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CJEU Joined Cases C-804/18 and C-341/19 / Opinion

IX v WABE and MH Müller Handels GmbH v MJ

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
25/02/2021
ECLI:
ECLI:EU:C:2021:144

Key fact of the case:

Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 2(2) – Discrimination on the grounds of religion or belief – Internal rules of undertakings prohibiting workers from wearing visible, conspicuous or large-scale political, philosophical or religious signs in the workplace – Direct discrimination – None – Indirect discrimination – Female worker prohibited from wearing an Islamic headscarf – Customers’ wishes that the undertaking pursue a policy of neutrality – Entitlement to wear small, visible signs – Article 8(1) – National provisions more favourable to the protection of the principle of equal treatment – Freedom of religion under Article 10 of the Charter of Fundamental Rights of the European Union – National constitutional provisions protecting the freedom of religion

Outcome of the case:

In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Arbeitsgericht Hamburg (Labour Court, Hamburg, Germany) and the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:

  1. 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 is to be interpreted as meaning that the prohibition on wearing any visible sign of political, philosophical or religious beliefs in the workplace, which results from an internal rule of a private undertaking, does not constitute direct discrimination on the grounds of religion or belief, within the meaning of that provision, in respect of employees who, due to religious covering requirements, follow certain clothing rules.
  2. Article 2(2)(b) of Directive 2000/78 is to be interpreted as meaning that a difference of treatment indirectly based on religion or belief, for the purposes of that provision, can be justified by the employer’s intention to pursue a policy of political, philosophical and religious neutrality in the workplace in order to take account of the wishes of its customers.
  3. Article 2(2)(b) of Directive 2000/78 is to be interpreted as meaning that an internal rule of a private undertaking which prohibits, in the context of a policy of neutrality, only the wearing of conspicuous, large-scale signs of political, philosophical or religious beliefs in the workplace can be justified for the purposes of that provision. Such a prohibition must be implemented in a consistent and systematic manner, which is for the referring court to ascertain.
  4. Article 2(2)(b) of Directive 2000/78 is to be interpreted as meaning that national constitutional provisions protecting the freedom of religion may not be taken into account as more favourable provisions within the meaning of Article 8(1) of that directive in the examination of whether indirect unequal treatment on the grounds of religion or beliefs is justifiable.
  5. Article 2(2)(b) of Directive 2000/78 is to be interpreted as meaning that the rights laid down in Article 10 of the Charter of the Fundamental Rights of the European Union and in Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, may not be taken into account in the examination of whether indirect unequal treatment on the grounds of religion or belief and resulting from an internal rule of a private undertaking is appropriate and necessary.
  6. Directive 2000/78 is to be interpreted as not precluding a national court from applying national constitutional provisions that protect the freedom of religion in the examination of an instruction based on an internal rule of a private undertaking which prohibits the wearing of signs of political, philosophical or religious beliefs in the workplace, as long as those provisions do not undermine the principle of non-discrimination laid down in that Directive, which is for the referring court to ascertain.