Religious symbols occasionally become a topic of discussion, mostly associated to assertive secularism, but also under the pretext of security concerns. The ECtHR’s take on the topic relies heavily on its margin of appreciation doctrine, and this commentary will focus on the CJEU approach to the issue.

In July 2021, the CJEU finalized its joined case of WABE and MH Müller Handel, which was based on two cases by two women in Germany who had been dismissed from their jobs for wearing the Islamic headscarf at work. One of the two consolidated cases concerned the refusal to allow a pharmacy employee (Müller (C-341/19)) and the other a kindergarten employee (WABE (C-804/18)) to wear the headscarf. MJ’s employer, Müller Handels GmbH, asked her not to come in with “conspicuous, large-sized political, philosophical or religious signs”. A similar situation occurred with IX and her employer, WABE. Employees must not carry any visible signs of their political, philosophical, or religious beliefs. Both companies claimed that their employees wearing headscarves would undermine the companies’ neutrality towards customers.

In WABE, IX’s allegations are composed of three points: First is direct discrimination based on the company policy that prohibit the Islamic headscarf. Second is gender-based discrimination. The last allegation refers to discrimination on ethnic grounds, as the company policy has a greater impact on immigrant women. In the Müller case, MJ put forward two arguments: The company’s rules are contrary to the freedom of belief in the German Constitution, and the policy of neutrality only applies if only the measure taken is proportionate.

The Court’s Legal Assessment

The CJEU considered Directive 2000/78, also known as the Equality Framework Directive, together with the general comportment of workplaces. Accordingly, the employers in the concrete case approached their employees at an equal distance. The same warning given to employees wearing Islamic headscarves was also applied to employees wearing crosses. The companies party to the case did not generalize this attitude, they did not personalize it to one person. After making this interpretation, the CJEU said that the companies had not acted contrary to Directive 2000/78.

The issue of direct or indirect discrimination is important when evaluating the Directive. This is because while direct discrimination is unlawful, indirect discrimination could be possible under certain circumstances. This should be evaluated according to Article 2(2)(b)(i) of the directive.

According to the Court, the requirement to carry religious symbols not only for certain groups but for all groups is not considered direct discrimination. The Court also stated that the company applied this practice equally to everyone and contrary to the domestic court, held that there was no direct discrimination. In terms of indirect discrimination, it concludes that the employer’s desire to present a neutral image can be interpreted in the context of freedom of establishment under Article 16 of the Charter of Fundamental Rights of the European Union (CFREU). The rights of parents over their own children can also be examined in the context of Article 14 CFREU.

The Court addressed whether the legitimate aim is for employers to maintain a neutral image in the eyes of their customers. In addition to the employer making this claim, the company itself must also have a negative impact on the workplace. Evidence must be adduced (paragraph 67). In other words, mere “neutrality” cannot be a sufficient and legitimate aim. A limit must be established here.

The Court notes that Directive 2000/78 leaves a margin of appreciation to the Member States of the EU in matters relating to freedom of religion and conscience. The proportionality assessment must be interpreted as striking a fair balance.

Opinions

For the purpose of the non-discrimination law, the understanding of equality should be interpreted in a way that preserves differences, not just formal equality (Sandhu, 2023).

Article 9 of the European Convention on Human Rights is the most prominent legal text on freedom of thought, conscience and religion in Europe. According to the Article “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 14 (Prohibition of discrimination) is also closely related to this issue. This is the assurance of a non-discriminatory environment.

In terms of case law, the ECtHR dealt with freedom of belief in the British Airways case (Eweida v United Kingdom), where the applicant’s wearing of a crucifix in the airline company where he worked as an employee due to her faith led to a proposal by the company to change her position. Here, the Court ruled that the British state had failed to protect freedom of belief. A fair balance was not struck here. There is an inconsistency between the judgments of the ECtHR and the Court of Justice of the European Union. While the ECtHR preferred to strike a balance between the parties, the CJEU here favored the claims of the employers. The assessments were made without going into detail.

The CJEU has previously held in different judgments that the assessment of whether a prejudicial practice at the workplace is established must be made separately. Where an employer restricts an employee’s religious freedom by applying neutrality rules, part of the proportionality test and the employer must prove economic harm as justification for indirect discrimination (see Achbita v. Belgium).  It also seems contradictory to say that there was no direct discrimination in WABE, whereas there was in Müller. It can be seen from this that discrimination was not examined in detail: In the Müller case, the symbols banned in the workplace were those of conspicuous size. In the WABE part, the issue of whether the ban on headscarves constitutes discrimination on the grounds of sex because only women wear headscarves has not been examined sufficiently. On the other hand, the CJEU’s consideration of Article 16 CFREU from the employer’s point of view and Article 10 CFREU from the employee’s point of view is of particular importance in addressing the balance between the two.

The CJEU did not carry out an adequate separation assessment in this case and did not reach a correct cut-off for the reasons enumerated.

References:

Sandhu, Aqilah, (2023, September 25). From “Freedom“ to “Equality“? (Re-)Framing the Freedom of Religion in Terms of Non- Discrimination [Conference presentation abstract]. 3rd International Summer School: “Human Rights in Theory and Practice“ – Leipzig University.