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