Tuesday, 23 March 2021

Shadow Opinion of former Advocate-General Sharpston: headscarves at work (Cases C-804/18 and C-341/19)

 

 


 

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

 

18.  Articles 3 and 4 of the Basic Law form part of ‘Part 1. Basic rights’, as protected by the highest level of law in Germany.

 

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.’

 

23.  The referring court in MH Müller Handels explains that under the case-law of the Bundesverfassungsgericht (Federal Constitutional Court, Germany) Article 4(1) and (2) of the Basic Law has been held to be closely linked to the highest constitutional value of human dignity. Forms of expression of religious life, such as the wearing of an Islamic headscarf, are covered by that provision and all persons have the right to conduct themselves in accordance with the convictions of their faith, to act in accordance with those convictions and thus to live in conformity with their faith. Where fundamental rights conflict with one another, they must be balanced with one another pursuant to the principle of practical concordance (praktische Konkordanz). By virtue of those principles, Muslim women who wear the Islamic headscarf at work are entitled to the protection provided by Article 4(1) and (2) of the Basic Law. A prohibition on expressing one’s religion through one’s external appearance, including by wearing such a headscarf, is disproportionate where such conduct can be logically explained by a religious precept interpreted as being obligatory and where the prohibition cannot be justified by a sufficiently specific danger in relation to the prohibiting party’s protected rights. The Bundesarbeitsgericht follows essentially similar principles.

 

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

 

29.  IX (the claimant) was employed by the defendant, which runs a large number of child day care centres with more than 600 employees taking care of around 3,500 children. Its website contains the following ‘mission statement’:

 

‘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).

 

32.  During her absence on that leave, the defendant issued its ‘instructions on observing the requirement of neutrality’. So far as is relevant, those instructions state:

 

‘[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]

 

42.  Thus, both the analysis of discrimination (both direct and indirect) that we apply, and our scrutiny of the possible justifications advanced for the latter, must be rigorous. To do otherwise risks opening the door too readily to easy claims by shrewd employers that, because they naturally wish to present an image of strict neutrality in order to run their businesses profitably (and have been intelligent enough to formulate this desire as a clearly articulated element of their corporate policy and rule-book for employees), the resulting indirect discrimination is not discrimination at all, because it is objectively justified.

 

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?

 

62.  It has been suggested to the Court (notably, by the Commission) that all the Court has to do here is to interpret Directive 2000/78 in the light of the general prohibition on discrimination contained in Article 21 of the Charter. It is, after all, a directive that is intended to address discrimination. So – the argument runs – let us look at the directive solely in the light of Article 21 of the Charter and all will be well.


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.

 

80.  I therefore conclude, in relation to the first of the two fundamental conceptual issues that I have identified, that Directive 2000/78 falls to be construed and the questions referred answered against the background not merely of Article 21 of the Charter, but also – and indeed predominantly – having regard to Articles 10 and 16 thereof.

 

 

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.

 

107.                      Thus, in addressing the balance to be struck here between competing fundamental rights, an appropriate and respectful space must be left for national constitutional law to play its part. To say that is not to undermine the generic importance of arriving at a uniform interpretation of EU law or to question its generic supremacy over national law in cases of genuine conflict. There is here no conflict. EU law has indeed established the ‘general framework’ for combating discrimination on any of the listed grounds. But it has left important elements in the story to be nuanced and amplified by national law. In so doing, it has given real effect to the principle of ‘unity in diversity’ that is the European Union’s motto and that is reflected in Article 22 of the Charter.

 

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.

 

117.                      Typically the following passage from the Koran is cited as the raison d’être for observant Muslim women to wear some form of concealing religious apparel:

 

‘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’.

 

121.                       A moment’s visualisation of a hijab, a dastar and a kippah leads to the realisation that the physical dimensions of mandated religious apparel vary widely. Depending on one’s perspective, one might regard one or other as ‘large’ (or, again, not) or as more or less ‘prominent’. Of the three items of mandated religious apparel that I have just singled out, a plain, undecorated kippah (in a suitably self-effacing colour that matches the wearer’s hair) probably emerges as the most unobtrusive, in terms both of small size and maximum discretion. But that merely demonstrates the intrinsic bizarreness of a rule that bans ‘large-scale’ signs and the uncertainty to which it may lead.

 

122.                      It seems to me to follow that a total ban on all religious signs will necessarily discriminate against all religious groups who consider themselves to be obliged to wear mandated religious apparel as compared with (i) members of religions in which specific apparel is not mandated and (ii) those employees who are atheist or agnostic. A partial ban will produce more nuanced discrimination: specifically, intra-group discrimination within the ‘religious’ group. It will not affect those whose mandated religious apparel is not deemed to be ‘large’ or ‘prominent’ (and, as before, will not affect members of religions for which apparel is not mandatory, or atheists or agnostics). It will however discriminate against observant members of religions with larger or more prominent mandated religious apparel who consider themselves religiously obliged to wear such apparel.

 

123.                      It seems to me difficult to avoid the conclusion that, in relation to those members of non-Christian religions that regard themselves as obliged to wear mandated religious apparel, rules such as those put in place by both employers in these two references discriminate against such employees on a prohibited ground (religion). I venture to add that, in relation to such persons, the discrimination in question looks very much like direct discrimination. But for the fact that they are observant members of religions that include mandated religious apparel and consider themselves to be religiously obliged to wear such apparel, they would be able – like other employees – to choose whether to comply with their employers’ rules. But because of their religious beliefs, they cannot exercise such a choice.

 

124.                      In so saying, I do not wish to be taken as suggesting that, for a committed Christian, the decision to ‘manifest’ one’s religion by openly wearing a cross is trivial or unimportant. On the contrary: it is a powerful statement of the wearer’s belief and a serious one, inasmuch as it openly signals the wearer’s religious affiliation and willingness to try to live up to the requirements and moral standards of his or her faith. None of that is to be treated lightly. Nor am I implying that, whereas an employer cannot adopt a rule that interferes with the wearing of mandated religious apparel, he is free to ban other (non-mandatory) signs that are worn to manifest their beliefs by adherents of religions that do not have mandated religious apparel. A rule that operated such a distinction would create intra-religious discrimination of a very unpleasant kind.

 

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.

 

126.                      Such legitimate limitations on proselytising include, in my view, both protecting the employer’s interests in having peace and harmony within his workforce (MH Müller Handels) and protecting vulnerably younger children from being influenced towards adopting a particular religion by the persuasive discourse of a teacher (WABE).

 

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.

 

167.                      Third, the most valuable guidance provided by the case-law for current purposes comprises the judgment in Eweida. I would highlight the following:

 

-          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

201.                      My analysis begins from the premiss that the EU legislature, in enacting Directive 2000/78, intended to create a coherent, functioning and effective system to combat discrimination in employment – whether direct or indirect – on any of the prohibited grounds listed in that Directive.

 

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’

 

219.                      From what I have said already, it will be clear that I approach the situations that have given rise to these two references as being ones in which there are competing rights under the Charter. The two employers, relying upon their reading of the Court’s judgment in G4S Secure Solutions, propose to give absolute priority to the employer’s freedom to conduct a business set out in Article 16 of the Charter. The employee’s right (under Article 10 thereof) to freedom of thought, conscience and religion is, however, likewise protected by the Charter – and hence by EU primary law – as well as by specific secondary legislation, in the shape of Directive 2000/78, which prohibits discrimination on any of the grounds there identified (thus echoing Article 21 of the Charter).

 

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.)

 

225.                      I therefore suggest that, when considering whether the aim pursued by the employer is legitimate, the national court should ask the following sequential questions (bearing in mind that Article 10(1) of Directive 2000/78 expressly places the burden of proof for showing that the aim is legitimate on the employer who wishes to avail himself of the justification defence and thus demonstrate that there has been no breach of the principle of equal treatment):

 

(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’

 

226.                      Once the employer’s stated aim has been vetted carefully and assuming that it has passed muster as to its legitimacy in the light of the questions that I have just set out, the next issue that falls to be considered is the appropriateness of the measure under consideration as a means of achieving that aim. Again, it is important to maintain a proper level of scrutiny. Generically, it is likely that the measure in question will be a possible way of achieving the desired objective. To say that is merely to attribute a basic level of competence to the employer in his selection of instrument to achieve his stated aim. But is the measure under consideration really an appropriate way of achieving that aim? Might a different measure – one that was not accompanied by an indirectly discriminatory effect – perhaps do the job just as well?

 

227.                      Here, let me illustrate the point by approaching the facts behind one of these two references from a different (perhaps, a counter-intuitive) angle.

 

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).

 

231.                      Given the express terms of the Hamburg recommendation, which the child day care centre is following and which must therefore presumably represent its primary (and wholly legitimate) aim, it is at least worth asking the question, ‘rather than imposing an absolute requirement of ‘neutrality’ (thus prohibiting and negating any expression of religious diversity amongst the teaching staff at the centre), might another more appropriate way of achieving the centre’s primary aim not instead be deliberately to authorise such religious expression within carefully controlled parameters so as to avoid proselytising?’

 

232.                      To be clear: that would mean that observant female Muslim staff could report for duty in their hijabs. Observant male Jewish teachers would be free to wear their kippahs and observant male Sikhs, their dastars. Committed Christians would unashamedly, if they so chose, wear crosses visibly over their clothing, rather than tucked away discreetly inside their shirts or blouses. By the same token, an agnostic member of staff would (if he wanted to do so) be free to come in to work wearing a lapel badge asking, ‘Does all this God stuff actually add up?’; just as his atheist colleague could sport a T shirt saying ‘God is dead’.

 

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.

 

234.                      In such an environment, the children’s natural curiosity would go into overdrive. They would question the adults’ observances, practices and clothing. ‘Why are you wearing that?’ ‘Why do you do that/say that before you eat your lunch?’ ‘Why does it matter to you to wear that strange scarf around your head?’ The staff would be subject to a strict professional obligation (backed up by disciplinary sanctions) to answer the children’s questions honestly and objectively, without proselytising. The children would be exposed in a natural, relaxed, unthreatening way to a world of religious and philosophical diversity. By thus directly ‘encountering other religions’, the children would truly ‘experience different forms of reflection, faith and spirituality’. In the process, they might indeed develop ‘appreciation and respect for other religions and cultures’. It is perhaps permitted to wonder whether, in contrast, a prohibition on the wearing of mandated religious apparel does in reality send that desired message of respect and tolerance.

 

235.                      It is here worth emphasising that no argument has been advanced before the Court in WABE as to why a requirement of neutrality of exposition as to religious belief, rather than a generalised requirement of neutrality that outlaws the wearing of any sign of belief (including mandated religious apparel) and the performance of routine religious ritual, would not be an appropriate measure in order to achieve the stated aim. That surely is a question that the national court might profitably ask as part of its assessment of the employer’s justification for its internal rules, as it goes both to the appropriateness of those rules (‘is such a prohibition in fact an appropriate means of achieving the stated aim?’) and to their proportionality (is the prohibition limited to what is strictly necessary?’).

 

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.  

 

237.                      I therefore suggest that, when considering whether the means that the employer has put in place to achieve the aim pursued are appropriate, the national court should ask the following sequential questions (again, bearing in mind that the burden of proof for showing that the means are appropriate lies with the employer who wishes to avail himself of the justification defence):

 

(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.

 

247.                      This is a neutral measure, applied – by using a tape measure – to all potential recruits. However, it discriminates against women because on average most women are shorter than most men. Note that this measure does not, in fact, only discriminate against women. Thus, men of colour from certain racial backgrounds (for example, Filipino men) will tend to be shorter than white Caucasian males who have been well-nourished for generations.

 

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’.

 

251.                      On that basis, the minimum height requirement is obviously sensible. The aim is legitimate. The rule is appropriate for achieving that aim. Provided that the requirement is not set at a ridiculously high level, it does not go beyond what is required (so, it is proportionate). The fact that it will inevitably keep many women out of the police force is just too bad. After all, they do not have to join the police. There are plenty of other jobs that they could do – traditional female jobs like being secretaries or nurses – where there is no minimum height requirement (and where a minimum height requirement would not be justified).

 

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

 

257.                      Respectfully, I would point out that in both Egenberger and IR, the Grand Chamber has already shown the way in giving clear and workable guidance to the national court to apply in this type of situation.

 

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.

 

260.                      I can see no good reason why a religious employer should be scrutinised carefully, but an employer who claims that he wishes to ‘project a neutral image’ in order to promote his business should (essentially) be taken at his word. I therefore suggest that exactly the same approach as was laid down in Egenberger and IR can and should be transposed to the present cases.

 

 

An enlarged definition of direct discrimination?

 

261.                      It will have been apparent from the earlier discussion that the dividing line between what is direct discrimination and what is indirect discrimination is sometimes a fine one. If direct discrimination is rigorously policed but employers are given a significantly greater margin of discretion when it comes to indirect discrimination, that can give rise to real gaps in employee protection.

 

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.

 

264.                      Once the employer’s conduct was classified – applying that approach – as direct discrimination, it would automatically be unlawful unless one of the specific (and limited) derogations in the directive applied.

 

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’.

 

266.                      It seems to me that sooner or later it will be necessary to think hard about whether slightly to expand our reading of the definition of direct discrimination, in order to call out for what it is conduct that to all intents and purposes is indeed directly discriminatory. I realise that moving our understanding of direct discrimination forward in this way may be thought to be a bold step; and it may be that the Court is not yet comfortable about embracing such a development. If so, it becomes even more essential to ensure that all aspects of the justifications advanced by employers for work practices that are indirectly discriminatory are subjected to rigorous scrutiny.

 

 

A word about triple discrimination

 

267.                      One of the most troubling aspects of the present two references – an aspect that is only touched upon in the narratives contained in the orders for reference and that is barely reflected in the questions referred – is the possibility that the employers’ rules here at issue may not just have a disparate adverse impact upon employee A because she is a religiously observant Muslim. They may also, as a matter of objective fact if not deliberate intention, affect her adversely because she is female (the Koranic requirement to dress modestly is addressed to women) and because she comes from a different ethnic community from the majority of those employers’ workforce (one that is more likely to be Muslim by religion). If that is, objectively, the result of imposing such rules, the outcome is potentially a kind of ‘triple discrimination’: that is, discrimination based upon religion plus discrimination based upon sex plus discrimination based upon ethnic origin.

 

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.

 

270.                      Whilst it will be for the national court to make the necessary findings to determine whether these potential issues are borne out by the facts, it seems to me important to highlight the problem. I add that, where such double- or triple discrimination is a genuine possibility, the national court should in my view apply an enhanced level of scrutiny to the sequential aspects of the justification being advanced by the employer. Only a very rigorous examination of that justification, coupled with an insistence that the employer make good his case (rather than a willingness to take it at face value or on trust), will provide adequate safeguards to these very vulnerable categories of potential employees.

 

 

The scope for a Member State to grant or maintain additional protection

 

271.                      I have already drawn attention to the fact that, like Regulation No 1099/2009, which was the subject of the Court’s ruling in Centraal Israëlitisch Consistorie van België and Others, Directive 2000/78 contains an express provision (Article 8) envisaging the possibility that Member States may choose to afford additional protection to the principle of equal treatment, over and above what is laid down by the directive. I therefore turn to consider Article 8 in greater detail. A number of observations fall to be made.

 

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 …’

 

280.                      Here, it is plain from the very presence of Article 8 of Directive 2000/78 that ‘action of the Member States is not entirely determined by European Union law’ as regards the protection to be afforded to the principle of equal treatment. Given that the combined effect of Article 8(1) and Article 8(2) is to recognise and endorse the possibility of disparate levels of protection in different Member States, it seems to me that ‘the primacy, unity and effectiveness of European Union law’ will not be ‘compromised’ by a Member State duly applying its ‘national standards of protection of fundamental rights’. For the reasons that I have advanced elsewhere in this Opinion, ‘the level of protection provided for by the Charter’ must here involve striking a balance between competing Charter rights. It is however clear from the wording and objective of Article 8 that the EU legislature expressly envisaged that Member States might wish to strike, or might already have struck, that balance in a way that afforded enhanced protection for employees’ right to equal treatment (and thus that weighed up the competing rights of the employee and the employer in a way that was more favourable towards the employee). Article 8(1) and (2) provide them with an express legal basis that authorises such action.

 

281.                      Accordingly, since the various elements that together compose the principle laid down in paragraph 29 of Åkerberg Fransson are satisfied, I consider that Member States enjoy scope to grant or maintain additional protection for employees under national law (and notably under national constitutional law) to combat direct or indirect discrimination against them on any of the prohibited grounds. It is accordingly permissible for a national court to have regard to such additional protection, derived from national constitutional law, when resolving a case before it that falls within the ambit of Directive 2000/78.

 

 

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.

 

301.                      Before leaving question 1 (as reformulated), there is however an additional issue that I should address. Is it the case that, given the Strasbourg Court’s ruling in Dahlab, WABE would in any event be justified in prohibiting I.X. from wearing her hijab in the workplace, so that it becomes otiose to enquire further as to justification?

 

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]

 

305.                      Second, Dahlab (decided in 2001) relates to facts that arose in the very early 1990s. At that time, a Muslim hijab would perhaps have been relatively unusual apparel for a teacher in Geneva canton; and therefore could more readily have been considered to be a ‘powerful external symbol’ for impressionable young minds. A child walking down the street with its parents in many major cities in Europe in recent years will have encountered observant Muslim women wearing hijabs going about their normal business – shopping, having a drink with friends at a café, waiting for public transport. The novelty value of seeing a woman wearing a hijab, and with it the ‘strong impact’ on impressionable young minds, is correspondingly reduced.

 

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] 

 

307.                      Fourth, I can only reiterate that it is not for the Court to decide the actual outcome of WABE. That is the exclusive province of the national court. It seems to me, however, that the guidance to be furnished to the national court may appropriately include the Court’s assessment of the extent to which the Strasbourg Court’s ruling in Dahlab should be determinative of the weighing up exercise to be carried out by the national court. In my view, for the reasons that I have just given that ruling is not determinative. It follows that there is adequate scope for the Court to afford protection to religious expression, including in the context of the teaching of young children, without ‘going against Strasbourg’; and for the national court, as sole judge of fact, to bear that guidance in mind when deciding the case before it.

 

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]        &n