Religion and equality in EU law

https://doi.org/10.63189/WNHY4319

1. Introduction – Why is the relation between religion and equality important?

Freedom of religion is an important human right. It is enshrined in many international legal documents, especially the European Convention on Human Rights (Article 9). The European Court of Human Rights (ECtHR) found, in its first ever judgement on freedom of religion (Kokkinakis)^[1] that freedom of thought, conscience and religion is “one of the foundations of a democratic society. This freedom, in its religious dimension, is one of the most important elements that create the identity of believers and their conception of life, but it is also a precious tool of atheists, agnostics, sceptics and those who do not have any relation towards faith”. This stance of the ECtHR was most vividly stressed in the 2011 Bayatyan judgement in which the ECtHR reiterated its doctrine under which the state must obtain the “role of a neutral and impartial organiser of expression of various religions, beliefs, and convictions, thereby contributing to public order, religious harmony and tolerance in a democratic society”. It must be stressed out that this fundamental human right has its “mirror image” right that is not formally articulated anywhere: the right to be free from religion. It is truly difficult to think of any other “freedom-right” that has an “anti-right” of this nature associated with it in this fashion.^[2] From this stems the conclusion that that we as people are free to choose whether we want to belong to a religion (be adepts of religious beliefs) or not. One’s choice should not have negative consequences.^[3]

The right to freedom of religion is also enshrined in the Charter of Fundamental Rights of the European Union (Article 10). Therefore, it is a part of EU law. The fact that freedom of religion is not, stricto sensu, in the Treaties does not mean that this right is not protected. Namely, the text of Article 17(1) TFEU only states that “the Union respects and does not prejudice the status under national law of churches and religious associations and communities in the Member States”. On the one hand, some argue that Article 2 TEU sets an objective to the Union of combating religious discrimination^[4]. On the other hand, others disagree with this view^[5]. This is important because the EU only has competence to act in order to achieve the objectives set in the Treaties. However, the freedom of religion is protected under EU law as the Charter is a legally binding part of it.

This is important because, according to the previous principle, there must not be any discrimination on the basis of religious (non-)affiliation. This is also prescribed by Article 21 of the Charter which prohibits, inter alia, discrimination on the basis of religion or beliefs. The aim of this article is to explore whether EU law in reality ensures non-discrimination on the basis of religion or, on the contrary, religious affiliation is sometimes the basis for (legal) discrimination of believers.

2. Questions posed

In literature, certain questions were raised regarding the status of religion and subsequent discrimination. For example, Van den Brink set a series of questions: When can religious employers discriminate against non-adherents? Can the Church discriminate against non-Christians in the appointment of clergy? Can an Islamic school dismiss teachers who do not observe the core principles of the Islamic faith? Can a Christian hospital refuse to employ qualified doctors who are not members of the Church?^[6] He also stated the obvious: Member States think differently about such questions.^[7] Naturally, there can be opposite questions such as: When can employers discriminate against believers? When can the authorities demand that religious affiliation remains non-disclosed to others? What is the scope of impact of EU law in religious matters? The obvious answer is that religious matters are subjected to EU law if EU law applies,^[8] but one must first answer the pre-question – when does EU law apply? Gill-Pedro answers that the case law of the Court of the EU sets the answer – EU law  applies to national measures where those national measures impact on the achievement of EU law objectives, in particular the functioning of the internal market and of the area of freedom, security and justice.^[9] There is also the question of religious minorities with regard to whom the Court stated that the EU’s duty to respect and not prejudice the status under the national law of churches and religious associations and communities in the Member States does not exempt any religious matter from the operation of EU law, including non-discrimination law.^[10]

3. The case law of CJEU

CJEU ruled on several cases which can be used to show its position towards religious freedom and the link between religious affiliation and discrimination. One should also mention the Council Directive 2000/78/EC of 27 November 2000^[11] establishing a general framework for equal treatment in employment and occupation, especially its Article 2 which guarantees the principle of equal treatment (prohibition of direct and indirect discrimination). Namely, in cases against employers who banned wearing visible signs of their political, philosophical or religious beliefs in the workplace, CJEU created its interpretation of protection of freedom of religion in the context of employees’ rights.

One of the most known cases was Achbita.^[12] It was the first full judgement of CJEU on discrimination based on religion and belief under Directive 200/78. In this case, the issue was the ban to wear a headscarf in the workplace of an employee. Namely, the employer informed the employee that wearing of a headscarf would not be tolerated because visible wearing of political, philosophical or religious signs was contrary to his position of neutrality. However, this policy was “informal”. The employee disregarded this informal ban, but the employer amended the workplace regulations according to which “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. The employee continued to wear the headscarf and was dismissed. CJEU stated that 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. It must be held that the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner. Therefore, Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private enterprise prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive. By contrast, such an internal rule of a private enterprise may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In the case OP v Commune d’Ans,^[13] the same question was posed, but in relation to a public sector workplace. It should be highlighted that CJEU stated that the concept of ‘religion’ in Article 1 of Directive 2000/78 covers both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public. The Court reiterated that an internal rule decreed by an employer which prohibits the wearing in the workplace of any visible sign of beliefs – philosophical or religious in particular – does not constitute such direct discrimination since it covers any manifestation of such beliefs without distinction and treats all workers of the enterprise in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.^[14] However, CJEU needed to answer one more question, as this situation was linked with a workplace in the public sector. The question was whether Article 2(2)(a) and (b) of Directive 2000/78 must be interpreted as permitting a public authority to organise an entirely neutral administrative environment by prohibiting all the members of its staff from visibly wearing signs which reveal, in particular, philosophical or religious beliefs, whether or not those staff members are in direct contact with the public, where that prohibition appears mostly to affect women and is therefore liable to constitute indirect discrimination on the grounds of sex. And CJEU ruled that Article 2(2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that an internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context, and taking into account the various rights and interests at stake.

Also, the cases concerning ritual slaughter of animals should be mentioned. The first CJEU preliminary ruling on ritual slaughter concerned an implementation of an EU regulation which inhibited the availability of ritually slaughtered meat during the Muslim Feast of Sacrifice.^[15] In the case Centraal Israëlitisch Consistorie van België and Others,^[16] CJEU ruled that the Belgian decree (ordering to first stun the animal) leaves the core of the exemption intact as the death of the animal would still result from bleeding (as required under religious rites) rather than from the prior stunning. In this manner, the religious exemption provided for in the Regulation is not erased, but only narrowed down. This judgement met criticism, and it is said that, whilst the court adopts a measured and evidence-based approach, its unilateral interpretation of religious requirements betrays the method of avoidance under the democratic framework, as the state is led to interfere unilaterally with matters of religious doctrines. It is to be feared that religious communities might find this interpretation of their own religious requirements by secular authorities patronising.^[17]

4. Conclusion

The main conclusion that must be derived from this paper is that the status of churches and other religious associations is indeed within the competence of the Member States, but it should not be controversial that this competence must be exercised in accordance with EU non-discrimination.^[18] There can be cases in which religious freedom is curtailed, which is especially true with regard to employment. This is why employers (private or public) have the right to limit the right to profess one’s religious affiliation with the goal to achieve a neutral environment. When also taking into account the case law regarding ritual slaughter of animals, it could be said that the CJEU confirms that the importance the EU attaches to the protection of the fundamental rights of individuals does not allow disproportionate interferences inspired by autonomy and integrity concerns of (religious) groups/communities.^[19]

^[1] Kokkinakis v. Greece, 1993.

^[2] Evans, 2014, p. 532.

^[3] Staničić, 2019, p. 191.

^[4] Ahlm, 2020.

^[5] Gill-Pedro, 2021, p. 133.

^[6] Van der Brink, 2022, p. 89.

^[7] Van der Brink, 2022, p. 89.

^[8] Ahlm, 2020.

^[9] Gill-Pedro, 2021, p. 133.

^[10] Henrard, 2021, p. 17.

^[11] OJ 2000 L 303.

^[12] Case C-157/15, 14 March 2017. See, similar, Bougnaoui, case C-188/15, 14 March 2017.

^[13] Case C‑148/22, 24 February 2022.

^[14] See also: WABE and MH Müller Handel, C‑804/18 and C‑341/19, 15 July 2021.

^[15] Liga van Moskeeën, Case C-426/16, 29 May 2018, OABA, Case C-497/17, 20 September 2018.

^[16] Case C-336/19, 17 December 2020.

^[17] Hunter-Henin, 2021, p. 367.

^[18] Van den Brink, 2022, p. 111.

^[19] Henrard, 2021, p. 17.

References

Ahlm, Emma, EU Law and Religion: A Study of How the Court of Justice has Adjudicated on Religious Matters in Union Law, Uppsala: Juridiska institutionen, Uppsala universite, 2020.

Gill-Pedro, Eduardo ‘Book Review, Emma Ahlm, EU Law and Religion: a study of how the Court of Justice has adjudicated on religious matters in Union Law, Uppsala University 2020, 343 pages, ISBN 978-91-506-2847-0, Nordic Journal of European Law 2021(1), pp. 131-135.

Henrard, Kristin ‘EULaw’s Half-Hearted Protection of Religious Minorities Minority Specific Rights and Freedom of Religion for All’, Religions, 12 (2021) 10, pp. 1-23.

Hunter-Henin, Myriam ‘Religious freedom and theright against religious discrimination: Democracy as the missing link’ International Journal of Discrimination and the Law, 21 (2021) 4, pp. 357-373.

Staničić, Frane ‘Does Religious Freedom Warrant Protection as a Fundamental Human Right? ’ Društvena istraživanja 28 (2019) 2, pp. 189-206.

Van den Brink, Martijn ‘When can religious employers discriminate? The scope of the religious ethos exemption in EU law’, European Law Open (2022), 1, pp. 89–112 doi:10.1017/elo.2022.1