EU values, LGBTQI+ rights and the future of democracy in Hungary and beyond: On the wider significance of case C-769/22

 

Benedetta Lobina* and Esther Martínez**

* re:constitution fellow and lecturer at the UCD Sutherland School of Law

** Co-founder and director of RECLAIM, a human rights NGO that campaigned for Member States to join in the proceedings in this case against Hungary

Photo credit: Budapest Pride march 2025, photo by bannedpride via Wikimedia Commons

 

In what has been a momentous 10 days for Hungary, after the elections that ousted Orban as Prime Minister after 16 years, the Court of Justice of the European Union delivered its much-anticipated judgment in the Hungarian “anti-LGBT propaganda” case. This case is remarkable for a number of reasons: for the first time, the Court found a breach of Article 2 TEU as a stand-alone plea in law; it expanded upon the protection of LGBTQI+ rights under the scope of EU law; and it saw an unprecedented number of interventions in support of the Commission, namely from the European Parliament and 16 Member States. Additionally, the timing of the Court’s delivery makes this the first opportunity for the new Magyar government to turn a new leaf for the country, after pledging its commitment to Europe during the course of the electoral campaign. In this blogpost, we will break down the wider significance of this judgment, beyond the undoubtedly groundbreaking use of Article 2 (and related doctrinal debates), especially with regards to the implementation of LGBTQI+-related CJEU judgments in Hungary and in the rest of the EU, and as pertains to what it signals for future litigation efforts.

Background of the case

The case was triggered by Orban’s far-reaching reforms seeking to restrict access to LGBTQI+ content (see here for an accessible breakdown). According to the arguments presented by the Commission (which the Court found well-founded in their entirety), the laws infringed a wide range of EU instruments related to the provision of services and the internal market, several rights protected by the Charter (Articles 1, 7, 11, 21), and lastly but most crucially, Article 2 TEU. This was the first use of Article 2 TEU on its own merits, underscoring the gravity of the departure from EU values witnessed in Hungary.

In its ruling, the CJEU sitting as a full court agreed with the Commission on all the pleas in law, specifically finding for the first time an infringement of Article 2 TEU, based on the nature of the legislative provisions at issue as a coordinated series of discriminatory measures, amounting to a manifest and particularly serious curtailment of LGBTQI+ rights. Consequently, it found that the Hungarian law is “contrary to the very identity of the Union as a common legal order in a society in which pluralism prevails” (counterarguments based on national identity notwithstanding).

This approach seems to crystallise a test whereby the sheer scale and seriousness of violations of relevant EU law – for instance several rights of the Charter embodying Article 2 TEU values – is enough to demonstrate a departure from shared values and therefore lead to a breach of Article 2 as a whole (para 548). Moreover, in order to remain within the limits and scope of EU law, the CJEU underlined “only manifest and particularly serious breaches of one or more values common to the Member States may give rise to a finding [of Article 2 violations, which are] incompatible with the very identity of the Union as a common legal order of a society in which pluralism prevails.” This reasoning would suggest that systemic stigmatisation of the LGBTQI+ community in and of itself (i.e. without any link to other provisions of the acquis) would give rise to an Article 2 breach – although in practice, the offending behaviour at issue is more than likely to also infringe upon several directives or regulations (as it did in this case), which may or may not raise questions over the logical soundness of the Court’s argument (see here and here). As such, this judgment sets the stage for stronger and more systemic infringement proceedings in the future, which can use multiple severe violations to prove a pattern that ultimately triggers an Article 2 violation.  

What happens next?

Such an emphatic decision is bound to have consequences beyond the black letter of the law, both in Hungary – especially after a dramatic shift in its political landscape – and in the rest of the Union. After winning a super majority in Parliament on a pro-EU platform, newly elected Prime Minister Peter Magyar will have his first chance to prove his commitment to EU values and the EU legal order by swiftly implementing this judgment. After being sworn in (presumably in the next month), repealing the offending legislation should be high up on his priority list.  Considering that the legislation at issue was blatantly lifted from Putin’s autocratic playbook, there would be a great amount of symbolic significance in using this as one of the first olive branches extended to Hungary’s European partners.

Whether this is likely to happen, however, remains up to question. Magyar was conspicuously silent on LGBTQI+ rights during the campaign and did not mention the issue in his victory speech, beyond pledging to rule for all Hungarians. When directly asked, he remained vague by simply emphasising that the general right to freedom of assembly should be enjoyed by everyone. At the same time, there are significant incentives for compliance which inspire hope for a change of course in Hungary on this front (including not only the somewhat distant threat of financial penalties for non-implementation, but also horizontal enabling conditions that tie LGBTQI+ rights restoration to €700M worth of frozen EU cohesion funds). Nonetheless, the offending legislation is just the tip of the iceberg when it comes to the state of LGBTQI+ rights in the country.

In the present judgment, the Court was particularly vocal, in its finding of several violations of the Charter, in stressing that laws of this kind reinforce stigmatisation of sexual identity and orientation in the public sphere, leading to hateful behaviour and fostering social “invisibility” for the marginalised communities targeted, contrary to the value of human dignity. Additionally, it also reaffirmed, in light of its previous jurisprudence, that MS have “a positive obligation to ensure respect for everyone’s right to develop a sexual identity” (at 447). Conversely, and in line with the aforementioned reasoning as to what constitutes a freestanding breach of Article 2 TEU, the Court ruled that the Hungarian law violates said Article because it seriously and manifestly breaches LGBTQI+ rights, such as respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities (at 556).

This is of huge importance, as it can serve as the basis to consider the broader body of anti-LGBTQI+ laws as contrary to EU law. Indeed, it is crucial to note that the case at hand is not comprehensive of all the restrictions imposed by the Orbán government on LGBTQI+ rights, and that efforts must therefore not be limited to repealing the legislation at issue. For instance, in 2018, the Fidesz government banned gender studies from state-accredited university programmes; in 2020 it banned legal gender recognition and adoptions for rainbow families. These measures, by the logic of the CJEU, fit within the pattern of persistent stigmatisation of non-cisgender and non-heterosexual persons, as well as breaching the principle of non-regression by lowering the protection of LGBTQI+ rights over time. Therefore, in order to truly comply with the spirit of the judgment, the new government should go further and repeal these discriminatory pieces of legislation as well.

Secondly, there is a long and growing list of landmark CJEU rulings that do not necessarily originate from Hungary, but are nonetheless not complied with by national authorities here, including judgments on freedom of movement and family life (Coman, V.M.A.; Cupriak-Trojan; Rzecznik Praw Obywatelskich), on legal recognition of transgender identity (Mirin; Deldits; Shipov), and on protection of human dignity for LGBTIQ+ people (Makeleio and Zougla). Without respect for these precedents, even after the repeal of the legislation at issue, the situation of LGBTQI+ people in Hungary would remain acutely precarious.

Thus, the Commission and Member States must insist on full implementation of all outstanding jurisprudence, in line with the principle of sincere cooperation, free movement, and the internal market. Generally speaking, the aforementioned line of jurisprudence – which remains mostly unimplemented also in the respective countries of origin – highlights that more is to be done to preserve not only equality, but also a harmonious legal order where all EU citizens can enjoy their EU-derived rights. This new judgment’s emphasis on human dignity sets a strong precedent, and should spur better monitoring and enforcement efforts across the Union.

Lastly, beyond Hungary, there are several member states that have emulated Orban’s so-called “LGBT propaganda” laws. Similar measures to the ones found foul of EU law in this judgment are in force in Bulgaria and Slovakia, and are currently being discussed in other MS, such as Portugal and Lithuania. This judgment should shift scrutiny in their direction, to make sure Hungary is not simply replaced by an exponentially larger number of Member States freely pursuing the same (unlawful) anti-LGBTQI+ agenda.

What to learn from this: a new standard we should be proud of and build on

This case marks a significant breakthrough in how the EU approaches violations of its founding values, and one that should serve as a template for future litigation. Firstly, this is a massive improvement from the initial line taken by the Commission at the dawn of backsliding in Hungary, moving closer to the idea of systemic infringement proceedings that clearly show a pattern of departure from the commitments at the very basis of the integration process. As argued by AG Capeta, it is important to frame these sort of violations, especially those that affect a marginalised group, as a violation of a value like human dignity, which “constitutes the actual Grundnorm (basic norm) of post-World War Two European constitutionalism against the horrors of totalitarianism which denied any value of the human person.”

Equally significant is the unprecedented show of solidarity from Member States and the European Parliament. A total of 16 MS intervened before the Court, together with the EU’s democratic body par excellence, which further underlines the widespread commitment to shared values and adds a layer of democratic legitimacy and accountability to the legal process. This is an effective way to bolster the Commission’s case, while also diffusing (bad faith) arguments as to EU priorities being dictated by a detached technocratic “Brussels elite”, instead proving that values matter to the vast majority of the Union

The combination of a strong response from the Member States, the EP and the CJEU should thus inspire confidence in the Commission to bring similarly framed cases on these salient issues in the future, especially in the face of the aforementioned Member States currently enforcing anti-LGBT propaganda laws. Taking Slovakia for example, it is clear that the regression of LGBTQI+ rights operated under Fico since 2023 can satisfy the test for manifest and serious curtailment of rights amounting to an Article 2 TEU infringement – as the reforms have included halting funding for comprehensive sex-ed initiatives, removing guidelines banning forced sterilisation for transgender persons, mandating parental consent for any teaching on sexuality, denying same-sex couples from legal recognition as parents, and entirely banning legal gender recognition for non-cisgender individuals. In this sense, the judgment at hand is timely and its impact should be felt beyond Budapest, at least by giving the Commission leverage to pursue cases against any government operating such deliberate curtailment of values.

As for Hungary, the first test will be whether the Magyar government will be willing to repeal the legislation which bans the Budapest Pride. This is a very time-sensitive issue, since unless the law is off the books by May 28^th, the organisers will not be able to obtain the necessary permits within the required 1-month window.

Ultimately, this judgment is to be welcomed as a seminal piece of EU jurisprudence, and one that expands both the justiciability of EU values, and the protection of LGBTQI+ rights. Moreover, it should be seen as the future of values-related litigation, promoting wider accountability and clearly demarking the Union’s commitment to democratic values in the face of aspiring autocrats. At a time in which fundamental values and specifically minority rights are under attack globally, this is a powerful signal. However, it is paramount that the momentum remains strong, lest yet another powerful values-related decision remains merely a paper tiger.

Holy Orders or Higher Law? Praying for a Karlsruhe intervention

 

Jonas Siebold

Photo credit: ReinhardHauke, via Wikimedia commons

A lot is at stake for the Protestant Church in Germany. In the pending “Egenberger” case (2 BvR 934/19) before the German Federal Constitutional Court (FCC) in Karlsruhe, nothing less than the church’s right to self-determination itself is at issue. “Egenberger? Karlsruhe?” Wait a minute. Attentive European Union lawyers will certainly be familiar with this case. But first things first.

I. The Case

In 2012, Vera Egenberger applied for a position at a Protestant organisation (the Evangelisches Hilfswerk für Diakonie und Entwicklung). The job description required a church membership, which Egenberger did not have. Ultimately, she was not invited for an interview, while the candidate who got the post was a Protestant Christian. Ironically enough, the position was for bout producing a report on the elimination of discrimination.

Assuming that her application had been rejected because she did not belong to any denomination, Egenberger claimed compensation under Section 15 (2) of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). Nevertheless, Section 9 (1) of that Act allows for discrimination on religious grounds, if a religious requirement constitutes a justified occupational requirement, having regard to the self-perception of the religious society concerned, in view of its right of self-determination or because of the type of activity.

II. The Judgment

The German Federal Labour Court (Bundesarbeitsgericht), as court of last instance, referred several questions to the Court of Justice of the European Union (CJEU) as a preliminary reference. Questionable was the interpretation of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, which includes a requirement of equal treatment on grounds of religion (subject to exceptions).

In its judgment (Case C-414/16), the CJEU responded that religious communities invoking the necessity of religious affiliation for filling positions only align with Article 4 (2) of Directive 2000/78/EC (which sets out a specific ‘genuine occupational requirements’ ground of justification as regards religious discrimination) when there is an “objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned”. Whether this is the case is subject to effective review by national courts. The Federal Labour Court then carried out the interpretation required by EU law and concluded that religious affiliation was not necessary for the position to be filled.

III. The Complaint

With a constitutional complaint to Karlsruhe, the Protestant organisation now aims to ensure that the question of the necessity of religious affiliation for a church position may only be answered based on the church’s self-perception, without control by national courts. As the Federal Labour Court followed the CJEU’s preliminary ruling, its judgment is insofar determined by EU law. Although the constitutional complaint is directed against the Federal Labour Court’s final judgment, the complainant indirectly aims for more – a review of the CJEU’s judgment.

Is that even possible? In principle not, according to the primacy of EU law, established in the CJEU’s landmark decision Costa/E.N.E.L. from 1964. Six years later the CJEU explicitly clarified in Internationale Handelsgesellschaft that this even applies for national constitutional law. Furthermore, the CJEU is exclusively responsible for the interpretation and application of EU law, according to Article 19 TEU.

So why is the Protestant organisation now coming up with the apparently far-fetched idea of taking legal action before the FCC? Admittedly, one or two European Union lawyers and CJEU judges would certainly agree with this approach. However, Karlsruhe is less monotheistic than its Luxembourg colleagues when it comes to the principle of primacy of EU law. While it accepts the primacy of EU law, it does not accept it in the absolute terms set out by the CJEU.

IV. The National Court’s Control

Under admittedly strict requirements, Karlsruhe reserved for itself three reservations of control over the primacy of EU law. In exceptional cases it reviews whether the European Union level of fundamental rights protection generally shrinks to a level below that which essentially corresponds to the German (Solange II review). Furthermore, if EU institutions manifestly overstep their competences (ultra vires review) or pursuant to article 23 (1) 3 in conjunction with article 79 (3) of the Basic Law, the inviolable core of the national constitutional identity is affected (identity review).

Even if perhaps the dogmatic amount of reasoning seems unique, numerous Member States’ courts share the perspective of a merely relative primacy of EU law. Such an understanding is a test for the Union’s cohesion but bearable due to the utmost restraint in reviewing. For Germany, this is demanded and ensured by the Basic Law’s openness towards European Union Law.

V. The Argumentation

But let’s get back on track. Which review could be considered for our complainant? The level of European Union Fundamental Rights protection is arguably stronger than ever before, so realistically only the ultra vires or identity review seem possible.

The defendants claimed that the CJEU fails to respect the status of religious communities as guaranteed in Article 17 TFEU. This is arguably not correct, as primary law and the directive require a balance to be struck between the self-determination of religious communities, which is anchored in national law but also protected by EU law and protection against discrimination. But this is a question of the judgment’s compliance with EU law and not exceeding competences.

Then, is the church’s right to self-determination, as enshrined in article 140 of the Basic Law in conjunction with article 137 (2) of the German Constitution of 11 August 1919 (Weimar Constitution), part of the inviolable core of the national constitutional identity? In principle, this can be considered. But not in general for every individual case, particularly for less strictly ecclesiastical activities like in Egenberger. This would hardly align with Karlsruhe’s narrow understanding of the constitutional identity, including only the core of human dignity in fundamental rights and fundamental principles like democracy or the rule of law. Finally, it would unduly jeopardise the fundamental rights of job applicants and employees.

VI. Conclusion

Therefore, the odds for a Karlsruhe intervention seem small and due to the argumentation presented unconvincing. It would be surprising if, after the fiercely debated PSPP-judgment from May 2020, the FCC revolts against the CJEU again, in this case of all cases. But who knows, maybe the Protestants’ prayers will be heard in Karlsruhe.

A decision is scheduled for 2025.

Headscarves at work: the Court of Justice clarifies when employers can ban them

 

Professor Ronan McCrea, University College London

 

Four years ago in the cases of G4S and Micropole, the Court of Justice issued its first major rulings on the compatibility of workplace policies that restrict the wearing of religious symbols by employees with the Framework Directive on discrimination in employment (Directive 2000/78).

 

In these rulings, the Grand Chamber of the Court held that the imposition on employees of a policy of visible neutrality of religion or belief amounted to indirect rather than direct discrimination provided that it was consistently applied to all forms of religion or belief. Policies that targeted the symbols of a particular faith, on the other hand, were to be regarded as directly discriminatory.

 

An obligation of visible neutrality, the Court held could, if sufficiently narrowly tailored, satisfy the test for indirectly discriminatory measures (legitimate aim, pursued by proportionate and necessary means) but was unlikely to be able to meet the test for directly discriminatory measures (genuine and determining occupational requirement).

 

The judgement was criticised both in the media and by some legal scholars. Eleanor Spaventa worried that the invocation of the right to run a business in Article 16 of the Charter of Fundamental Rights as a reason favouring the compatibility of restrictions on employee dress meant that Member States may not be able to take an approach more protective of religious freedom. She also argued that the Court had paid insufficient attention to the fact that neutrality rule might have a more pronounced effect on those of particular ethnic background or a particular gender. Similarly, Joseph Weiler faulted the Court, inter alia, for failing to provide adequate reasons as to why the goal of neutrality was a sufficiently weighty goal to justify the third limb of the proportionality test.

 

When these issues came before the Court again this year in the form of Article 267 references in two cases in Germany, the cases were allocated to the Grand Chamber. However, this was not an indication of a change of approach on the part of the Court. This week’s ruling in the (joined) cases, largely reaffirms the approach previously adopted by the Court although the ruling does provide some additional material that, at least partially, addresses some of the concerns of its critics.

 

Both cases related to employees disciplined for wearing a hijab at work. In IX v WABR eV (‘IX’) WABE, a non-denominational provider of child care services disciplined an employee who worked as a special needs carer for violating its internal rule that required those whose roles involved dealing with parents and children to observe strict political, religious and philosophical neutrality ‘in order to guarantee the children’s individual and free development with regard to religion, belief and politics’. This rule was not applied to those whose work did not bring them into contact with parents and children.

 

In MH Müller Handels GmbH v MJ (‘MJ’) a woman employed as a cashier and sales assistant was disciplined for wearing a hijab at work in violation of a workplace rule that prohibited the wearing of ‘conspicuous, large-sized signs of any political, philosophical or religious beliefs’.

 

There was some overlap in relation to the questions submitted by the national court in each case. In IX the Arbeitsgericht Hamburg asked the Court of Justice:

 

(a) Whether an instruction not to wear visible signs of religion or belief from an employer to an employee who, due to her Muslim faith wears a headscarf, should be regarded as direct or indirect discrimination ‘on grounds of religion and/or gender’ (Confusingly, the English version of the judgment refers to discrimination ‘on grounds of gender’. The French version refers to discrimination ‘fondée sur le sexe’ while the English version of the relevant Directive (Directive 2006/54) refers to ‘less favourable treatment on grounds of sex’. However, the Court refused to engage on the issue of discrimination on this ground on the basis that the referring court had limited its question to Directive 2000/78 which does not address this matter).

 

(b) Whether indirect discrimination on grounds of religion and/or gender can be justified when the employer is seeks to impose a neutrality requirement in order to meet ‘the subjective wishes of its customers’,

and

 

(c) Whether the Directive 2000/78 and Article 16 of the Charter preclude national rules that grant greater protection to freedom of religion or belief (in the light of the provisions of Article 8(1) of the Directive that allows Member States to have provisions more favourable to the principle of equal treatment than those laid down in the Directive.

 

In addition to asking whether national rules more favourable to equal treatment on grounds of religion were permitted (question c above), in MJ the Bundesarbeitsgericht also asked the Court of Justice:

 

(d) Whether the requirements of the directive in relation to justifying indirect discrimination are met by a rule that pursues a policy of neutrality by prohibiting only prominent and large-sized symbols of religion or belief (rather than all such signs).

 

In relation to question (a), the CJEU reiterated its previous ruling that the prohibition on discrimination on grounds of religion or belief applies equally to religious and non-religious philosophical and spiritual beliefs and that ‘since every person may have a religion or belief’ a rule that covers any manifestation of religion or belief without distinction ‘treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally’. Accordingly, such a rule does not constitute direct discrimination notwithstanding that such a rule is capable of causing ‘particular inconvenience’ to workers ‘who observe religious precepts requiring certain clothing to be worn’. In IX the Court noted that an employee wearing a cross had been required to remove it, something that appeared to confirm that the rule was applied across the board (though it noted that verification of this matter was a factual issue for the national court).

 

Having concluded that the rule in IX was potentially indirectly discriminatory, the Court went on to reiterate its finding in G4S Solutions such the indirect discrimination could be justified in the light of Article 16 of the Charter ‘in particular where the employer involves in its pursuit of [the neutrality] aim, only those workers who are required to come into contact with the employer’s customers.’ However, it added a slight gloss on the G4S ruling by noting that a ‘mere desire of an employer to pursue neutrality’ would be insufficient. An employer must, the Court held, demonstrate a ‘genuine need’ for such a policy, ‘taking into consideration, inter alia, the legitimate wishes off those customers or users and the adverse consequences that the employer would suffer in the absence of that policy.’ In MJ it further clarified that ‘the prevention of social conflicts’ in addition to customer preferences may also form the basis of such a demonstrated need.

 

Interestingly in relation to question (d), in MJ, the Court came to a slightly different conclusion in relation to the prohibition on conspicuous, large-sized signs. This rule is, the Court noted ‘liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign such as a head covering.’ Noting that where a rule is based on a criterion that is ‘inextricably linked to a protected ground’ it must be regarded as being directly discriminatory the Court then states that ‘where the criterion of wearing conspicuous, large-sized signs of political, philosophical or religious belief is inextricably linked to one or more specific religions or beliefs, the prohibition will mean that some workers will be treated less favourably than others on grounds of their religion or belief, and that direct discrimination, within the meaning  of [the Directive] may therefore be established’.

 

This seems rather confusing. The Court had already noted in its conclusion that the rule in IX was indirectly discriminatory that statistically, the ban applied almost exclusively to Muslim women. Yet in MJ it appears to say that because a ban on large sized signs might have a greater effect on those whose beliefs require the wearing of a head covering it may be ‘inextricably linked to a protected ground’ and therefore may be direct discrimination.

 

Perhaps what the Court is saying is that a ban on conspicuous, large signs amounts to a hidden targeting of the signs of a particular faith and therefore amounts to direct discrimination. This would be consistent with its previous rulings in G4S and Micropole where an instruction that focused on the symbols of one faith (‘no headscarf next time’) was found to render it more likely that a restriction would be found to be directly discriminatory. Unfortunately, the tortured way it expresses this point is liable to cause confusion in the future.

 

In relation to the question posed by both referring courts as to whether national provisions more favourable to equal treatment on grounds of religion or belief or freedom of religion and belief are permissible (question (c)), the ruling was clear. The Court stated that the Framework Directive ‘did not itself effect the necessary reconciliation between freedom of thought, conscience and religion and the legitimate aims that may be invoked to justify unequal treatment (…) but left it to the Member States and their courts to achieve that reconciliation’. The Directive has left a ‘margin of discretion to Member States taking into account the place accorded to religion and belief within their respective systems’. While this margin goes ‘hand in hand with supervision by the EU judicature’ the Court noted the lack of consensus on these issues amongst the Member States. Accordingly, ‘national provisions protecting freedom of thought, belief and religion , as a value to which modern democratic societies have attached great importance for many years, may be taken into account as provisions more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of the Directive.

 

 This ruling largely reaffirms the rulings in G4S and Micropole. Despite some confusion, it appears that neutrality requirements, if genuinely and systematically applied to all forms of religion and belief, are in general to be regarded as indirectly, not directly discriminatory. Customer preferences and the need to avoid social conflict may provide the justifications for any indirect discrimination that such neutrality policies involve.

 

It is disappointing that the Court chose not to address the issue of sex/gender discrimination on the narrow and technical grounds that that referring court had only mentioned Directive 2000/78 which does not cover this issue. With the national court having raised the issue of sex/gender discrimination, the CJEU could have given guidance as to how the relevant legislation in this area should be interpreted.

 

The Court does seem to have sought to address some of the critics of its previous rulings. This ruling has greater emphasis on the need for employers to demonstrate the necessity of a neutrality policy and the, admittedly confusingly phrased, conclusion that bans that selectively target large symbols are potentially directly discriminatory would seem to be a step towards stricter control of bans that amount to hidden targeting of one faith.

 

The Court has also addressed the concern that its invocation of Article 16 as a justification for neutrality policies precluded Member States from taking more protective measures.

 

Indeed, this underlines how the Court has maintained its cautious approach in its area. This seems justifiable. Amending the Framework Directive would need the unanimous consent of all Member States. If the Court were to get its interpretation wrong the chances of remedying this politically are very low.

 

As I have written before, Europe is in the midst of unprecedented religious change. After centuries of dominance in most Member States, Christianity is in rapid decline. Non-belief is in rapid growth, as is the Muslim population of Europe. Any one of these changes alone would produce endless unanticipated consequences. We do not have a store of precedents that tell us how coexistence is best achieved in this context. There are deep divisions between Member States on these matters.

 

Religion is hard for the law to regulate as it is both a usually immutable identity and a series of often controversial, chosen beliefs. The treatment that is appropriate for an immutable identity is often inappropriate for a set of beliefs and vice versa. A religious symbol can be worn to express a belief or to reflect one’s identity or simply as a matter of habit yet it is hard to design a law that can distinguish between these different situations. Objection to a religious symbol at work may often be the result of pure bigotry, but it may sometimes be a legitimate reaction to a controversial belief.

 

The management of religious diversity is equally tricky. For some states, coexistence is best achieved by requiring everyone to hold back on expressing their religious identity in shared contexts and by seeking to stress a shared a-religious citizenship. Other states have felt it best to protect religious expression and identity in a wide range of contexts. Each approach has its fans and its critics and the data as to which approach is better at producing inter-religious friendships, mutual respect and widespread adherence to liberal values is very mixed. In these circumstances it would be immodest in the extreme for the Court of Justice to decide it knew the best approach and to impose it on all 27 states.

 

That said, values are important and total deference on the part of the Court would be equally inappropriate. Opportunistic embrace of secularist principles by those with exclusionary agendas is a recurrent problem. A duty of neutrality must not be used as a disguised means of excluding minorities such as European Muslims. Both its previous rulings and IX and MJ see the Court taking incremental but significant steps that seek to prevent this by ensuring that any neutrality policy imposed by employers is applied consistently to all forms of religion and belief rather than targeting one faith. In Micropole, open targeting of the symbols of one faith was constrained, in MJ, the Court appears to move towards restricting hidden targeting to a greater degree (though it ought to have expressed itself more clearly on this point).

 

This will not bring an end to exclusionary practices in the workplace and falls short of the desires of some commentators but in the changing and unpredictable situation that Europe finds itself in, this is probably as big a step as it is wise for a multi-national court to take.

 

Barnard and Peers: chapter 9, chapter 20

Photo credit: mizrahilaw.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

Salvation outside the church? The ECJ rules on religious discrimination in employment

Dr Ronan McCrea, Senior Lecturer in Law, University College London

Background

The Court of Justice has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.

In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:

‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’

Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.

As discrimination in employment on grounds of religion is regulated by EU law, in the form of Directive 2000/78 (which also bans discrimination on grounds of disability, age or sexual orientation in employment), when the case came before the Bundesarbeitsgericht (Federal Labour Court) it decided to make a reference to the Court of Justice to clarify the interpretation of EU law. The key issue in the reference was whether the scope of the exemption from the duty not to discriminate on grounds of religion or belief granted by German law to religious organisations was compatible with Directive 2000/78.

The issue of exemptions from the prohibition on discrimination on grounds of religion for religious employers is addressed by Article 4(2) of the Directive which states:

‘…. in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.’ (emphasis added).

The relevant German law implementing the directive provided that:

‘….a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a given religion or belief constitutes a justified occupational requirement, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities.’ (paragraph 9(1) of the Allgemeine Gleichbehandlungsgesetz, emphasis added).

This legislation, has been interpreted in the light of the German constitutional guarantee that states:

‘Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.’ (Grundgesetz Article 140).

This has meant that the consistent approach of the German courts has been that the decision as to whether a particular role within a religious organization needs to be limited to those of a particular faith was for the religious employer to take. The role of the courts has been limited to plausibility review, on the basis of a religion’s self-conception defined by belief.

The national court harboured doubts as to whether the approach of German law in allowing the religious employer to determine for itself, subject only to plausibility review by the courts, whether its beliefs required a particular role to be reserved to those of a particular faith, was compatible with the directive and therefore made a reference to the Court of Justice under Article 267.

The Ruling: A More Balanced Approach Needed

The Court of Justice’s ruling made it clear that German law had gone too far by allowing such a wide scope for religious employers to determine for themselves whether a particular job could be reserved to those of a particular faith.

It noted that Article 4(2) of the Directive allowed the discrimination on grounds of religion only if having regard to the nature of the activity concerned or the context in which it is carried out, ‘religion or belief constitute[s] a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’ and concluded that:

‘if review of compliance with those criteria were, in the event of doubt as to that compliance, the task not of an independent authority such as a national court but of the church or organisation intending to practise a difference of treatment on grounds of religion or belief, [this provision of the Directive] would be deprived of effect.’

Interestingly, although the employer had cited both the guarantee of freedom of religion or belief (Article 10 of the Charter of Fundamental Rights) and Article 17 of the Treaty on the Functioning of the European Union, which provides that the Union ‘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 also relied heavily on constitutional principles to bolster its conclusion that excessive leeway had been granted to religious employers by German law.

The Court noted that Directive 2000/78 was merely a ‘specific expression, in the field covered by it, of the general prohibition of discrimination laid down in Article 21 of the Charter’ (which sets out a general ban on discrimination). It also noted that that when an individual establishes before a national court facts from which it may be presumed that there has been direct or indirect discrimination then, under Article 10 of the Directive, it is for the respondent to prove that there has been no breach of that principle. Thus, the need under Article 47 of the Charter to provide effective judicial protection of EU law rights meant that restricting the ability of the national courts to review the decision of an employer to impose a discriminatory requirement would be contrary to EU law.

Next, the Court held that the objective of Article 4(2) of the Directive was to ensure “a fair balance” between the autonomy rights of religious organisations and the right of workers to be free from discrimination. The Directive “sets out the criteria to be taken into account in the balancing exercise” and in the event of a dispute it must be possible for the balancing exercise to be reviewed by a national court. For the Court, the commitment to respecting the status of religious organisations in Article 17 of the Treaty could not change this conclusion.

That article’s function was:

‘to express the neutrality of the European Union towards the organization by the Member States of their relations with churches and religious associations and communities […] [and] is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review.’

Guidance on the Test to Be Applied

Having found that the German legislation was not compatible with the Directive the Court then had to address two further interesting issues. First, it had to give guidance to the national court on the question of how the ‘fair balancing’ ought to be carried out and then it had to advise on how to implement the consequences of its finding in the case.

In relation to how to carry out the ‘fair balancing’ the Court had to walk a tightrope. It acknowledged that under ECHR case law, states are precluded from assessing the legitimacy of the beliefs of a religious organization. However, it also had to ensure that the imposition of an occupational requirement relating to religion or belief was, in the words of the Directive ‘genuine, legitimate and justified, having regard to [the] ethos [of the religious employer]’. Thus it had to decide how to recognize the necessarily subjective requirements of the ethos of the employer, with the seemingly objective requirements of the ‘genuine, legitimate and justified’ test.

The Court adopted an approach that is significantly more objective than the approach taken in German law. It set out a test under which religious organisations must show an ’objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned.’ Thus, in order to meet Article 4(2)’s requirements that the difference in treatment on grounds of religion be ‘genuine, legitimate and justified’ the Court held that:

‘To be considered ‘genuine’: ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy.’

To be considered ‘legitimate’ it found that the national court must ‘ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy.’

And to be considered justified the CJEU set down that ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.’

Finally, although a proportionality requirement is not included in the text of Article 4(2) (and is included in other Articles of the Directive), the Court held that as proportionality is a general principle of EU law, the exemption given by Article 4(2) is to be read as being subject to a proportionality requirement.

Applying the Ruling

Given the possibility of a clash between German law and the requirements of the Directive the German court asked for guidance on how it should proceed if it proved impossible to interpret domestic law so as to comply with the Directive (bearing in mind the contra legem exception in the Marleasing line of case-law on the indirect effect of Directives; ie a national court cannot be required to interpret national law consistently with a Directive to the extent of ignoring the express wording of national law).

The Court seemed to doubt that an interpretation consistent with EU law was impossible, noting that the duty to interpret national law consistently with EU law included a duty for national courts ‘to change their established case-law where necessary’ (referring to the DI judgment on age discrimination, discussed here). However, it went on to say that should consistent interpretation prove impossible then the Court should disapply national law and give effect to the relevant EU law rights itself.

It justified this position on the basis that Directive 2000/78 did not establish the right to equal treatment. Rather it sets out a framework for combatting discrimination on various grounds. The right to equal treatment is, the Court held, a general principle of law and is enshrined in Article 21 of the Charter. Given that Article 47 of the Charter requires that adequate judicial protection be given to such rights, national courts have to ensure ‘the judicial protection deriving for individuals from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.’ This develops earlier case law on the issue of when the Charter itself does (and does not) have direct effect, in particular the AMS case discussed here; and it confirms the UK case law on the direct effect of Article 47 (Vidal-Hall and Benkharbouche, discussed here and here).

Conclusion

The Court of Justice has given a notably constitutionalized interpretation of the Directive in this case. It has relied on the Charter and general principles of law to read a proportionality test into Article 4(2) that did not appear in the text. It has insisted on proportionality as the framework within which the ‘fair balancing’ of the autonomy rights of religious employers and equal treatment rights of employees must take place.

This approach is in tension with recent trends in the caselaw of the Strasbourg Court. In cases such as Fernandez Martinez v Spain, the Court of Human Rights had moved away somewhat from the balancing of rights seen in its earlier caselaw and had moved closer to the ‘ministerial exemption’ model used in the United States, under which religious organisations have an absolute exemption from non-discrimination laws in respect of roles that include religious functions. Given the strong emphasis placed on proportionality by the EU legal order, unsurprisingly, in Egenberger, the Court of Justice has clearly come down in favour of the balancing approach (see R. McCrea “Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the Secular State” Oxford Journal of Law and Religion (2016) 5(2) 183-210, 198-99).

The Court’s insistence that EU non-discrimination law merely codifies a self-executing (and horizontally directly effective) constitutional general principle of non-discrimination law represents a continuation of the controversial line of cases beginning in Mangold which has attracted significant criticism, including from national courts given the potential for legal uncertainty that such an approach involves. Here, the Court of Justice has made it clear that the EU’s constitutional commitment to proportionality means that religious bodies may only impose discriminatory conditions on employees when it is proportionate to do so and national courts must be empowered to ensure religious employers do not exercise their right to discriminate in a disproportionate way.

This is in tension with the approach adopted by the German legislature which, in the light of German constitutional guarantees of religious autonomy, gave very restricted powers to the courts to second guess the decisions of religious bodies in this way. Given that EU and German constitutional norms appear to be in tension with each other in this way it will be interesting to see how this ruling is applied by the national court. The German constitutional provisions on religious autonomy go all the way back to the Weimar constitution and are taken very seriously, though it may be an exaggeration to view them as constituting the kind of core ‘constitutional identity’ that might trigger a refusal by the German courts to give primacy to EU law.

Barnard & Peers: chapter 9, chapter 20

Photo credit: Wikimedia Commons

Wearing the veil at work: Achbita and Bougnaoui - Can a duty to reasonable accommodation be derived from the EU concept of indirect discrimination?

Sara Benedi Lahuerta, Lecturer in Employment Law, Southampton Law School

The Islamic headscarf issue has finally reached the Court of Justice of the European Union (CJEU) through two preliminary references, Achbita and Bougnaoui, issued by Belgian and French courts, respectively. While the CJEU has –directly or indirectly– dealt with religious freedom issues before in the context of the internal market (see eg Van Duyn v Home Office) or the right to asylum (see Bundesrepublik Deutschland v Y and Z), this is the first time that the CJEU has ever been asked about religious discrimination under Directive 2000/78 (the 'employment equality' Directive), although the latter prohibits religious discrimination in employment within the EU since 2000. In addition, these are the first two cases where the CJEU is confronted with the issue of whether restricting the use of the Islamic headscarf at work can amount to religious discrimination. In contrast, several national jurisdictions* and the European Court of Human Rights (ECtHR) (see eg Ebrahimian v France) have already dealt with this matter.

This thus is an excellent opportunity for the CJEU to position itself as regards the ECtHR’s case law on religious dress and to clarify how the employment equality Directive should be interpreted in religious discrimination instances. Indeed, both cases have been assigned to the Grand Chamber, which signposts their potential importance, and the hearings are scheduled for today.

Background of the disputes

These two cases have some common features: the applicants are Muslims working for private companies; they both used to wear the hijab (ie the Islamic veil that covers the head and the chest, but not the face) at work; and, in both cases, their employer considered that this was in conflict with the respective organisations’ neutrality policy, so after refusing to remove the hijab at work, the applicants were dismissed. Bougnaoui and Achbita should thus be distinguished from the ECtHR case SAS v France (see a commentary here), which concerned the French ban to wear the burqa and the niqab (ie the Islamic veils that cover the full body, including the face) in public spaces (and not within a private company, as it was the case in Bougnaoui and Achbita).

On the other hand, however, there are also some differences between these two cases. Firstly, Bougnaoui was wearing the headscarf from the outset, that is, from the very first day she was working for the employer (Micropole Univers). In contrast, Achbita only decided to start wearing it during working hours after being in employment for three years with the company ‘G4S Secure Solutions’ (she nevertheless always wore it outside work). Secondly, Bougnaoui worked as an engineer who spent some of her working time at Micropole Univers’ premises, and some other time working at clients’ premises. The company’s position was that she should not wear the hijab when she had to be in contact with clients (either at the company’s own premises or at the clients’ offices), but she was allowed to wear the hijab the rest of the time. Conversely, Achbita, who worked as a receptionist, was not allowed to wear the headscarf at all. Finally, while in Bougnaoui there was an express complaint of a client who was ‘inconvenienced’ by the hijab and requested that she did not wear it the next time, according to the information publicly available, in the Achbita case there was not an explicit client complaint.

The questions asked by the referring courts are also different. In Achbita, the Belgian court asks whether the employer’s neutrality rule amounts to direct discrimination, while in Bougnaoui, the French court asks whether the neutrality requirement can amount to an occupational requirement (art 4(1), employment equality Directive) if it is a client’s demand.  In my view, however, the central issue at stake in both claims is whether an employer’s duty to accommodate religious practices can be derived from the EU concept of indirect discrimination (art 2(2)(b), employment equality Directive).

The questions asked by the national courts

Direct or indirect discrimination?

Neutrality rules are normally classical examples of the type of policies that can amount to indirect discrimination. Typically, they are not introduced because some employees profess a given faith, but rather to preserve the organisation’s image or the principle of secularism. So they usually are neutral on their face and they apply to everyone, but in practice they can put at disadvantage certain groups, eg people who feel compelled to express their religious believes through certain religious practices or dresses. Indeed, in this case, both claimants were arguably put at disadvantage by the neutrality policies, and so would have been anyone trying to wear a religious symbol or dress in their respective workplaces. It thus seems relatively straightforward that these neutrality policies can amount to indirect discrimination.

However, there may be instances where a particular policy or practice can amount to either direct or indirect discrimination depending on the specific factual circumstances surrounding the case. As the CJEU has recently noted, the key element to differentiate between direct and indirect discrimination is that: ‘[i]f it is apparent that a measure which gives rise to a difference in treatment has been introduced for reasons relating to [the protected characteristic], that measure must be classified as ‘direct discrimination’ within the meaning of [EU law]. By contrast, indirect discrimination […] does not require the measure at issue to be based on reasons of that type. […] It is sufficient that, although using neutral criteria not based on the protected characteristic, it has the effect of placing particularly persons possessing that characteristic at a disadvantage’ (CHEZ Razpredelenie Bulgaria AD, paras 95-96).

The information publicly available on the Achbita case suggests that the company’s neutrality policy existed before she started wearing the headscarf at work. However, it seems that after the conflict with the claimant arose, and ‘[f]aced with the persistence of the employee to wear the headscarf during working hours, the company’s board of directors decided to amend work regulations in order to forbid the workers to wear any visible symbol expressing their political, philosophical or religious beliefs’.** This suggests that there might be a causal link between the employer’s decision to ban wearing visible religious symbols and Achbita’s decision to start wearing the hijab at work. While this is a matter of proof to be considered by the national court, if there is enough evidence to suggest that this prohibition was introduced because of the religious conflict that arose between Achbita and the company, it could arguably amount to direct discrimination.

Can a client’s ‘neutrality requirement’ amount to an occupational requirement?

Whether the policies at stake in these two cases amount to direct or indirect discrimination, at the justification stage, the employers could try to rely on article 4(1) of the employment equality Directive to argue that not wearing the headscarf at work is an occupational requirement, in other words, that it is genuinely necessary ‘by reason of the nature’ of the job ‘or the context in which [it is] carried out’, and that requiring this is legitimate and proportionate. However, it seems that this argument was only put forward in Bougnaoui.

The fact that in that case a client requested that in the future the claimant did not wear the hijab resonates with the Firma Feryn case, where a Belgian company director publicly stated that he was not willing to hire Moroccans because he had to comply with its ‘customers requirements’, who did not want domestic alarm systems being installed by ‘immigrants’ (AG Poiares Maduro’ Opinion in Firma Feryn, para 4). In that case, AG Poiares Maduro concluded that not hiring Moroccans for that reason amounted to direct discrimination –which was confirmed by the Court– and he noted that the fact that customers were ‘unfavourably disposed towards employees of a certain ethnic origin’ simply ‘illustrate[d] that “markets will not cure discrimination” and that regulatory intervention is essential’ (paras 18-19 of the opinion).

In Bougnaoui, not wearing a headscarf was not genuinely necessary and determining to successfully perform the substance of the applicant’s job as an engineer. Furthermore, the occupational requirement exception is only applicable to ‘very limited situations’ (recital 23, employment equality Directive) and exceptions to the principle of equal treatment should be interpreted strictly (Prigge v Lufthansa, paras 56, 71). Therefore, the client’s request that Bougnaoui should not wear the headscarf should not be interpreted as an acceptable occupational requirement, as defined in article 4(1) of the employment equality Directive. Although the employer could also try to rely on article 2(5) of the Directive to justify this policy arguing that it was necessary to protect the rights and freedoms of others, the mere fact that the client did not like watching the applicant wearing the headscarf does not seem a legitimate reason to claim that third parties’ ‘rights and freedoms’ were affected.

The key underlying issue: can a duty to accommodate religious practices be derived from the EU concept of indirect discrimination?

Under EU law, the employer has a duty to reasonably accommodate disabled persons (art 5, employment equality Directive), and to some extent pregnant women (Directive 92/85/EEC, art 5(1)). While EU law does not formally recognise this duty for any other ground, some academics argue that it could be derived from the concept of indirect discrimination,*** as it has been the case in Canada (Ontario Human Rights Commission (O’Malley) v Simpsons-Sears [1985] 2 SCR 536). This could be especially suitable for cases where religious practices clash with the protection of a legitimate objective or with the protection of the rights and freedoms of others.

Indeed, while the ECtHR has not explicitly recognised a duty of reasonable accommodation for religious believes, in Thlimmenos it stated that:

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. (Thlimmenos v Greece, para 44)

This effectively means that states should accommodate persons who have different needs unless there is an ‘objective and reasonable justification’ not do it. In other words, the ECtHR suggests that the ‘reasonableness’ of accommodation should be analysed as part of the objective justification test which is inherent to indirect discrimination and entails considering whether the failure to treat the claimant differently pursues a legitimate aim and is proportionate.

The ECtHR has been reluctant to apply this principle in religious discrimination cases in the education sector  (see eg Dahlab v Swistzeland; Sahin v Turkey; Dogru v France) and in the public sector (see eg X v UK, Kosteski v Former Yugoslavia Republic of Macedonia, Ebrahimian v France). However, when the ‘accommodation conflict’ arises outside an educational environment and between private parties (ie when there is no need to preserve state’s neutrality), the ECtHR seems to put a lower threshold to find that the rule at stake is not justified, and thus, the religious practice should be accommodated. That was the case in  Eweida v UK , where –like in Bougnaoui and Achbita– the religious accommodation conflict arose within a private company.

Within the EU, the CJEU has outlined the principle of equal treatment as requiring not only that identical situations are treated in the same manner, but also that different situations are treated differently (see eg Joint Cases T-18/89 and 24/89, Tagaras; Case T-10/93, A v Commission), which echoes the ‘reasonable and objective justification’ requirement recognised by the ECtHR in Thlimmenos. Accordingly, the same reasoning could be followed by the CJEU in a case concerning a religious accommodation conflict. In fact, in Prais the CJEU already accepted that the accommodation of religious believes was ‘desirable’, although not required on the facts. Prais was a Jewish applicant to an EU civil service competition. She asked for the date to be changed because it coincided with a Jewish holiday that forbids travelling and writing. When her request was rejected, she argued that it amounted to a violation of the Staff Regulations, which established that candidates should be selected without distinction on grounds of religion. The Court recognised that the appointing authority ‘should […] endeavour to avoid such [religious] dates’, but because she had not informed the Council before fixing the date, the Council was not obliged to accommodate Prais’ believes (paras 16-18).

Against this framework, and given the parallel between the ECtHR and the CJEU’s definitions of equal treatment, it could be expected that in Bougnaoui and Achbita the latter will follow the approach of the ECtHR in Thlimmenos and Eweida to recognise –at least tacitly– that a duty to reasonably accommodate religious differences can be derived from the concept of indirect discrimination. It will be interesting to see whether the Grand Chamber takes this route or it follows a different approach to address this issue.

Photo credit: Mizrahilaw.com

Barnard & Peers: chapter 9, chapter 20

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* See eg the Danish case Føtex, 22/2004 No.U.2005.1265.H (Supreme Court, 21 January 2005); the UK case Azmi v Kirklees MBC [2007] ICR 1154 (EAT); the Belgian case Hema (Tongres Labour Court, 2 January 2013) and the French case Association Baby Lou, decision No S 13/02981 (Court of Appeal of Paris, 27 October 2013).

** E Bribosia, ‘The preservation of the neutral image of a private company may justify the dismissal of employees wearing the headscarf’, European network of legal experts in the non-discrimination field (11 January 2012), citing the Judgment in case G4S, A.R. 2010/AA/453 en 2010/AA/467 (Antwerp Labour Court of Appeal, 23 December 2011).

*** L Waddington, ‘Reasonable Accommodation’ (2011) 36 NTM/NJCM-Bulletin 41, 49; K Alidadi, ‘Reasonable accommodation for religion and belief: adding value to art. 9 ECHR and the EU’s anti-discrimination approach in employment?’ (2012) 37 ELRev 693, 707-710; S Benedi Lahuerta, ‘Taking EU Equality Law to the Next Level: in Search of Coherence’ (2016) European Labour Law Journal (forthcoming).