
narrated to us by the two national courts, to enter into any kind of detailed
analysis. It is almost trite to observe that it is entirely possible for a
person to belong simultaneously to several groups that might be discriminated
against on the basis of one of the prohibited grounds: for example, a black
Ethiopian Orthodox male Jew wearing a kippah; a female Chinese Taoist; a
‘foreign-looking’ male Sikh in his dastar; or indeed an ‘Arab-looking’ female
observant Muslim wearing a hijab.
269.
It is also a matter of general knowledge that healthcare,
work as a care-giver and work in education (particularly at kindergarten and
primary school level) are traditional female areas of employment, partly
because motherhood provides of itself a quasi-automatic level of on-the-job
training for entry into these sectors; and that many general retail jobs as
sales assistants and cashiers are also performed by women. If and to the extent
that a female job-seeker comes from an immigrant community and has perhaps had
little opportunity to acquire very elaborate professional qualifications, it
may plausibly be supposed that all these are sectors in which she may seek
employment. If employers in these sectors impose ‘neutral’ rules (such as ‘no
head coverings at work’), such rules may in reality create serious disadvantage
for such potential employees.
The
scope for a Member State to grant or maintain additional protection
272.
First, we are here talking about a directive rather than a regulation;
and that generally tends, in principle, to connote a greater degree of freedom
and flexibility for the Member States. Article 288 TFEU emphasises this
distinction when it reminds us that ‘A regulation shall have general
application. It shall be binding in its entirety and directly applicable in all
Member States’; whereas a directive ‘shall be binding, as to the result to be
achieved, upon each Member State to which it is addressed, but shall leave to
the national authorities the choice of form and method’. It would therefore be
contrary to the normal pattern of EU law to read such an enabling clause in a
directive more restrictively than the reading afforded very recently by
the Grand Chamber to a similar enabling clause in a regulation.
273.
Second, Article 8 of Directive 2000/78 contains two distinct
components, each of which – necessarily – envisages that, in consequence, the exact
level of protection afforded to the principle of equal treatment may vary from
one Member State to another across the European Union. Both deserve our
scrutiny.
274.
Article 8(1) states that ‘Member States may introduce or
maintain provisions which are more favourable to the protection of the
principle of equal treatment than those laid down in this Directive’. Thus, Member
States are both free to preserve existing legislative arrangements – at
whatever level within the hierarchy of national law these may exist – that
provide enhanced protection and to decide that they wish to introduce
additional protection. (It was – precisely – the introduction of additional
protection (there, for animal welfare), over and above the uniform level of
protection provided under Regulation No 1099/2009, that was the bone of
contention in Centraal Israëlitisch Consistorie
van België and Others.)
275.
Article 8(2), for its part, contains a strongly-worded
standstill clause: ‘The implementation of this Directive shall under no
circumstances constitute grounds for a reduction in the level of protection
against discrimination already afforded by Member States in the fields covered
by this Directive’. [230] Thus,
Article 8(2) ‘freezes’ existing levels of protection (which may, of course, be
disparate) as the irreducible minimum below which protection may not fall.
True, the standstill is expressed to be in terms of ‘the implementation of this
Directive’. However, it would – I suggest – be counter-intuitive to read
Article 8(2) as meaning that, whilst a Member State could not choose to
implement Directive 2000/78 in a way that reduced existing levels of protection,
the terms of the directive itself, properly construed, could somehow
legitimately generate such a result.
276.
Third, the power reserved to the Member States by Article
8(1) is a power to give additional protection to the principle of equal
treatment laid down in Directive 2000/78. But that principle of equal treatment
does not exist in a vacuum. As the directive itself tells us in Article 2(1),
‘the “principle of equal treatment” shall mean that there shall be no direct or
indirect discrimination whatsoever on any of the grounds referred to in Article
1’. It therefore necessarily follows, in terms of substance, that additional
protection can be granted in order better to combat discrimination based on any
one – or on several – of the prohibited grounds listed in Article 1.
277.
Conversely, Article 8(1) does not provide a valid
legal basis for a Member State to give additional protection to some other,
extraneous right that falls outwith the listed grounds – such as the freedom to
conduct a business. Accordingly, whilst Article 8(1) may indeed be used in
order to give employees enhanced protection of their right to equal treatment
by protecting them better against direct or indirect discrimination on any of
the prohibited grounds, it may not be used by a Member State in order
(for example) to justify striking a more ‘business-friendly’ balance between
the rights of the employer and the rights of the employee than that foreseen by
the directive.
278.
Thus, to the extent that the Basic Law grants enhanced
protection to freedom of religion, it would in principle be capable of being
covered by Article 8 of Directive 2000/78. However, should the case-law
interpreting that provision include elements that allowed an employer to reduce
the level of protection below that guaranteed by the directive, reliance
on that case-law would be excluded by the express wording of Article 8(1):
‘Member States may introduce or maintain provisions which are more
favourable to the protection of the principle of equal treatment …’. [231] [232]
279.
I should next recall the principle established by the Court
in paragraph 29 of its judgment in Åkerberg Fransson:
‘… in a
situation where action of the Member States is not entirely determined by
European Union law … national authorities and courts remain free to apply
national standards of protection of fundamental rights, provided that the level
of protection provided for by the Charter, as interpreted by the Court, and the
primacy, unity and effectiveness of European Union law are not thereby
compromised …’
Suggested
answers to the questions raised by the national courts
282.
In most of the Opinions that I have delivered, I have
combined the analytical sections with the proposed answers to the specific
questions referred. Here, I have chosen instead first to present my analysis of
the various aspects of the complex problem that has led the national courts to
make these references. I shall now turn – finally and relatively briefly – to
explain how, in the light of that extended analysis, I suggest that the Court
should re-frame and answer the specific questions put to it by the national
courts. In so doing I shall, so far as possible, avoid repetition. It should be
(relatively) obvious from the individual analytical sections earlier in this
Opinion why I reach the conclusion that a given question should be answered in
a given way. For that reason, the answers proposed are underpinned by reasoning
in shorthand rather than in extenso.
Case C-341/19 MH Müller Handels
283.
By its first question, the national court essentially
asks whether, in order to be valid, a ban on wearing signs must prohibit all
forms of signs and not merely prominent or large ones.
284.
I have spent some time earlier in this Opinion analysing in
detail the exercise that, in my view, the national court is required to carry
out before concluding that any ban (whether total or partial) on the
wearing of visible signs of religious beliefs is objectively justified and
that, in consequence, there is no breach of the principle of equal treatment
protected by Directive 2000/78. [233] I have also explained earlier [234]
why a partial, rather than a total, ban on visible signs of religious beliefs
may create additional pitfalls and difficulties.
285.
Accordingly, I consider that the first question in Case
C-341/19 MH Müller Handels should be answered to the effect that Article
2(2) of Directive 2000/78 is to be interpreted as requiring a national court, when
evaluating an internal rule of a private undertaking that prohibits the wearing
of visible signs of religious, political or other ideological beliefs, to
subject any justification advanced by the undertaking for such a ban to strict
scrutiny, irrespective of whether that rule bans the wearing of any visible
such signs (a total ban) or only such signs as are prominent and large-scale (a
partial ban). In accordance with Article 10(1) of Directive 2000/78, the burden
of proof for showing that such a ban does not breach the principle of equal
treatment lies with the respondent employer. In conducting that evaluation, the
national court should bear in mind the possibility that a partial ban may lead
to additional discrimination as between adherents to different religious
beliefs and/or that it may give rise to uncertainty as to its precise scope and
effect.
286.
The second question referred is in two parts. In part (a), the
national court enquires whether rights arising under Article 10 of the Charter
and Article 9 of the Convention may be taken into account in an analysis of
restrictions under Directive 2000/78. In part (b), it asks whether national
rules of constitutional status may represent more favourable measures for the
purposes of Article 8(1) of Directive 2000/78.
287.
As to part (a) of the second question, it will be clear from
my conclusion as to the first issue discussed under ‘Two keys to the kingdom’ [235] that
I consider that the rights protected by Article 10 of the Charter and Article 9
of the Convention must necessarily be taken into account (together with
the employer’s competing rights under Article 16 of the Charter) when analysing
restrictions placed upon the principle of equal treatment in employment.
288.
It may be objected that, in G4S Secure Solutions,
Article 16 enters the equation only during the analysis of the employer’s
justification of the legitimacy of its restriction. But that is to miss the
essential point of Directive 2000/78. In enacting that directive to combat
discrimination on any of the prohibited grounds, the EU legislature built certain
rights into the very principle of equal treatment (here, the right to
religious freedom). It is therefore conceptually impossible to disregard those
rights at any stage of the analysis under Directive 2000/78.
289.
I therefore consider that the answer to part (a) of the second
question should be that, when examining any alleged violation of the principle
of equal treatment set out in Article 2(1) of Directive 2000/78 in respect of
religion as a prohibited ground of discrimination listed in Article 1 thereof, Article
2(2) requires the rights derived from Article 10 of the Charter and Article 9
of the Convention to be taken into account.
290.
So far as part (b) of the second question is concerned, I
have discussed this issue above (under the heading ‘The scope for a Member
State to grant or maintain additional protection’). [236] For the reasons there given, I consider that part
(b) of the second question should be answered to the effect that, since
Directive 2000/78 does not effect a complete harmonisation of the relevant
rules of EU law, national rules of constitutional status that protect freedom
of religion may be taken into account as more favourable provisions within the
meaning of Article 8(1) of that Directive, provided
that the level of protection provided
for by the Charter, as interpreted by the Court, and the primacy, unity and
effectiveness of European Union law are not thereby compromised.
291.
By its third question, the national court asks whether, if
question 2(a) and (b) are both answered in the negative, national rules of
constitutional status which protect freedom of religion must be set aside even
though Article 16 of the Charter recognises ‘national laws and practices’.
292.
Since I have suggested that both parts of question 2 should
be answered in the affirmative, it becomes unnecessary to answer question 3.
293.
For the sake of completeness, I add two brief comments.
294.
First, since the text of Article 16 of the Charter expressly
states that the exercise of the freedom to carry on a business must be ‘in
accordance with’ Union law and national laws and practices, it follows that the
employer’s right under Article 16 may be overridden by other, competing rights
that are reflected in Union law or in national law and practice. [237]
295.
Second, given that Directive 2000/78 is not a measure of
total harmonisation, [238]
national laws and practices may be applied provided that the test enunciated in
paragraph 29 of Åkerberg Fransson is respected. For the reasons that I have
just recalled in answering part (b) of question 2, I consider that it is
permissible to have regard to such national laws and practices provided that
they do not reduce the level of protection afforded to the principle of
equal treatment.
Case C-804/18 WABE
296.
I note that as well as asking about direct discrimination on
grounds of religion, the national court has enquired whether WABE’s instruction
to I.X. constitutes indirect discrimination on grounds of both gender and
religion. However, it has not in fact cited any provision of EU law in its
question that bears on discrimination on the basis of gender. I add that the
material before the Court, whilst it may certainly give rise to concerns as to
the possibility not only of ‘double discrimination’ (on the basis of religion
and gender) but indeed of triple discrimination (on the basis of religion and
gender and ethnic origin), is inadequate to enable the Court to apply any
rigorous analysis to those issues. In particular, there are no findings of fact
in the order for reference that would provide a solid basis for such an analysis. [239]
297.
In order to be of the greatest assistance to the referring
court, I therefore suggest that the Court should reformulate the questions
referred in the following way:
Question
1:
Does a
unilateral instruction from an employer prohibiting the wearing of any visible
sign of political, ideological or religious beliefs constitute discrimination
on the ground of religion, within the meaning of Article 2(1) and Article 2(2)
of Directive 2000/78, against employees who consider that they are obliged to
wear mandated religious apparel, such that, in accordance with Article 10(1) of
Directive 2000/78, the burden of proof thereupon shifts to the employer to
advance objective justification or other lawful excuse for such an instruction?
Question
2:
Can an
employer’s desire to pursue a policy of political, ideological and religious
neutrality in order to accommodate the perceived wishes of his customers render
such a unilateral instruction either objectively justifiable under Article
2(2)(b) or capable of characterisation as a genuine and determining occupational
requirement under Article 4(1) of Directive 2000/78?
Question
3:
Having regard
to Article 8(1) of Directive 2000/78, does Article 2(2) thereof and/or the freedom
to conduct a business laid down in Article 16 of the Charter preclude a
national court from applying a rule of national constitutional law which affords
enhanced protection to the fundamental right of freedom of religion?
298.
So far as question 1 is concerned, I have explored above the
possibility of enlarging the definition of direct discrimination. [240]
I have also suggested that, in relation to employees who regard themselves as
obliged to wear mandated religious apparel, such an instruction constitutes
direct discrimination [241]
and explained why in any event it produces a disparate adverse impact upon
observant Muslim women who consider themselves obliged, in order to ‘defend
their modesty’, to wear mandated religious apparel (and upon adherents of other
faiths who consider themselves similarly obliged to regulate their attire in
accordance with mandatory religious rules). [242]
299.
In my view, the answer to question 1 as reformulated is
therefore plainly ‘yes’.
300.
It follows that, in accordance with Article 10(1) of
Directive 2000/78, the burden of proof would then shift to the employer, either
to advance some objective justification under Article 2(2)(b) or to point to
some other ‘lawful excuse’, in the shape of another provision of Directive
2000/78 that permitted him to retain such a rule.
302.
I do not consider that Dahlab [243] leads
ineluctably to that conclusion.
303.
First, it is trite law that the Convention is a ‘living
instrument’ [244] and that the interpretation given to its provisions by the
Strasbourg Court evolves over time, as society itself evolves. A well-known,
but nevertheless striking, example is provided by the way in which that Court’s
case-law on Article 8 of the Convention (the right to privacy and family life)
has shifted in its approach towards homosexuality. Thus, in a 1978 case
involving the prosecution of X in 1974 for homosexual acts, the European
Commission on Human Rights found no violation of Article 8 of the Convention. [245] In 1981, in Dudgeon v. The United Kingdom, [246] the Strasbourg Court held in plenary (with some dissents) that
the continued criminalisation of consensual homosexual acts in Northern Ireland
(notwithstanding that such acts had been decriminalised in England and Wales in
1967 as a result of the recommendations of the Wolfenden Report) did violate
Article 8. Seven years later, in Norris
v Ireland, [247] the Strasbourg Court (again in plenary) held that an active
campaigner for homosexual rights was a ‘victim’ and that the Irish legislation
criminalising certain homosexual acts (which was no longer being enforced)
violated Article 8: this time, the ruling was unanimous. [248]
304.
Applying the same rationale, it is clear that the Strasbourg
Court itself has already moved on from the approach that led to the decision in
Dahlab, since it was at pains to distinguish Dahlab in its Grand
Chamber ruling in Lautsi and Others v. Italy. [249] [250]
306.
Third, I again draw attention to the fact that WABE follows
the Hamburg recommendation, which focuses on creating an environment in which
children should experience diversity and encounter different religions. For the
reasons that I have set out more fully above, that necessarily undermines the argument
that neutrality is required in order to shield impressionable young minds from
encountering symbols of other religions. [251] (I again underline the distinction that I have drawn above
between practising one’s religion and proselytising for one’s religion.) [252]
308.
Accordingly, the first question (as reformulated) should be
answered to the effect that a unilateral instruction from an employer
prohibiting the wearing of any visible sign of political, ideological or
religious beliefs constitutes discrimination on the ground of religion, within
the meaning of Article 2(1) and Article 2(2) of Directive 2000/78, against
employees who consider that they are obliged to wear mandated religious
apparel. In accordance with Article 10(1) of Directive 2000/78, the burden of
proof thereupon shifts to the employer to advance objective justification or
other lawful excuse for such an instruction.
309.
The answer to the second question (as reformulated) may be
deduced in part from the Court’s judgment in ADDH, which held that the willingness of an employer to take account of the
wishes of a customer no longer to have the services of that employer provided
by a worker wearing an Islamic headscarf cannot be considered a genuine and
determining occupational requirement within the meaning of Article 4(1) of
Directive 2000/78.
310.
In my Opinion in that case, I expressed the firm
view that, ‘Where the customer’s attitude may itself be indicative of prejudice
based on one of the “prohibited factors”, such as religion, it seems to me
particularly dangerous to excuse the employer from compliance with an equal
treatment requirement in order to pander to that prejudice. Directive 2000/78 is intended
to confer protection in employment against adverse treatment (that is,
discrimination) on the basis of one of the prohibited factors. It is not about
losing one’s job in order to help the employer’s profit line’. [253] I have not changed my view since writing that
Opinion.
311.
Accordingly (and unsurprisingly), I do not
consider that a desire to accommodate one’s customers’ prejudices constitutes a
legitimate aim capable of providing objective justification under Article
2(2)(b) of Directive 2000/78 for a unilateral instruction from an employer
prohibiting the wearing of any visible sign of political, ideological or
religious beliefs. It follows from my analysis of Dahlab in points 303 to 305 above that I also do not consider that an
instruction to a female Muslim employee not to wear an Islamic headscarf (whether
expressly in those terms, or implicitly, in the guise of a general prohibition
on any visible sign of political, ideological or religious belief) may be saved
by the argument that not wearing such an ‘overt sign’ of one’s religious
affiliation constitutes a genuine and determining occupational requirement
within the meaning of Article 4(1) of Directive 2000/78.
312.
I therefore suggest that the second question (as
reformulated) should be answered to the effect that an employer’s desire to
pursue a policy of political, ideological and religious neutrality in order to
accommodate the perceived wishes of his customers cannot render such a
unilateral instruction either objectively justifiable under Article 2(2)(b) or
capable of characterisation as a genuine and determining occupational
requirement under Article 4(1) of Directive 2000/78.
313.
So far as the third question (as reformulated) is concerned,
it will be clear from the answer that I propose that the Court should give to
part (b) of the second question referred in Case C-341/19 MH Müller Handels
that I consider that Article 8 of Directive 2000/78 provides an express legal
basis for a national court to apply a rule of national constitutional law which
affords enhanced protection to the fundamental right of freedom of religion,
provided that the test laid down by the Court at paragraph 29 of Åkerberg
Fransson is satisfied.
314.
I therefore propose that the Court should answer the third
question, as reformulated, to the effect that, having regard to Article 8(1) of
Directive 2000/78, as read in the light of Articles 10 and 21 of the Charter,
neither Article 2(2) of Directive 2000/78 nor the freedom to conduct a business
laid down in Article 16 of the Charter preclude a national court from applying a
rule of national constitutional law which affords enhanced protection to the
fundamental right of freedom of religion, provided
that the level of protection provided for by the Charter, as interpreted by the
Court, and the primacy, unity and effectiveness of European Union law are not
thereby compromised.
Conclusion
315.
Accordingly, I suggest that in answer to the questions
referred by the Bundesarbeitsgericht (Federal Labour Court, Germany) (Case
C-341/19 MH Müller Handels) and the Arbeitsgericht Hamburg (Labour
Court, Hamburg, Germany) (Case C-804/18 WABE), the Court should rule as
follows:
Case
C-341/19 MH Müller Handels
(1)
Article 2(2) of Council Directive 2000/78/EC of 27 November
2000 establishing a general framework for equal treatment in employment and
occupation is to be interpreted as requiring a national court, when evaluating
an internal rule of a private undertaking that prohibits the wearing of visible
signs of religious, political or other ideological beliefs, to subject any
justification advanced by the undertaking for such a ban to strict scrutiny,
irrespective of whether that rule bans the wearing of any visible such signs (a
total ban) or only such signs as are prominent and large-scale (a partial ban).
In accordance with Article 10(1) of Directive 2000/78, the burden of proof for
showing that such a ban does not breach the principle of equal treatment lies
with the respondent employer. In conducting that evaluation, the national court
should bear in mind the possibility that a partial ban may lead to additional
discrimination as between adherents to different religious beliefs and/or that
it may give rise to uncertainty as to its precise scope and effect.
(2)
(a) when examining any alleged violation of the principle of
equal treatment set out in Article 2(1) of Directive 2000/78 in respect of
religion as a prohibited ground of discrimination listed in Article 1 thereof,
Article 2(2) requires the rights derived from Article 10 of the Charter of
Fundamental Rights of the European Union and Article 9 of the Convention for
the Protection of Human Rights and Fundamental Freedoms to be taken into
account.
(b) Since Directive 2000/78 does not
effect a complete harmonisation of the relevant rules of EU law, national rules
of constitutional status that protect freedom of religion may be taken into
account as more favourable provisions within the meaning of Article 8(1) of
that Directive, provided that the level of protection
provided for by the Charter, as interpreted by the Court, and the primacy,
unity and effectiveness of European Union law are not thereby compromised.
(3)
It is unnecessary to answer the third question referred.
Case C-804/18 WABE
(1)
A unilateral instruction from an employer prohibiting the
wearing of any visible sign of political, ideological or religious beliefs
constitutes discrimination on the ground of religion, within the meaning of
Article 2(1) and Article 2(2) of Directive 2000/78, against employees who
consider that they are obliged to wear mandated religious apparel. In
accordance with Article 10(1) of Directive 2000/78, the burden of proof
thereupon shifts to the employer to advance objective justification or other
lawful excuse for such an instruction.
(2)
An employer’s desire to pursue a policy of political,
ideological and religious neutrality in order to accommodate the perceived
wishes of his customers cannot render such a unilateral instruction either
objectively justifiable under Article 2(2)(b) or capable of characterisation as
a genuine and determining occupational requirement under Article 4(1) of
Directive 2000/78.
(3)
Having regard to Article 8(1) of Directive 2000/78, as read
in the light of Articles 10 and 21 of the Charter, neither Article 2(2) of
Directive 2000/78 nor the freedom to conduct a business laid down in Article 16
of the Charter preclude a national court from applying a rule of national
constitutional law which affords enhanced protection to the fundamental right
of freedom of religion, provided that the level of protection provided for by
the Charter, as interpreted by the Court, and the primacy, unity and
effectiveness of European Union law are not thereby compromised.
[1] This
Shadow Opinion is dedicated to the memory of Rosemary Polack (née Sands), the
wife of Ken Polack, my Tutor in Law at King’s College Cambridge (where I did my
undergraduate studies), and a very fine lawyer in her own right. I had
discussed some of the issues about wearing the hijab with Rosemary when I was
writing my Opinion in ADDH; and the resulting text benefitted greatly
from that discussion. Sadly, she died on 3 March 2021, whilst I was
completing the drafting of this follow-up to that Opinion. Ken and Rosemary
between them taught me everything that I know about being a professional lawyer
with a social conscience. May both their memories be for a blessing.
[2] It
would of course have been impossible for me to complete the work on this Shadow
Opinion on my own. I owe a considerable debt to former members of ‘team
Sharpston’ – of various vintages – who have kindly, in their spare time, helped
me over the last few months by doing research, drafting summaries of case-law,
acting as sounding boards for ideas, pointing out gaps in reasoning,
commenting, critiquing, undertaking the tedious labour of checking and
‘toilettage’ … in short, doing everything that we did whilst we were in service
together at the Court. They were adamant that I should not name them and
thank them publicly for their contribution. I should like nevertheless to pay
tribute to their professionalism, idealism and loyalty. It is a joy and a true
privilege to have worked with them, both in the past, officially, and for this
last Opinion that we shall write together as a team.
[3] Judgment
of 14 March 2017, G4S Secure Solutions (C-157/15, EU:C:2017:203);
see also Opinion of Advocate General Kokott at EU:C:2016:382.
[4] Judgment
of 14 March 2017, ADDH (C-188/15, EU:C:2017:204); see also my Opinion
in that case at EU:C:2016:553.
[5] Council
Directive 2000/78/EC of 27 November 2000 establishing a general framework
for equal treatment in employment and occupation (OJ 2000 L 303,
p. 16).
[6] I
mention at this early stage that the order for reference in WABE,
referred by the Arbeitsgericht Hamburg (Labour Court, Hamburg, Germany), was
lodged at the Court on 20 December 2018, whilst that in the MH Müller
Handels case, referred by the Bundesarbeitsgericht (Federal Labour Court,
Germany: the highest labour court in that Member State), was not lodged until
30 April 2019. The Court therefore intentionally held the WABE case back
so that it could be addressed at the same time as MH Müller Handels. For
that reason, although numerically the WABE case comes before the MH
Müller Handels case, I shall follow the Court’s logic in according a
certain precedence to the reference from the Bundesarbeitsgericht and shall
treat the cases in reverse numerical order.
[7] The
texts of Article 10(1) of the Charter and Article 9(1) of the
Convention are identical.
[8] Article 9(2)
of the Convention reads as follows: ‘Freedom to manifest one’s religion or
beliefs shall be subject only to such limitations as are prescribed by law and
are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or for the protection of the
rights and freedoms of others’. See, moreover, Article 52(1) of the Charter,
which contains a general derogation provision.
[9] Whilst
the referring court in Case C-804/18 WABE states that ‘the
interpretation of Articles 2 and 4 of Directive 2000/78/EC is relevant to
the decision to refer and is disputed between the parties’, it did not
refer a question relating to the interpretation of Article 4 of Directive
2000/78. From the material before the Court, it does not obviously appear that
the argument that not wearing a hijab (or any visible sign of political,
ideological, or religious belief) is a ‘genuine and determining occupational
requirement’ for a teacher at a child day care centre has, as such, been
advanced in the proceedings before the national court that led to the reference
in that case. For the sake of completeness, that argument is nevertheless
briefly considered – and dismissed – at points 301 to 307 and 311 below.
[10]
‘Der Arbeitgeber hat
wirtschaftliche Einbußen oder eine konkrete Gefährdung von Rechtsgütern
Dritter, die eine abweisende Entscheidung auch nach den Voraussetzungen des
Art. 4 GG rechtfertigen könnten, nach Auffassung der Kammer nicht hinreichend
substantiiert dargelegt.’
[11]
EU:C:2021:144.
[12]
‘… die Weisung, ohne auffällige
großflächige religiöse, politische und sonstige weltanschauliche Zeichen am
Arbeitsplatz zu ercheinen’.
[13]
‘Ziel der Beklagten sei es, im
Unternehmen Neutralität zu wahren. Unter anderem sollten Konflikte unter den
Beschäftigten vermeiden werden. Zu solchen Problemen, die auf die
unterschiedlichen Religionen und Kulturen zurückzuführen seien, sei es in der
Vergangenheit bereits in drei Fällen gekommen. Sie hingen nicht mit dem
Tragen eines Kopftuchs oder eines anderen religiösen Zeichens zusammen’
(emphasis added).
[14] The
referring court tells us that this recommendation (‘the Hamburg
recommendation’) was issued by the ‘Behörde für Arbeit, Soziales, Familie und
Integration’ (the city’s ‘Administration for Work, Social Affairs, Family and
Integration’) in March 2012.
[15]
Literally, in German, ‘.. tragen
… keine sichtbaren Zeichen …’ (‘… shall not wear any visible signs …’).
[16]
Literally, in German, ‘die
Mitarbeiter bringen am Arbeitsplatz keine sich daraus ergebenden Riten
gegenüber Eltern, Kindern und Dritten zum Ausdruck’.
[17] As
would automatically have happened during my service at the Court, with the
assistance of my erstwhile team I have re-checked the working English
translation of the orders for reference against the original German. Slight
clarifications have been made in consequence.
[18] See
footnote 17 above.
[19] Thus,
the Court’s judgment in ADDH records that, following
the claimant (Ms Bougnaoui’s) visit to work on-site at a customer’s premises,
‘the customer told us that the wearing of a veil, which you in fact wear every
day, had upset a number of its employees. It also requested that there should
be “no veil next time”’ (at paragraph 14
of the judgment). Given that Ms
Bougnaoui’s professional competence was unquestioned (ibid), it is
rather difficult to avoid the conclusion that the customer and/or its employees
may have had a degree of latent prejudice against a female Muslim
service-provider.
[20] Essentially,
so far as relevant to the grounds of discrimination considered in this Opinion,
those avenues for justification of direct discrimination under the directive
are: Article 2(5) (measures laid down by national law which, in a democratic
society, are necessary for public security, for the maintenance of public order
and the prevention of criminal offences, for the protection of health and for
the protection of the rights and freedoms of others), Article 4(1) (a
characteristic related to the ground of discrimination which constitutes a
genuine and determining occupational requirement by reason of the nature of the
activities concerned) and Article 4(2) (occupational activities within churches
and other public or private organisations, the ethos of which is based on
religion or belief). See further points 203 and 264 below.
[21] See
the discussion at point 201 et seq. below.
[22] For
the sake of completeness, I should add that the order for reference indicates
that IX (the applicant in WABE) may have engaged in activities
akin to proselytising outside her place of work, by placing certain
posts on her Facebook account. It will be for the national court, as sole judge
of fact, to determine whether any of that activity was carried across into the
workplace.
[23] See
points 125 to 129 below.
[24] Quotations
taken from points 29 and 30 above. See further points 228 to 234 below.
[25] Please
see point 32 of my Opinion in ADDH, where I discussed the types of head
and body religious apparel that female Muslims may elect to wear, and points 117 and 118 below.
[26] Thus,
for example, the actual questions referred speak repeatedly of ‘established
indirect unequal treatment on the ground of religion’.
[27] See
judgment of 24 February 2015, Grünewald (C-559/13, EU:C:2015:109,
paragraph 32).
[28] See
point 42 above.
[29] Not
all the ‘rights’ are listed within these two Titles. Thus, for example, the
rights of the child (Article 24), the elderly (Article 25) and
persons with disabilities (Article 26) are all to be found within
Title III (‘Equality’). I suggest that that may be because the thinking
underpinning those rights is that persons in those respective categories should
not be discriminated against or treated less well because they are children,
or old, or disabled: they too are full individuals who deserve ‘equality’ with
everyone else, nuanced only to the extent necessary to respect their particular
circumstances. A footnote is, however, emphatically not the appropriate place
to embark upon a further or more detailed structural analysis of the remaining
rights and principles contained in the Charter.
[30] Emphasis
added.
[31] Emphasis
added.
[32] Explanations
relating to the Charter of Fundamental Rights (OJ 2007 C 303,
p. 17) (‘the Explanations to the Charter’ or ‘the Explanations’).
[33] See,
for example, judgment of 8 July 1999 in Ceylan v. Turkey
(CE:ECHR:1999:0708JUD002355694); judgment of 11 July 2002 in Christine
Goodwin v. the United Kingdom (CE:ECHR:2002:0711JUD002895795); and judgment
of 15 January 2013 in Eweida and Others v. The United Kingdom
(CE:ECHR:2013:0115JUD004842010).
[34] See
the Vienna Declaration and Programme of Action, adopted by the World Conference
on Human Rights in Vienna on 25 June 1993.
[35] See,
for example, point 145 below in relation to the Strasbourg Court and
point 169 below for the Court of Justice.
[36] Rules
of Procedure of the Court of Justice of 25 September 2012 (OJ L 265,
29.9.2012), as amended on 18 June 2013 (OJ L 173, 26.6.2013, p. 65), on 19 July
2016 (OJ L 217, 12.8.2016, p. 69), on 9 April 2019 (OJ L 111, 25.4.2019, p. 73)
and on 26 November 2019 (OJ L 316, 6.12.2019, p. 103). Article 99 of the Rules of Procedure states
that ‘Where a question referred to the Court for a preliminary ruling is
identical to a question on which the Court has already ruled, where the
reply to such a question may be clearly deduced from existing case-law or
where the answer to the question referred for a preliminary ruling admits of no
reasonable doubt, the Court may at any time, on a proposal from the Judge
Rapporteur and after hearing the Advocate General, decide to rule by reasoned
order’ (emphasis added).
[37] See,
for example, Council Directive 84/450/EEC of 10 September 1984 relating to
the approximation of the laws, regulations and administrative provisions of the
Member States concerning misleading advertising (OJ 1984 L 250,
p. 17).
[38] An
illustration might be Council Directive 89/552/EEC of 3 October 1989 on
the coordination of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit of television
broadcasting activities (OJ 1989 L 298, p. 23).
[39] See,
for example, Directive 2011/83/EU of the European Parliament and of the Council
of 25 October 2011 on consumer rights, amending Council Directive
93/13/EEC and Directive 1999/44/EC of the European Parliament and of the
Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the
European Parliament and of the Council (OJ 2011 L 304, p. 64).
[40] Judgment
of 26 February 2013 (C-399/11, EU:C:2013:107).
[41] Judgment
of 26 February 2013 (C‑617/10, EU:C:2013:105).
[42] Judgment
of 5 December 2017 (C-42/17, EU:C:2017:936).
[43] Judgment
of 8 September 2015, Taricco and Others (C-105/14, EU:C:2015:555).
[44] Council Framework Decision 2002/584/JHA of 13 June
2002 on the European arrest warrant and the surrender procedures between Member
States (OJ 2002 L 190, p. 1).
[45] By
Council Framework Decision 2009/299/JHA of
26 February 2009 (OJ 2009 L 81, p. 24) (‘the amending
Framework Decision’).
[46] At
paragraph 40 of the judgment in Melloni.
[47] At
paragraph 41 of the judgment in Melloni.
[48] At
paragraph 43 of the judgment in Melloni.
[49] At
paragraph 46 of the judgment in Melloni.
[50] See
paragraphs 47 to 54 of the judgment in Melloni.
[51] See
paragraphs 55 to 64 of the judgment in Melloni.
[52] For
example, I had the honour of representing the Court officially at the
conference held in Riga on 24 to 25 May 2018 as part of the ceremonies to
mark the 100th anniversary of Latvia’s independence, where I presented a paper
(‘Keeping each other on our toes – a circle of mutual encouragement towards
setting high standards for fundamental rights protection’) to an audience
consisting of constitutional court judges, senior academics and colleagues from
the Strasbourg Court. It is fair to say that about 80% of the subsequent
discussion of my paper consisted of attacks, more or less thinly veiled – on
the Court’s judgment in Melloni, which many of those present regarded as little
short of an outrage. The contributions to that conference were subsequently
published as ‘The Role of Constitutional Courts In The Globalised World Of
The 21st Century’ (Riga, Constitutional Court of the Republic of Latvia,
2019) at the initiative of Prof. Dr. Ineta Ziemele, then President of the
Latvian Constitutional Court and now the Latvian judge at the Court of Justice.
[53] At
paragraph 21 of the judgment in Åkerberg Fransson.
[54] At
paragraph 27 of the judgment in Åkerberg Fransson.
[55] At
paragraph 29 of the judgment in Åkerberg Fransson. Emphasis added.
[56] See
paragraph 37 of the judgment in Åkerberg Fransson.
[57] At
paragraph 44 of the judgment in Åkerberg Fransson.
[58] At
paragraph 48 of the judgment in Åkerberg Fransson.
[59] See
paragraphs 27 and 28 of the judgment in Taricco II.
[60] See
paragraphs 29 to 42 of the judgment in Taricco II.
[61] Emphasis
added.
[62] Emphasis
added.
[63] Emphasis
added.
[64] Emphasis
added.
[65] Emphasis
added.
[66] See
point 81 above.
[67] Article 13(1)
of the Treaty establishing the European Communities authorised the European
Community to take measures against discrimination on the grounds of ‘sex,
racial or ethnic origin, religion or belief, disability, age or sexual
orientation’.
[68] Emphasis
added.
[69] Emphasis
added.
[70] Åkerberg
Fransson at paragraph 29.
[72] Literally,
‘Gate of Heaven’: a Spanish-Portuguese congregation recently established in
Creechurch Lane in the City of London after the ‘return’ of Jews to England in
1656, in premises that were the precursor of the Bevis Marks Synagogue.
[73] Thus
Chief Rabbi Jonathan Sacks, in his 2015 commentary for Bamidbar 5775 (the
portion of the Torah for Sukkot that records the giving of the Law in the
desert (‘Bamidbar’)) quoted the Pepys diary entry (which he described as ‘one
of the most amusing scenes in Anglo-Jewish history’), went on to discuss the ‘relationship built on covenant, speech and love as
concretised in the Torah’ and concluded, ‘Joy
in the celebration of that love led King David to “leap and dance” when the ark
was brought into Jerusalem, earning the disapproval of King Saul’s daughter
Michal (2 Sam. 6:
16), and many centuries later led the Anglo-Jews of Creechurch Lane to
dance on Simchat Torah to the disapproval of Samuel Pepys. When love defeats
dignity, faith is alive and well.’ (see Law as Love (Bamidbar 5775) -
Rabbi Sacks).
[74] Qur’an
24: 30-31, 24: 60, 33: 59 and 33: 53; Abdullah Yusuf Ali The Qur’an Text,
Translation and Commentary (2001) pp. 904 to 905; cited by Gray, A., ‘Religious
Freedom and Section 116 of the Australian Constitution: would a Banning of
the Hijab or Burqa be Constitutionally Valid?’ (Forum on Public Policy,
available at EJ944207.pdf (ed.gov). The author has a valuable
discussion of what ‘guarding their modesty’ may mean.
[75] See
the preliminary remarks at points 28 to 33 of that Opinion.
[76] C-336/19,
EU:C:2020:695.
[77] Freedom
of expression is protected by Article 10 of the ECHR and by Article 11 of the
Charter. The former expressly envisages, in Article 10(2), that freedom of
expression may be subject to limitations, inter alia, ‘for the protection of
the reputation or rights of others’.
[78]
The
5 Ks are five physical symbols, enjoined by Guru Gobind Singh on his followers
in 1699. They are worn by Sikhs who have been initiated into the Khalsa,
symbolising that the wearer has dedicated him- or herself to a life of devotion.
They are: Kesh (uncut hair), Kangha (a wooden comb for the hair), Kara (an iron
bracelet), Kachera (a cotton undergarment) and Kirpan (an iron dagger large
enough to defend oneself with). See further Sikhism Guide - Five Symbols
(archive.is).
[79] Such
schools thus quintessentially respect parents’ right (as recorded in Article
14(3) of the Charter) to choose a particular education for their children by
having them educated in a single-faith environment, should they wish to do so
(see also, in that connection, Articles 6(2) and 7(2) of the Basic Law). When
parents choose instead to send their children to a child day care centre
that follows the Hamburg recommendation, it may legitimately be presumed that
they are – as a minimum – content that their children should be able to
experience other religions. Indeed, they may actively desire that their
children should be exposed to an open and multi-cultural environment at a
formative time in their upbringing.
[80] I
refer elsewhere in this Opinion to police forces’ creation of ‘uniform hijabs’
in order to facilitate the recruitment of observant female Muslim officers (see
point 256 below and footnote 224); and my earlier Opinion in ADDH references the way in which Sikh barristers before the courts
of England and Wales have adopted the wearing of a sacred white dastar in place
of a barrister’s wig (at footnote 13 to the Opinion).
[81] It
is significant that whilst Article 15(1) of the Convention allows the High
Contracting Parties to derogate from the Convention’s requirements ‘in time of
war or other public emergency threatening the life of the nation’,
Article 15(2) states in terms that ‘No derogation from Article 2 [the
right to life], except in respect of deaths resulting from lawful acts of war,
or from Articles 3 [prohibition on torture or degrading treatment], 4
(paragraph 1) [prohibition on slavery or servitude] and 7 [no punishment
without law] shall be made under this provision’. The right to life thus forms
one of the essential ‘core’ of protected rights.
[82] See
judgment of 17 December 2020, Centraal Israëlitisch Consistorie van België
and Others (C-336/19, EU:C:2020:1031).
[83] Council Regulation (EC) No 1099/2009 of
24 September 2009 on the protection of animals at the time of killing
(OJ 2009 L 303, p. 1).
[84] Article 4(1)
of Regulation No 1099/2009.
[85] Article
4(4) of Regulation No 1099/2009.
[86] See
paragraph 12 of the judgment. The detailed reasoning behind the Flemish decree
is recorded at paragraph 13 thereof. I do not attempt to analyse here the
precise theological reasoning behind the rules on ritual slaughter in the two
religions. Nor do I explore the extent to which different strands of either
Judaism and Islam might be able, under religious law, to accommodate such a
pre-stunning requirement, save to say that for Conservative Judaism, it is
permissible. See ‘A Stunning Matter’ (YD 27.1.2001a) by Rabbi Mayer Rabinowitz PhD
(associate professor emeritus of the Jewish Theological Seminary), full text
available at: https://www.rabbinicalassembly.org/sites/default/files/assets/public/halakhah/teshuvot/19912000/rabinowitz_stunning.pdf.
[87] See
Genesis 17:9-14.
[88] Article 26 of Regulation No 1099/2009 (entitled
‘Stricter national rules’), expressly states in Article 26(2)(c) that ‘Member
States may adopt national rules aimed at ensuring more extensive protection of
animals at the time of killing than those contained in this Regulation in
relation to the following fields: … (c) the slaughtering and related
operations of animals in accordance with Article 4(4)’. Article 26(4) then
carefully ring-fences that right so as to ensure that its exercise does not
jeopardise either the smooth functioning of the single market or, indirectly,
freedom of religion by providing that ‘A Member State shall not prohibit or
impede the putting into circulation within its territory of products of animal
origin derived from animals that have been killed in another Member State on
the grounds that the animals concerned have not been killed in accordance with
its national rules aimed at a more extensive protection of animals at the time
of killing.’
[89] Point
1 of the operative part of the judgment, emphasis added. In so ruling, the
Court thus left open the question whether, either in Belgium or in another
Member State, there might be provisions of national (constitutional)
law, as interpreted in national case-law, that would preclude the adoption of
such a measure. Its ruling was concerned exclusively with whether that measure
was precluded by a specific provision of EU law.
[90] See
points 23 and 24 above.
[91] The
Second Vatican Council (Vatican II) was held between 1962 and 1965. Examples of
the changes that followed Vatican II would be the rules for fasting and
abstinence, the rules regulating mixed marriages and the participation of lay
persons (notably and particularly women) in ritual during Mass.
[92] Emphasis
added.
[93] See
points 4 and 66 above respectively.
[94] See
point 167 below.
[95] Decision
of 15 February 2001 (CE:ECHR:2001:0215DEC004239398).
[96] The
children in question were aged between four and eight.
[97] It
appears from the case report that ‘… the matter has caused a stir among the
public, [Ms Dahlab] has given numerous interviews and the Grand Council
[cantonal parliament] has passed a resolution along the same lines as the
decision taken by the cantonal government …’ (at p. 4 of the report, citing the
judgment of the Swiss Federal Court, emphasis added). The report also records (at
p. 1) that ‘After a period of spiritual soul-searching, [Ms Dahlab] abandoned
the Catholic faith and converted to Islam’.
It is unclear whether, in wearing her hijab, [Ms Dahlab] wished to go
beyond simple respect for the rules of her new religion and there does not seem
to have been any detailed investigation of the question whether Ms Dahlab was
in fact proselytising (see further point 168 below). I argue elsewhere in this Opinion that
there is a strict dividing line between the expression of one’s religious faith
(which is protected by both the Convention and the Charter) and proselytising,
which an employer may legitimately prohibit in the workplace. See points 125 to 129 above.
[98] Judgment
of 18 March 2011 (CE:ECHR:2011:0318JUD003081406).
[99] The
Second Section, applying Dahlab, had (unanimously) found a violation of
the Convention. For an extended analysis, see Puppinck, G. ‘The Case of
Lautsi v Italy: A Synthesis’, 2012 BYU Law Review Volume 2012_6 echr,
available at (74) (PDF) The Case of Lautsi v.
Italy: A Synthesis | PUPPINCK Gregor - Academia.edu.
[100] See
§§ 66 and 72 to 76 of the judgment.
[101] Judgment
of 25 May 1993 (CE:ECHR:1993:0525JUD001430788).
[102] See
§ 31 of the judgment.
[103] See
§ 48 of the judgment.
[104] Judgment
of 10 November 2005 (CE:ECHR:2005:1110JUD004477498).
[105] See
§ 121 of the judgment.
[106] Decision
of 24 January 2006 (CE:ECHR:2006:0124DEC006550001).
[107] See
point 2 of the section of the decision considering the law.
[108] Decision
of 3 April 2007 (CE:ECHR:2007:0403DEC004129604).
[109] Judgment
of 26 November 2015 (CE:ECHR:2015:1126JUD006484611).
[110] See
§ 53 of the judgment.
[111] See,
however, the partly concurring and partly dissenting opinion of Judge O’Leary,
where she criticised the judgment on the grounds inter alia that (i) it
extended the Court’s existing case-law in the educational sector to the wider
field without full consideration and (ii) it was necessary to recall that the
wide margin of appreciation given to the Contracting States must be seen as
going hand in hand with European supervision in cases where the Convention
applies. That supervision could not be sidestepped simply by invoking the
margin of appreciation, however wide. A concrete assessment of proportionality
was required.
[112] Judgment
of 1 July 2014 (CE:ECHR:2014:0701JUD004383511).
[113] See
§§ 129 and 131 of the judgment.
[114] See
§ 139 of the judgment, in which the Court held that a blanket ban on the
wearing in public places of clothing designed to conceal the face could be
regarded as proportionate as regards the legitimate aim of public safety only
where there was a general threat to that aim.
[115] See
§ 157 of the judgment.
[116] See
also, in a similar context, judgment of 11 July 2017, Belcacemi and Oussar v. Belgium
(CE:ECHR:2017:0711JUD003779813) and judgment of 11 July 2017, Dakir v. Belgium,
(CE:ECHR:2017:0711JUD000461912).
[117] Judgment
of 15 January 2013 (CE:ECHR:2013:0115JUD004842010).
[118] See
§ 83 of the judgment,
[119] See
§ 85 of the judgment.
[120] See
§§ 91 and 93 of the judgment.
[121] Emphasis
added.
[122] Judgment
of 18 February 1999 (CE:ECHR:1999:0218JUD002464594).
[123] See
§ 34 of the judgment.
[124] Judgment
of 27 June 2000 (CE:ECHR:2000:0627JUD002741795).
[125] See
§§ 74 and 80 of the judgment.
[126] Judgment
of 17 February 2011 (CE:ECHR:2011:0217JUD001288403).
[127] See
§ 50 of the judgment.
[128] See,
for example, the second sentence of Article 52(3) of the Charter.
[129] See
points 149 and 152 to 154 above.
[130] My
researches have not revealed any other decision to date adopted by the
Strasbourg Court concerning private sector employment where Article 9 of the
Convention is at issue. There is a pending case, Nilgün Türk v. Germany,
registered as Application No 61347/16. The applicant, a Muslim, worked as a
nurse in a private-sector hospital and was refused the right to wear an Islamic
headscarf at work. Her employment was terminated and she alleges discrimination
under Article 9 of the Convention, on the ground of unjustified interference
with her freedom of religion.
[131] See
points 155 et seq. and 167 below.
[132] The
decision has been criticised in that regard. See Pagotto, T, The ‘Living Together’
Argument in the European Court of Human Rights Case-Law, in Studia
Tematyczne, Tom 20-2017, p. 9 at p. 24. See also Elver, H., The Headscarf
Controversy, Oxford University Press, 2012, at p. 82, where she describes
the decision as ‘oversimplified’.
[134] I
shall return to the Dahlab decision below (see point 301 et seq. below).
[135] Judgment
of 14 March 2017 (C-157/15, EU:C:2017:203).
[136] Judgment
of 14 March 2017 (C-188/15, EU:C:2017:204).
[137] Judgment
of 17 April 2018 (C‑414/16, EU:C:2018:257).
[138] Judgment
of 11 September 2018 (C-68/17, EU:C:2018:696).
[139] See
paragraphs 23 to 28 of the judgment. See also judgment of 29 May 2018, Liga
van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others
(C‑426/16, EU:C:2018:335, paragraph 44); judgment of 10 July 2018, Jehovan
todistajat (C‑25/17, EU:C:2018:551, paragraph 47); and judgment of 4
October 2018, Fathi (C-56/17, EU:C:2018:803, paragraph 81).
[140] See
paragraphs 29 to 32 of the judgment.
[141] See
paragraphs 33 to 35 of the judgment.
[142] Emphasis
added.
[143] The
Court referred to paragraph 94 of the judgment in that case.
[144] See
paragraphs 37 to 39 of the judgment.
[145] See
paragraph 40 of the judgment.
[146] The
narrative of the facts of the case by the national court does not appear to
have indicated whether the rule at issue applied only to customer-facing employees
or whether it was adopted in order to meet the wishes of customers.
[147] See
paragraphs 42 and 43 of the judgment.
[148] ‘Pas de voile la prochaine fois’.
[149] Article
4(1) of the directive provides: ‘Notwithstanding Article 2(1) and (2), Member
States may provide that a difference of treatment which is based on a
characteristic related to any of the grounds referred to in Article 1 shall not
constitute discrimination where, by reason of the nature of the particular
occupational activities concerned or of the context in which they are carried
out, such a characteristic constitutes a genuine and determining occupational
requirement, provided that the objective is legitimate and the requirement is
proportionate.’
[150] See
paragraphs 26 to 30 of the judgment.
[151] See
paragraphs 31 to 33 of the judgment.
[152] See
paragraphs 34 to 41 of the judgment.
[153] Article
4(2) of Directive 2000/78 provides: ‘Member States may maintain national
legislation in force at the date of adoption of this Directive or provide for
future legislation incorporating national practices existing at the date of
adoption of this Directive pursuant to which, in the case of occupational
activities within churches and other public or private organisations the ethos
of which is based on religion or belief, a difference of treatment based on a
person's religion or belief shall not constitute discrimination where, by
reason of the nature of these activities or of the context in which they are
carried out, a person's religion or belief constitute a genuine, legitimate and
justified occupational requirement, having regard to the organisation's ethos.
This difference of treatment shall be implemented taking account of Member
States' constitutional provisions and principles, as well as the general principles
of Community law, and should not justify discrimination on another ground.
Provided that its provisions are otherwise complied
with, this Directive shall thus not prejudice the right of churches and other
public or private organisations, the ethos of which is based on religion or
belief, acting in conformity with national constitutions and laws, to require
individuals working for them to act in good faith and with loyalty to the
organisation's ethos.’
[154] See
paragraphs 51 to 53 of the judgment.
[155] See
paragraphs 63 and 64 of the judgment.
[156] See
paragraphs 65 to 68 of the judgment.
[157] See
paragraphs 70 to 80 of the judgment.
[158] See
paragraph 47 of the judgment.
[159] See
paragraphs 50 to 54 of the judgment.
[160] See
paragraph 58 of the judgment.
[161] See
paragraphs 58 and 59 of the judgment.
[162] Judgment
of 22 January 2019 (C‑193/17, EU:C:2019:43).
[163] See
paragraph 40 of the judgment.
[164] Judgment
of 16 July 2015 (C-83/14, EU:C:2015:480).
[165] See
paragraph 76 of the judgment. That case concerned Council Directive 2000/43/EC
of 29 June 2000 implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22), rather than
Directive 2000/78. Since, however, the underlying principles are the same, the
Court’s observations are relevant also to discrimination based on religion or
belief.
[166] Judgment
of 10 July 2008 (C-54/07, EU:C:2008:397).
[167] See
paragraphs 23 to 25 of the judgment. The case concerned Directive 2000/43.
[168] Judgment
of 12 November 1996 (C-84/94,
EU:C:1996:431).
[169] See
paragraphs 46 and 61 of the judgment.
[170] Council
Directive 93/104/EC of 23 November 1993 concerning certain aspects of the
organisation of working time (OJ 1993 L 307, p. 18).
[171] See
paragraph 37 of the judgment.
[172] See
points 178 and 179 above.
[173] Judgment
of 27 October 1976, Prais v Council (130/75, EU:C:1976:142) .
[174] See
paragraphs 14 to 17 of the judgment.
[175] Judgment
of 29 October 2020 (C-243/19, EU:C:2020:872).
[176] See
paragraphs 40 to 43 of the judgment.
[177] See
paragraphs 45 to 55 of the judgment.
[178] Judgment
of 19 December 2019 (C-752/18, EU:C:2019:1114).
[179] The
applicant, an environmental protection organisation, sought the coercive
detention of a Minister of the Bavarian Government for a continuing failure to
ensure compliance with environmental legislation.
[180] See
paragraphs 44, 45 and 50 of the judgment.
[181] As
mentioned earlier, that case concerned the principle of equal treatment between
persons irrespective of racial or ethnic origin. See footnote 165 above.
[182] See
paragraph 112 of the judgment.
[183] See
paragraphs 122 and 123 of the judgment.
[184] See
points 155 et seq. and 167 above.
[185] See
Oliver, P.. What purpose does Article 16 of the Charter serve?, in
General Principles of EU Law and European Private Law, Eds Bernitz, Groussot
and Schulyok, Wolters Kluwer, 2013, pp. 281 to 300 at p. 285.
[186] Be
that as it may, the Court has indicated its willingness to give Article 16
effect where it considers it appropriate to do so. See the discussion of the
decision in Alemo-Herron at points 198 to 200 below.
[187] Judgment
of 14 May 1974 (4/73, EU:C:1974:51).
[188] Under
those contracts, the purchaser was required to buy at least 6 000 tonnes a year
of Ruhr coal for the domestic and small-consumer sector: a condition that Nold
did not fulfil.
[189] See
paragraph 14 of the judgment.
[190] See,
for example, judgments of 11 July 1989, Schräder (265/87, EU:C:1989:303,
paragraph 15); of 9 September 2004, Spain and Finland v Parliament
and Council (C‑184/02 and C‑223/02, EU:C:2004:497, paragraphs 51 and 52);
and of 14 December 2004, Swedish Match (C-210/03, EU:C:2004:802,
paragraph 72).
[191] See,
for example, judgment of 22 January 2013, Sky Österreich (C-283/11,
EU:C:2013:28, paragraph 48).
[192] Judgment
of 6 September 2012 (C-544/10, EU:C:2012:526).
[193] See
paragraphs 46 and 47 of the judgment.
[194] See
paragraph 58 of the judgment.
[195] See
paragraph 59 of the judgment.
[196] See
footnote 191 above.
[197] Article
15(6) of Directive 2010/13/EU of the European Parliament and of the Council of
10 March 2010 on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the provision
of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L
95, p. 1, and corrigendum OJ 2010 L 263, p. 15).
[198] See
paragraph 44 of the judgment.
[199] See
paragraph 46 of the judgment.
[200] See
paragraph 66 of the judgment. See also, for a similar emphasis on striking a balance
in the case of competing rights, judgment of 31 January 2013, McDonagh v
Ryanair (C-12/11, EU:C:2013:43). See further, for a discussion of the Sky
Österreich decision and the emphasis which it places on the need to balance
competing rights, Lenaerts, K, and Guttérrez-Fons, J-A., in ‘To say what the
law of the EU is: Methods of interpretation and the European Court of Justice’,
Distinguished Lecture delivered on the occasion of the XXIV Law of the European
Union course of the Academy of European Law, on 6 July 2013, at p. 42 et seq.,
available at http://hdl.handle.net/1814/28339.
[201] Judgment
of 18 July 2013 (C-426/11, EU:C:2013:521).
[202] See
paragraphs 28 to 35 of the judgment.
[203] Judgment
of 27 April 2017 (C-680/15 and C-681/15, EU:C:2017:317).
[204] See
paragraphs 24 to 26 of the judgment.
[205] See
also, to similar effect, judgment of 24 November 2011, Scarlet Extended
(C-70/10, EU:C:2011:771).
[206] See
footnote 20 above for a summary of the derogations in question.
[207] Emphasis
added.
[208] Thus,
were the national court in either case before it to conclude, as sole judge of
facts, that the imposition of the apparently neutral rule was in reality
motivated by a desire to avoid fellow employees or clients being affronted by
the presence of a hijab-wearing observant Muslim female employee, that finding
of fact would – I suggest – provide a strong basis for concluding that there
was direct, rather than indirect, discrimination. See further the thoughtful
analysis in Bribosia, E. and Rorive, R., ‘Affaires Achbita et Bougnaoui:
entre neutralité et préjugés’, Rev. trim.dr.h. (112/2017), pp. 1017 to 1037
(notably at pp. 1029 to 1030).
[209] Emphasis
added. See paragraphs 81 and 82 of the judgment.
[210] In
its judgment of 12 January 2010, Wolf (C-229/08, EU:C:2010:3), the Court
accepted that a requirement based on age as to the possession of especially
high physical characteristics may constitute a ‘genuine and determining
occupational requirement’ when applied to persons in the fire service whose
activities are characterised by their physical nature and include fighting
fires and rescuing persons (paragraph 40).
[211] In its judgment of 13 September 2011, Prigge
(C-447/09, EU:C:2011:573), the Court acknowledged that possessing particular
physical capabilities may be considered a ‘genuine and determining occupational
requirement’, within the meaning of Article 4(1) of the directive, for acting
as an airline pilot and that the possession of such capabilities is related to
age (paragraph 67 of the judgment). It held, however, that the age-limit of 60,
imposed in a collective agreement, for acting as an airline pilot, constituted
a disproportionate requirement in the light of international and German
legislation that fixed that age-limit at 65.
[212] Unless
of course (given that the example I have given concerns age discrimination), it
could be established that one of the justifications set out in Article 6(1) of
Directive 2000/78 were to apply: the fire service might, conceivably, seek to
rely on Article 6(1)(c). However, Article 6(1) concerns differences of
treatment on grounds of age alone. It does not apply to discrimination on the ground
of religion.
[213] For
example, who are clinically obese or who are left gasping for breath after
climbing the short flight of steps to the waiting room designated for
candidates for interview.
[214] See
point 28 above.
[215] See
point 30 above, where this is cited in full from the order
for reference.
[216] These
are set out at point 32 above.
[217] See,
for example, Weiler, J., ‘Je suis Achbita!’, 28 European Journal of
International Law (2017) 989; Bell, M., Leaving Religion at the Door?
The European Court of Justice and Religious Symbols in the Workplace
(October 19, 2017) (2017) 17 Human Rights Law Review 784. For a
discussion of the G4S Secure Solutions and ADDH cases, see Relaño
Pastor, E., Religious Discrimination in the Workplace, Achbita and Bougnaoui,
in Belavusau, U., and Henrard, K., (eds.) EU Anti-Discrimination Law Beyond
Gender, Oxford Hart, 2018, pp. 183 to 202.
[218] See
the first issue discussed under ‘Two keys to the kingdom’, points 62 to 80 above.
[219] For
that reason, I confess to a sense of unease at the way in which the first
sentence of paragraph 43 of the judgment in G4S Secure Solutions is
worded (‘In the present case, so far as concerns the
refusal of a worker such as Ms Achbita to give up wearing an Islamic
headscarf when carrying out her professional duties for G4S customers, it is
for the referring court to ascertain whether, taking into account the inherent
constraints to which the undertaking is subject, and without G4S being
required to take on an additional burden, it would have been possible for
G4S, faced with such a refusal, to offer her a post not involving any visual
contact with those customers, instead of dismissing her’ (emphasis added). To
my knowledge, there was no detailed analysis in the Court of whether there were
such inherent constraints and, if so, what they amounted to (that was indeed a
matter for the national court); but the reference to ‘an additional burden’ is
difficult to ground in the wording of the relevant provisions of the directive
and thus appears misplaced. It seems better, therefore, to concentrate on the
message in the second sentence of that paragraph (with which I respectfully
agree): ‘It is for the referring court, having regard to all the material in
the file, to take into account the interests involved in the case and to limit
the restrictions on the freedoms concerned to what is strictly necessary’.
[220] See
recitals 9, 11 and 12.
[221] See
paragraph 83 of the judgment.
[222] See
points 122 to 128 of that Opinion.
[223] See
Article 10(1) of Directive 2000/78.
[224] This
is, indeed, precisely the approach that has been adopted by certain
police forces in the United Kingdom. Thus, in 2016 Police Scotland was planning
to introduce a uniform hijab in order to facilitate the recruitment of
observant Muslim women to the police service; and in London (an immensely
diverse capital city to police) the Metropolitan Police had, for over a decade,
permitted such officers to wear a uniform-model hijab. See point 123 of, and
footnote 115 to, my Opinion in ADDH and Police Scotland hijab plan for Muslim officers - BBC
News, there cited.
[225] See,
in particular, Egenberger, paragraphs 64, 67 and 68, and IR,
paragraphs 56, 58, 60 and 61.
[226] At
paragraphs 60 to 69 of Egenberger, the Court examined in detail the
criteria to be applied in any given case and developed an analytical framework
for the purpose of assessments under Article 4(2) of the directive. In IR,
the Court reiterated much of its reasoning in Egenberger (see, for
example, paragraphs 50 to 54 and 60).
[227] At
paragraphs 56 to 59 of the judgment in IR, the Court gave guidance on
the factors to be taken into account when considering whether the requirement
at issue in the case amounted to a genuine and determining occupational
requirement for the purposes of the first subparagraph of Article 4(2) (see
point 182 above).
[228] See
point 204 above.
[229] See
points 231 to 234 above for an illustration of positive neutrality:
the different and liberalising approach to rules for staff clothing and
behaviour to encourage children’s curiosity in accordance with the Hamburg
recommendation.
[230] Emphasis
added.
[231] Emphasis
added.
[232] There
was some discussion before the Court as to what the requirement, under the
Basic Law, that the employer should point to the existence of a specific risk
of economic harm might – or might not – entail. I do not think it appropriate
to seek to analyse that material and what it means in terms of German
constitutional law. In terms of EU law, I consider that the position is as I
have here set out.
[233] See
points 219 to 225 (‘objectively justified by a legitimate aim’), 226 to 237 (‘the means of achieving that aim are
appropriate’), 238 to 245 (‘the means of achieving that aim are necessary’)
and 257 to 260 (‘applying those principles’).
[234] See
points 121 to 124 above.
[235] See
point 62 to 80 above.
[236] See
points 271 to 281 above.
[237] See
the discussion at points 190 to 200 above.
[238] See
the analysis within the second issue discussed in ‘Two keys to the kingdom’, at
points 104 to 107 above.
[239] See
points 267 to 270 above. Clearly only observant Muslims who are
female (or who identify as female) wear hijabs. It is perhaps likely
that more women than men are engaged directly with the children in the child
day care centres run by WABE; possible that of the observant Muslim
women employed by WABE in childcare a majority belong to an identifiably
‘different’ racial group; and possible that WABE’s internal rule affects
more observant female Muslims than (for example) observant male Orthodox Jews
or observant male Sikhs. At present, all these statements are suppositions,
however; and the national court would need to investigate and make the
necessary findings of fact before it was in a position to draw conclusions as
to the possibility of double (or triple) discrimination.
[240] See
points 261 to 266 above.
[241] See
points 122 and 123 above.
[242] See
point 201 et seq. above.
[243] Discussed
in point 149 above.
[244] See,
for example, judgment of 23 February 2012 in Hirsi Jamaa and Others v. Italy
(CE:ECHR:2012:0223JUD002776509, § 175).
[245] Report
of the Commission of 12 October 1978 in X. v. The United Kingdom.
(CE:ECHR:1978:1012REP000721575).
[246] Judgment
of 22 October 1981 (CE:ECHR:1981:1022JUD000752576).
[247] Judgment
of 26 October 1988 (CE:ECHR:1988:1026JUD001058183).
[248] How
this particular aspect of Convention law has since developed and has been
nuanced is well summarised in the Strasbourg Court’s ‘Factsheet’ on
'Homosexuality – criminal aspects’, available at FS_Homosexuality_ENG (coe.int).
[249] See
the discussion in points 149, 150 and 168 above.
[250] It
is true that the Grand Chamber noted in its judgment that the children in the Lautsi
and Others case were older than those concerned by the Dahlab decision.
But the more important point is in my view that the application of that
decision in the WABE case must be seen in the context of the adoption by
the employer in that case of the ‘Hamburg recommendation’ (see point 306 below).
[251] See
in particular points 227 to 235 above.
[252] See
notably points 125 to 129 above.
[253] At
point 133 of my Opinion (ECLI:EU:C:2016:553).
