CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon? (C-118/20 JY v Wiener Landesregierung)

David A.J.G. de Groot, EU-CITZEN Network*

* I would like to thank Tania Isacu, Rainer Bauböck and Gerd Valchars for their very useful comments.

Introduction

The Supreme Administrative Court of Austria has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in the case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality.

Austria maintains a strict ‘single nationality’ policy, meaning that wherever possible, it requires that a person has only Austrian nationality and no other. Consequently, Austrian nationality is lost in most cases automatically upon voluntary acquisition of another nationality. Equally, Austria requires that upon acquisition of its nationality all previous nationalities have to be relinquished. Austria, as opposed to e.g. Germany, has made no exceptions to this rule where the previous or future nationality is the nationality of a Member State.

C-118/20 JY concerns the procedure for acquisition of Austrian nationality, and more specifically at which moment during the procedure the previous nationalities have to be lost, and whether this is in conformity with the rules on EU citizenship.

Facts of the case

It is unclear from the facts when JY exactly moved to Austria. What is known is that JY applied on 15 December 2008 for Austrian citizenship. At the time, JY held Estonian citizenship and was therefore an EU citizen. More than five years later, in March 2014, the authorities granted her a guarantee of the grant of Austrian nationality, which would enable acquisition of Austrian nationality on condition of providing proof that the previous nationality had been relinquished.

Technically speaking, at this moment she was still not an Austrian national.

She subsequently relinquished her Estonian citizenship on 27 August 2015. Consequently, from that moment on she was stateless.

On 6 July 2017, the authorities revoked the original guarantee of the grant of Austrian nationality and rejected her application for Austrian citizenship.

The reasons provided by the authorities was that JY had committed two serious administrative offences since the decision on the guarantee of the grant of Austrian nationality. These, in combination with eight prior offences (all speeding offences), made her ineligible for naturalization. The two serious administrative offences concerned a failure to provide a compliant vehicle inspection disk and driving under the influence of alcohol.

Based on this, the Administrative Court considered that her future conduct could not be ascertained.

Additionally, the Administrative Court considered that the C-135/08 Rottmann decision of the CJEU was not applicable, since at the time of the revocation decision, JY no longer was an EU citizen, as she was stateless. The court furthermore considered that the breaches were of such a serious nature that the revocation of the guarantee was proportionate in light of the 1961 Convention on the reduction of statelessness. Also, the requirements for revocation of the guarantee as provided for in the Austrian Citizenship Act were considered fulfilled.

On appeal, the Supreme Administrative Court referred the following questions to the CJEU:

Does the situation of a natural person who, like the appellant in cassation in the main proceedings, has renounced her only nationality of a Member State of the European Union, and thus her citizenship of the Union, in order to obtain the nationality of another Member State, having been given a guarantee by the other Member State of grant of the nationality applied for, and whose possibility of recovering citizenship of the Union is subsequently eliminated by revocation of that guarantee, fall, by reason of its nature and its consequences, within the scope of EU law, such that regard must be had to EU law when revoking the guarantee of grant of citizenship?

If the first question is answered in the affirmative,

Is it for the competent national authorities, including any national courts, involved in the decision to revoke the guarantee of grant of nationality of the Member States, to establish whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned?

Analysis

There are many different issues in this case.

Primarily, there is the question: is EU citizenship applicable? Does it only have to be taken into account? Or, has it in fact been violated?

In its C-369/90 Micheletti judgment, the CJEU stated back in 1992 that “under International law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality” (emphasis added). This was consistently repeated in the EU citizenship cases C-192/99 Kaur, C-200/02 Zhu and Chen, C-135/08 Rottmann and C-221/17 Tjebbes (discussed here). Therefore, the role of EU citizenship in this case will feature quite prominently.

However, before we delve into the questions of whether and how EU law is applicable, we should wonder whether the procedure applied by Austria for acquisition of nationality is actually even in conformity with international law.

Relinquishment requirement under international law

The Austrian authorities and the referring court seem to be under the impression that this method of using a temporary guarantee for the acquisition of nationality in order for the person to relinquish their other nationality is in conformity with international law. In short: it is not!

By de facto requiring that before a final assessment for naturalization the person has already relinquished all nationalities and consequently is stateless, Austria is violating the 1961 Convention on the reduction of statelessness and the European Convention on Nationality (ECN). By making a full reassessment of the eligibility (with the exception of the income requirement, a reassessment of which had been considered in violation with the Constitution) after the other nationalities have been relinquished, thus by conducting an assessment ex nunc and not ex tunc, the law deviates from international standards.

The guarantee given by Austria did not satisfy the criteria of Article 7(2) of the 1961 Convention, which provides that “A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country.” In the 2013 Tunis Declaration of the UNHCR, concerning the interpretation of the 1961 Convention, it is stated that loss of the previous nationality should in principle only occur upon acquisition of the other nationality. An exception is provided where an assurance for the future acquisition is given. However, the Declaration clearly states that such an assurance for the grant of nationality may not be “retracted on grounds that conditions for naturalization are not met”. It is equally provided in the Declaration that the state of previous nationality may only provide for loss of its nationality if the guarantee provided is “unconditional and does not leave any discretion to the authorities of the country.” Since the guarantee made by Austria was not unconditional, could be and was actually retracted based on a new assessment of eligibility, Austria can be considered in violation of international law.

Additionally, by giving the impression that its nationality will be acquired and thus a renouncement of the previous nationality will not cause statelessness, Austria has violated the principle of mutual trust in EU law. Every renouncement made in accordance with the nationality laws of the other Member States in order to obtain Austrian citizenship in essence violated those other Member States’ laws and commitments to the prevention of statelessness.

Paradoxically, one could consider that any guarantee ever made by Austria, irrespective of whether the nationality was acquired later or not, had no legal value under international law. Thus, Austria may have created a situation where many naturalized citizens have technically never lost their previous nationality, because the renouncement was contra legem at the time it was made (due to the fact that it would have rendered the person stateless and the guarantee could not provide sufficient assurance that it would not). Only those naturalized citizens who would have lost the previous nationality automatically due to voluntary acquisition of Austrian nationality (e.g. previous nationals of the Netherlands, Lithuania and Slovakia) would only have Austrian citizenship.

Question 1 - EU citizenship law applicable

The Administrative Court considered that EU law, and specifically EU citizenship, was not applicable to the case because at the moment of the decision revoking the guarantee, JY was already stateless and no longer an EU citizen.

This is a rather narrow interpretation and also rather galling considering the fact that it was the Austrian procedure for the acquisition of nationality that created that situation in the first place.

One should consider the question of applicability of EU law, and specifically EU citizenship, from two slightly different perspectives: (1) EU citizenship (Article 20 TFEU) and (2) free movement (Article 21 TFEU).

(1) Taking the view point of Article 20 TFEU, the case already clearly falls within the ambit of EU citizenship, but not necessarily for the reasons pointed out by the referring court.

The referring court makes this a case of loss of EU citizenship, while arguably it is actually a case of acquisition of EU citizenship.

As was stated above, the CJEU has consistently held that the Member States must have due regard to Union law when laying down the conditions on acquisition and loss of nationality. However, until now there have been no cases concerning acquisition of nationality. National courts seem to believe that only where the nationality, and thus EU citizenship, is lost, does EU law comes into play. However, arguing so, they forget that EU law is equally applicable to the acquisition of nationality.

This principle of applicability of EU law to the acquisition of the nationality of a Member State should apply irrespective of the nationality of the person prior to the acquisition, be it that of a Member State, a Third-Country or when the person is stateless.

In the present case, though, since JY had the nationality of a Member State before starting the procedure for acquisition of another Member State’s nationality – which Austria cannot deny considering that it applied the facilitated naturalization criteria for EU citizens on the basis of Article 11a(4)(2) of the Austrian Citizenship Act to JY – the applicability of EU law to the case is beyond doubt.

Any arguments brought forward by the Austrian authorities that the moment of revocation of the guarantee is the point of reference for establishing whether the nationality of the person makes EU citizenship law applicable (which is irrelevant, as explained, since it concerns an acquisition and not a loss case) conflicts with the principle of estoppel. It was the Austrian guarantee that did not fulfil the requirements to ensure that JY would have been an EU citizen.

(2) The referring court has only made reference to Article 20 TFEU in its submissions; however, one should consider that Article 21 TFEU is equally applicable.

Prior to becoming stateless, JY was an EU citizen who made use of her right of free movement by residing in a Member State other than the Member State of nationality. Consequently, her residence prior to becoming stateless was based on Directive 2004/38.

In its judgment C-165/16 Toufik Lounes (discussed here), the CJEU stated that “the rights conferred on a Union citizen by Article 21(1) TFEU, […] are intended, amongst other things, to promote the gradual integration of the Union citizen concerned in the society of the host Member State.” The Court furthermore considered that “Union citizens, […] who, after moving, in the exercise of their freedom of movement, to the host Member State and residing there for a number of years pursuant to and in accordance with Article 7(1) or Article 16(1) of Directive 2004/38, acquire the nationality of that Member State, intend to become permanently integrated in that State.”

Thus, according to the CJEU, naturalization by an EU citizen in the Member State of residence is the ultimate proof of having become permanently integrated in the society of the host Member State.

The CJEU considered that “it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.”

Considering that the CJEU stated that one could not allow an EU citizen to forego rights by becoming more deeply integrated in the society of the host State, a fortiori one cannot expect a Union citizen to gamble away his or her EU citizenship on the possibility of becoming more deeply integrated in the society of the host State, not only foregoing some rights, but the entire legal framework their existence in that State and personal identity are based on. For, from the moment she became stateless, Directive 2004/38 seized to be applicable to JY.

This case, therefore, goes beyond mere Article 20 TFEU, since the rights acquired under Article 21 TFEU are equally at stake.

For that reason, under all circumstances the questions would have to be rephrased in order to include Article 21 TFEU.

The answer to the first preliminary question is thus a definite ‘yes, EU law has to be taken into consideration when a guarantee to acquire the nationality of a Member State is revoked.’

Question 2 - EU law violated

In its second question, the referring court wonders if the national authorities have to consider whether the revocation of the guarantee that prevented the recovery of citizenship of the Union is compatible with the principle of proportionality from the point of view of EU law in terms of its consequences for the situation of the person concerned.

This is the wrong question.

The reference in the question to the principle of proportionality is a consequence of the erroneous reasoning of the referring court that the case concerns loss of nationality, while – as explained above – it actually concerns acquisition of nationality. If indeed it were to concern loss of nationality, then it would be clear based on C-135/08 Rottmann and in C-221/17 Tjebbes that it is mainly the principle of proportionality that has to be observed when it concerns the loss of the nationality of a Member State and of EU citizenship. In C-221/17 Tjebbes the Court listed multiple criteria which have to be observed in such cases. In the present case concerning acquisition of nationality, while the principle of proportionality of course has to be observed, this is by far not the only part of EU law that will have to be considered.

It should be noted at this point that the Administrative Court considered the traffic violations ‘serious crimes’ capable of and proportionate for justifying a revocation of the guarantee. Driving under influence might cause a situation where the consequences could result in a criminal offence; however, the referring court also stated that according to its recurring case-law such a violation will cause revocation of the guarantee irrespective of the actual volume of consumption in the case. If we consider e.g. a situation where the volume is very low, but just above the permitted limit, this cannot be equated to an offence which requires a long prison term (in Austria it does not. The two administrative offences solely resulted in fines totalling €412). It should definitely not be an administrative offence that renders you stateless.

I would like you to also think about the other violation of not having a compliant vehicle inspection disk. Just consider the next time when you have to bring your car to the vehicle inspection that your nationality might depend on it. Would you consider this reasonable? For the time being, I would advise any person who is considering to ever naturalize in Austria to sell their car.

Considering the fact that it concerns ‘recovery of citizenship of the Union’, one should wonder first whether the entire situation that led to this can be considered compatible with EU law.

As was already explained above, the guarantee of the grant of nationality was not unconditional and could be retracted. Therefore, the guarantee did not even fulfil the requirements under international law.

Since EU law is applicable, the Charter of Fundamental Rights of the EU (CFR) and the general principles of EU law are also applicable.

One should consider that JY’s legitimate expectations have clearly been violated. She acted in complete good faith by renouncing her Estonian citizenship in order to acquire the Austrian nationality. This good faith has been thoroughly betrayed.

One should, furthermore, consider that there might be a violation of JY’s right to private life as protected by Article 7 CFR. This is due to the fact that nationality, just like all other civil status, is governed by private life. A requirement to become stateless in order to acquire another nationality, and then additionally refuse the grant of this nationality, is an unjustifiable violation of the right to private life.

Furthermore, as was explained above, we are presented here with a clear violation of Article 21 TFEU. No EU citizen should ever have to forego all rights derived from EU law in order to become more permanently integrated in an EU host State.

The second question should therefore be rephrased in order for it not to be limited to the principle of proportionality, but to EU law in general. Additionally, it would serve the CJEU to extend the scope of the question to include an assessment whether the naturalization procedure of Austria is in conformity with EU law.

Time to take a stance on dual EU citizenship

There is an additional reason why the method employed by Austria violates the free movement rights, but this requires a longer explanation.

One should consider this case in a large and complex web of different lines of case-law.

In my Article on the “Free Movement of Dual EU Citizens”, I have explained that the C-165/16 Lounes case has created a rather complicated situation. This is due to the distinction made by the CJEU between ‘single’ EU citizens – being persons who have the nationality of only one Member State – and ‘dual’ EU citizens – being persons who have the nationality of more than one Member State.

As I explained in that Article, when a person returns to their Member State of nationality, and this is the only Member State of which (s)he has the nationality, the ‘right to return’ case-law applies (C‑370/90 Surinder Singh; C‑291/05 Eind; C-456/12 O&B, discussed here; C-230/17 Altiner and Ravn). This means that the person will only retain those rights derived from EU law that (s)he had made use of prior to the return while residing in another Member State. As was shown, prior to C-165/16 Lounes, problems arose for dual EU citizens when they moved between Member States of nationality, being on the one hand excluded from the scope of Directive 2004/38, while on the other hand only rights that were acquired on the basis of the Directive could be retained.

After C-165/16 Lounes, on the contrary, a dual EU citizen who returns or moves to one of his or her Member States of nationality, would not only be able to retain rights which were previously used, but continues to be able to derive new rights from the EU citizenship framework. This means that a single EU citizen is not treated in the same manner as a dual EU citizen would in a Member State of nationality, while both have made use of their free movement rights. While single EU citizens are still affected by reverse discrimination, dual EU citizens are only affected by it if they have never moved to and resided in the Member State in which they were born and of which they have the nationality.

I wrote that this differentiation is dangerous. I also stated that the CJEU should consider situations where the EU citizen had to renounce or automatically lost their original Member State’s nationality upon naturalization in another Member State, like in the case at hand.

I considered that one may not make a distinction between persons who acquired a nationality at birth and those who acquired it by naturalization. The reasoning of the CJEU in Lounes would have required a further distinction between persons who had naturalized and previously had the nationality of another Member State and those that had the nationality of a Third Country prior to naturalization. This would create immense problems.

Consequently, an application of C-165/16 Lounes to naturalized EU citizens who lost the previous nationality, without completely abolishing reverse discrimination, is impossible.

I stated that if the CJEU considered that there are two lines of case-law – one concerning single EU citizen returners and one concerning dual EU citizens – , it would have to restrict Member States as to requirements of renouncing the previous nationality if this is the nationality of another Member State and to the automatic loss of the nationality upon acquisition of another Member State’s nationality.

I considered that the requirement of renunciation of the previous nationality would equal a requirement to choose for the ‘single EU citizen’ framework and, therefore, to forego rights; and equally the automatic loss of a Member State’s nationality would be for the sole reason that the person wanted to become more integrated in the Member State of residence. This also meant that a person with only the nationality of a Member State with a strict ‘single nationality’ policy would be at an enormous disadvantage, since (s)he would have to naturalize twice in order to get within the dual EU citizen framework. In order to get within the ambit of this framework, a person who is a national from a Member State with a strict ‘single nationality’ policy would, in a first stage, have to lose this nationality by naturalizing in another Member State which permits multiple nationalities; and subsequently, in a second stage, acquire, additionally to this newly acquired nationality, another nationality from another Member State. While a person who originally already had the nationality of a Member State that permits dual nationality, would immediately start at the second stage.

In the case C-230/17 Altiner and Ravn, which concerned returners, the CJEU had the opportunity to make C-165/16 Lounes applicable to single EU citizens and end reverse discrimination. This opportunity has passed and the Court repeated its ‘right to return’ case-law without any significant change.

One should be aware though that, whatever happens in C-118/20 JY, this case will have an impact in other areas of EU law. For example, the C-386/02 Baldinger case of the CJEU where the Court accepted Austria’s refusal to continue to grant certain pension rights to a person who lost Austrian nationality upon acquisition of Swedish nationality, will have to be revisited.

The Court will have to follow through with the line it has taken and declare in C-118/20 JY that these automatic loss clauses and requirements to renounce the other Member State’s nationality are incompatible with EU citizenship.

If it does not, there will be no more legal EU citizenship framework building up to a fundamental status, but just a random set of cases which had potential, once upon a time. That is not the story we would like to tell.

Conclusions

The case C-118/20 JY v. Wiener Landesregierung, concerning the revocation of a guarantee of the grant of Austrian nationality, is more than a case on loss of EU citizenship. It is the first case where the CJEU will have to rule on the acquisition of EU citizenship.

It was considered here that the preliminary questions referred imply that the Austrian rules concerning the duty to renounce the previous nationality are compatible with international law and EU law in general. It was demonstrated that they are not.

It has been shown that the guarantee of the grant of Austrian nationality violates international law to such an extent by being revocable that any naturalized person in Austria might argue that (s)he might still have the original nationality, due to the fact that the renouncement had been contra legem. It was furthermore considered that Austria, in having a guarantee that is revocable, violated the principle of mutual trust.

Additionally, it was argued that not only Article 20 TFEU is applicable to the case, as the referring court insinuated, but also, and especially, Article 21 TFEU.

It was maintained that the CJEU will additionally have to consider that this case is an extension of its Lounes judgment. In Lounes and subsequently in Altiner and Ravn, the Court has made a distinction in the EU citizenship framework between ‘single’ EU citizens and ‘dual’ EU citizens. In JY it will now have to complete this distinction by decreeing that it is no longer permissible for a Member State to require that a person who wants to naturalize has to forego rights by renouncing his or her other Member State’s nationality. Equally, Member States will no longer be permitted to provide for the automatic loss of their nationality when one of their nationals acquires the nationality of another Member State.

One should keep a close watch on this case as it will have an impact in many areas of EU law. The fundamental status of EU citizenship might be on the horizon.

Barnard & Peers: chapter 13

Photo credit: Jules Verne Times Two / julesvernex2.com / CC-BY-SA-4.0 (linked to: https://creativecommons.org/licenses/by-sa/4.0/deed.en) See also: http://julesvernex2.com

“You’re all individuals!” The CJEU rules on special status for minority religious groups

Ronan McCrea, Professor of Constitutional and European Law, University College London

After many years with no rulings on the interpretation of the provisions of Directive 2000/78 in relation to discrimination on grounds of religion or belief, the Court of Justice has now issued no fewer than five major decisions in the last two years, all five decided by the Grand Chamber.

The most recent case consisted of a reference to the Court of Justice from the Austrian Oberster Gerichtshof (Supreme Court). It involved a challenge to Austrian labour legislation which classified Good Friday as a public holiday for members of three small Christian minority churches (the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church).

The effect of this legislation was that members of these churches were entitled to a paid holiday on Good Friday or to additional holiday pay if they worked on that day. Good Friday was not considered to be a public holiday for those who are not members of these churches. 

Markus Achatzi, who is not a member of any of these churches, claimed that his employer (a private detective agency) discriminated against him by denying him additional holiday pay when he carried out work for them on Good Friday 2015. The sum involved (€109.09) is rather small, particularly in the light of the costs that must have accrued in the course of litigation all the way to the Austrian Supreme Court and a reference to the CJEU, but the case raised an interesting point. Can a measure intended to benefit adherents to a minority faith amount to illegal direct discrimination against those who are not members of that minority?

The Court of Justice held that the Austrian legislation did violate the prohibition on discrimination on grounds of religion or belief in Directive 2000/78 which implements the general principle against discrimination seen in Article 21 of the EU Charter of Fundamental Rights.

In doing so it dismissed the preliminary argument of the Polish government which had argued that Court lacked jurisdiction to rule on the issue of the grant of a public holiday for the celebration of a religious festival because of the commitment in Article 17(1) TFEU that the Union ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’.

The Court continued the narrow approach to Article 17 it took in Egenberger (discussed here) and IR (discussed here) the Court where it held that Article 17 merely expressed the neutrality of the Union in relation to the different ways in which the Member States organize their relations with churches and religious bodies and did not provide a wider exemption to all matters relating to religion or religious bodies from review for their compliance with EU norms. The Court therefore concluded that it had jurisdiction to rule in this case because ‘the national provisions at issue I the main proceedings do not seek to organize the relations between a Member State and churches, but seek only to give employees who are members of certain churches an additional public holiday to coincide with an important religious festival for those churches’.

On the substance, the Grand Chamber ruled that by granting a holiday only to members of certain churches, Austrian law did establish a difference of treatment on grounds of religion. It rejected the argument of the Austrian authorities that such a difference of treatment could be justified by the importance of Good Friday to those religious communities, noting that the privilege was not subject to any condition that the employee must carry out a religious duty on that day meaning that members of the privileged churches were no different from a non-religious employee who wanted to take the day off on Good Friday. Furthermore, the Austrian legislation provided a right to holiday pay which applied even if the member of the privileged churches worked on Good Friday without feeling any obligation to celebrate it as a religious festival. All of these factors led the court to conclude that the legislation in question was directly discriminatory on grounds of religion.

The Court then considered whether this direct discrimination could be justified either by Article 2(5) of the directive (which states that the directive is ‘without prejudice to measures laid down by national law which, in a democratic society are necessary [….]for the protection of the rights and freedoms of others’) or Article 7(1) of the directive which allows for measures which as the Court noted, ‘although discriminatory in appearance are in fact intended to eliminate or reduce actual instances of inequality which may exist in society’.

In relation to Article 2(5) the Court held that, as an exception to the principle of equal treatment, it must be interpreted strictly. It rejected the argument that the Austrian law could be seen as necessary to protect freedom of religion and belief, noting that under Austrian law, employees of other religions who seek time off to celebrate a religious festival are only entitled to the time off necessary to perform religious rites, and not to an entire day off as in the case of members of the privileged churches.

In relation to Article 7(1) the Court held that Article 7 permits only proportionate measures to be taken to compensate for actual inequality. The Austrian legislation it decided was disproportionate as it went beyond the need to allow members of the churches in question to carry out any religious obligations on Good Friday as it provides an entire twenty four hour rest period for such members while only giving adherents to other faiths the time necessary to carry out religious rites.

With the finding of fault with the Austrian legislation, two further issues then presented themselves to the Court. First, because the case consisted of a dispute between two private parties in an area of law governed by a directive, the Court had to address the question of horizontal direct effect of directives. It also had to decide whether, in circumstances where national law is found to have accorded a privilege to one religious group in a way that constitutes unjustified discrimination, the appropriate approach is to ‘level up’ (i.e. grant the relevant privilege to all) or to ‘level down’ (to remove the privilege from those who held it).

In relation to the direct effect issue the Court noted the Marleasing obligation on national courts to interpret national law, as far as possible, so as to achieve the objectives of EU law but appeared to accept that in this case it may not be possible to interpret Austrian law in a manner that is compatible with the directive. It went on to reiterate its holding in Egenberger and IR that Directive 2000/78 merely represents the codification of the general principle of law prohibiting discrimination that is reflected in Article 21 of the Charter of Fundamental Rights. As general principles of law and Charter rights are directly effective between individuals, the national court is obliged to give full effect to those rights in its ruling.

In relation to the issue of levelling up or down, the Court held that the national court ‘a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and must apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category. That obligation persists regardless of whether or not the national court has been granted competence under national law to do so’

The Court noted that this approach applies ‘only if there is a valid point of reference’ but found that the provisions granting the right to an extra public holiday to members of selected churches did constitute such a valid point of reference and accordingly the national court should recognize Good Friday as a public holiday for all employees whether or not they are members of those churches. This right remains in force until such time as the Austrian legislature introduces legislation that complies with the principle of equal treatment. It is therefore open to the Austrian Parliament to decide to retain Good Friday as a public holiday for all employees or, indeed, to ‘level down’ and remove recognition of Good Friday as a public holiday altogether.

Conclusion

This ruling reinforces some patterns that had begun to emerge in earlier rulings in relation to the religion provisions of Directive 2000/78. First, the Court of Justice takes a narrow view of the scope of the ‘hands off’ provisions of Article 17 TEU which says that the Union respects the status of churches and religious bodies under national law. The Court has now found three times that this provision covers the narrower issue of how states organize their relations with religious bodies and does not provide a more general exemption from review for national laws that regulate activities of religious bodies, such as employment, that fall within the field of application of EU law.

Viewed in the light of the rulings of the Court in the cases about the prohibition of religious symbols in the workplace, the ruling in this case underlines the Court of Justice’s preference for an individualistic view of religion and its dislike of rules that provide in a blanket fashion advantages or disadvantages to categories of people identified by their religion. Thus, in Achbita (discussed here), the Court took an individualistic approach to religion in upholding a general prohibition on all symbols of religion or philosophical belief in the workplace, regarding an individual decision to display a symbol of one’s political or philosophical beliefs as equivalent to a decision to wear a symbol such as the Islamic headscarf that generally associated with a particular religion. The Court was accordingly, unwilling to recognize religious expression as being entitled to greater protection than non-religious expression. This approach has been criticized for neglecting the communal and non-belief based elements of religion but it is also in line with the consistent jurisprudence of the Strasbourg Court which has always seen religious freedom as primarily a matter of individual belief that applies equally to the religious and non-religious. This approach has also meant that the Court of Justice has been unwilling to accommodate rules or actions that appear to target a particular faith as in Bougnaoui (discussed here) where it found a request to an employee that she have ‘no headscarf next time’ was directly discriminatory.

These features of the Court’s approach are both on display in the Austrian case. The Court was unwilling to accommodate a law that conferred a blanket privilege on members of selected religions (and therefore a disadvantage on those not of the privileged faiths). The Court’s analysis stressed the need for individual equality, noting a concern that those who wanted to take Good Friday off for non-religious reasons would not be treated equally.

The fact that the Court found fault with the breadth of the privilege conferred (it allowed for the entire day to be taken off while members of other faiths could only get time off to attend religious ceremonies on their holy days) shows that privilege granted to religious individuals will need to be tailored to accommodate the specific additional burdens faced by religious people rather than conferring broader privileges that others not of the relevant faith could conceivably benefit from.

This narrow tailoring of accommodation will struggle to accommodate those who are culturally of a particular faith but not particularly devout. Given that the Court criticized the Austrian law for giving a day off to selected religious minorities without requiring that employees benefitting from the additional time off attend any religious ceremonies does that mean it would not be permissible to give extra time off to Muslim workers who, while not devout, would like to spend Eid with their families even though they never darken the door of a mosque?

Finally, this case raises interesting broader questions about the status of historically privileged religious minorities. It is not uncommon in Europe for long established and relatively small religious minorities, such as those benefitting from the Austrian legislation, to have had particular privileges recognized in national constitutions. This raises issues both because the same privileges are often not guaranteed to more numerous more recently arrived religious minorities (usually Islam) but also, as in the case of the Muslim community of Thrace, when the communal privilege granted clashes with the individual rights of members of the religious minority (as when the Strasbourg Court found a violation in respect of the imposition of discriminatory inheritance rules on Muslim women).

It would seem that although the EU is committed to respecting Member State autonomy in religious matters, the individualistic approach of the ECHR and EU law to religion, including a commitment to give non-religious individuals equal treatment, is progressively curtailing both blanket privilege for religious institutions including long established additional protections and rights for certain religious minorities.

Barnard & Peers: chapter 20

Photo credit: The Friendly Atheist