Abstract
Two years ago, commenting on a judgment delivered by the Court of Justice of the European Union (CJEU or Court of Justice), Joseph Weiler made a resounding statement regarding religious freedom. I am not sure his message has been echoed as much as it deserves. As shown below, the judgment was part of a pair or a couple, and as such has been repeatedly discussed. This twofold case law has given rise to a considerable number of comments and analyses since March 2017. In March 2020, the Fundación Coloquio Jurídico Europeo had scheduled a workshop on this case law having Weiler himself as a keynote speaker. The following considerations depart from this so far frustrated workshop.
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Notes
- 1.
Samira Achbita, Centrum voor gelichkheid van kansen en voor racismebestrijding and G4S Secure Solutions NV (C-157/15), 14 March 2017. ECLI:EU:C:2017:203. Request for a preliminary ruling from the Hof van Cassatie (Court of Cassation, Belgium). Opinion of Advocate General Juliane Kokott, 31 May 2016, ECLI:EU:C:2016:382.
- 2.
Weiler (2017), pp. 989–1018.
- 3.
Along with Asma Bougnaoui, Association de défense des droits de l’Homme (ADDH) and Micropole SA (C-188/15), 14 March 2017. ECLI:EU:C:2017:204. Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France). Opinion of Advocate General Eleanor Sharpston, 13 July 2016, ECLI:EU:C: 2016:553.
- 4.
- 5.
See fn. 4 above.
- 6.
And even before that, in Hennette-Vauchez and Wolmark (2016) already discussed the Opinion of Advocate General Juliane Kokott hal-univ-paris10.archives-ouvertes.fr.
- 7.
This workshop was suspended in extremis because of the COVID-19 outbreak in Madrid. Workshop no. 83 of the Fundación Coloquio Jurídico Europeo, “El Tribunal de Justicia UE sobre el pañuelo islámico en el lugar de trabajo. A propósito de los casos Achbita y Bougnaoui”; speakers: Joseph H. H. Weiler and Pedro Cruz Villalón; moderator of the discussion: Marián Ahumada; scheduled for 12 March 2020.
- 8.
Council Directive 2000/78/EC, of 27 November 2000, establishing a general framework for equal treatment in employment and occupation.
- 9.
See the CJEU’s DecNat database (http://www.aca-europe.eu/index.php/fr/dec-nat-fr) for national court decisions arising from judgments delivered as a result of requests for preliminary rulings. For Achbita, see Hof van Cassatie, arrest van 09/10/2017, Samira Achbita et Centrum voor gelijkheid van kansen en voor racismebestrijding / G4S Secure Solutions NV, at: http://jure.juridat.just.fgov.be/pdfapp/download_blob?idpdf=N-20171009-1. For Bougnaoui, https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/2484_22_38073.html, explanatory note at: https://www.courdecassation.fr/jurisprudence_2/notes_explicatives_7002/relative_arret_37989.html.
- 10.
Although not quite the only case: S Hennette-Vauchez (2019).
- 11.
“J’accuse! Lettre au Président de la République,” L’Aurore, 13 January.
- 12.
“I find it hard to understand how the hands of whoever drafted and signed the judgment in Achbita did not tremble when writing these words: (…).” (See fn. 2, p. 15).
- 13.
See fn.2, p. 8.
- 14.
Typically, in the well-known rulings dated 26 February 2013: Åkerberg (C-617/19) and Melloni (C-399/11).
- 15.
As opposed to a well-known example from Digital Rights Ireland and Seitlinger, related to two requests for preliminary rulings: one from the High Court of Ireland, and the other from the Verfassungsgerichtshof (Austrian Constitutional Court) (C-293/12).
- 16.
Reasonably leaving aside the protection of the elderly.
- 17.
Nevertheless, see paragraph 71 of Advocate General Sharpston in Bougnaoui, referring to the Opinion of Advocate General Poiares Maduro in Coleman (C-303/2006).
- 18.
“Article 2. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 (...): (a) direct discrimination shall be taken to occur where one person is treated less favorably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons (…).”
- 19.
Religion being the first consideration mentioned in the Directive.
- 20.
Article 4. (...) Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
- 21.
“(…) unless: b) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (...).” (Art. 2 (2)).
- 22.
The question was worded as follows: “Must Article 4(1) of Directive 2000/78 be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?”
- 23.
The CJEU had previously declared that it lacked sufficient data to determine that there was a prior rule or internal practice that could amount to indirect discrimination, which should in any case be determined by domestic courts.
- 24.
The question simply reads: “Should Article 2(2)(a) of Directive 2000/78 be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?”
- 25.
Paragraphs 30 to 32 of the judgment.
- 26.
It is worth highlighting here how simple and short the rulings are in contrast with the complexity and sophistication of the respective Opinions issued by the advocates general.
- 27.
Paragraphs 33 to 44.
- 28.
“Samira Achbita, you are my sister” (See fn. 2, p. 15).
- 29.
Paragraph 34.
- 30.
Also, according to Advocate General Sharpston in Bougnaoui, wearing the hijab is part of the external manifestation of religion (paragraph 87).
- 31.
Eweida and Others v. The United Kingdom, Judgment of 15 January 2013.
- 32.
See an expressive view in paragraph 114 of the Opinion of Advocate General Kokott.
- 33.
See fn. 2, p. 6.
- 34.
Ibid., p. 8.
- 35.
“…compromising or limiting the right of communicating one’s faith to others through the wearing of some sign is not quite as serious as preventing that same person from actually practicing and living that faith or forcing them to violate it” (See fn. 2, p.6), but it would be necessary to check with the competent religious authorities every time.
- 36.
See fn. 36.
- 37.
See fn. 31.
- 38.
“Whoever acknowledges me before others, I will also acknowledge before my Father in heaven” (Matthew, 10:32).
- 39.
“In the present case, it is not inconceivable that the referring court might conclude that the internal rule at issue in the main proceedings introduces a difference of treatment that is indirectly based on religion or belief, for the purposes of Article 2(2)(b) of Directive 2000/78, if it is established—which it is for the referring court to ascertain—that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage” (paragraph 34).
- 40.
“An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers” (paragraph 38).
- 41.
The Directive only mentions proportionality regarding direct discrimination (Article 4). Obviously this does not allow potential indirect discriminations to bypass a proportionality assessment.
- 42.
Paragraph 43.
- 43.
Paragraph 99.
- 44.
Paragraph 114.
- 45.
The size and conspicuousness of the religious symbol; the nature of the employee’s activity; the context in which she has to perform that activity, and the national identity of the Member State concerned (paragraph 141).
- 46.
Article 23, “Equality between men and women,” paragraph 1:“Equality between men and women must be ensured in all areas, including employment, work and pay.”
- 47.
“Ich kann nicht anders” (“I have no alternative”). Allegedly in the Diet of Worms in 1521.
- 48.
Keep in mind that Advocate General Kokott began her Opinion by stating that both in Achbita and in the parallel Bougnaoui case,“the Court is expected to give a landmark decision the impact of which could extend beyond the specific context of the main proceedings and be ground-breaking in the world of work throughout the European Union, at least so far as the private sector is concerned” (paragraph 6).
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Villalón, P.C. (2021). Still on Hijab Bans in the Workplace. À propos de, Joseph H. H. Weiler, ‘Je suis Achbita!’. In: Izquierdo-Sans, C., Martínez-Capdevila, C., Nogueira-Guastavino, M. (eds) Fundamental Rights Challenges. Springer, Cham. https://doi.org/10.1007/978-3-030-72798-7_7
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