CJEU Case C-188/15 / Opinion
Key facts of the case:

Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment — Discrimination based on religion or belief — Genuine and determining occupational requirement — Meaning — Customer’s wish not to have services provided by a worker wearing an Islamic headscarf.

Outcome of the case:

I therefore propose that, in answer to the question referred, the Court should reply to the Cour de Cassation (Court of Cassation, France) as follows:

A rule laid down in the workplace regulations of an undertaking which prohibits employees of the undertaking from wearing religious signs or apparel when in contact with customers of the business involves direct discrimination on grounds of religion or belief, to which neither Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation nor any of the other derogations from the prohibition of direct discrimination on grounds of religion or belief which that directive lays down applies. That is a fortiori the case when the rule in question applies to the wearing of the Islamic headscarf alone.

Where there is indirect discrimination on grounds of religion or belief, Article 2(2)(b)(i) of Directive 2000/78 should be construed so as to recognise that the interests of the employer’s business will constitute a legitimate aim for the purposes of that provision. Such discrimination is nevertheless justified only if it is proportionate to that aim.
Paragraphs referring to EU Charter

7) Article 10 of the Charter of Fundamental Rights of the European Union (‘the Charter’) ( 6 ) is entitled ‘Freedom of thought, conscience and religion’. Paragraph 1 reads as follows:

‘Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.’

8) Article 16 of the Charter, entitled ‘Freedom to conduct a business’ provides:

‘The freedom to conduct a business in accordance with Union law and national laws and practices is recognised.’

9) Article 21 of the Charter is entitled ‘Non-discrimination’. Paragraph 1 states:

‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

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60) It is indeed true that the primary approach of the Strasbourg Court in applying the ECHR has been to adopt what I might call the restrictions-based approach by reference to Article 9. As I mentioned in point 56 above, the role played by Article 14 has been an ancillary one. Since the Charter has binding effect in EU law following the entry into force of the Treaty of Lisbon, it might be anticipated that this Court would now adopt the same approach in applying the equivalent provisions under that document, that is to say, Articles 10 and 21.

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64) That difference in approach seems to me to be a wholly legitimate one: Article 52(3) of the Charter specifically provides that EU law may provide more extensive protection than that given by the ECHR.

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87) It is true that the directive makes no express reference to the question of manifestation. However, a perusal of Article 9 of the ECHR and Article 10 of the Charter shows that, in each case, the right to manifest one’s religion or belief is to be understood as an intrinsic part of the freedom they enshrine. Thus, each of those provisions, having set out the right to freedom of religion, goes on to state that that freedom ‘includes’ the right to manifest it. I therefore draw nothing from the fact that the directive is silent on the point. ( 80 ) To give only one example: were the position to be otherwise, a Sikh male, who is required by his religion to wear a turban, would have the benefit of no rights as regards his particular manifestation of his beliefs and thus risk being deprived of the very protection the directive seeks to provide.

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100) But I cannot see any basis on which the grounds which Micropole appears to advance in the dismissal letter for dismissing Ms Bougnaoui, that is to say, the commercial interest of its business in its relations with its customers, could justify the application of the Article 4(1) derogation. As the Commission rightly observes, first, the Court has held that direct discrimination (which I consider this to have been) cannot be justified on the ground of the financial loss that might be caused to the employer. ( 94 ) Second, whilst the freedom to conduct a business is one of the general principles of EU law ( 95 ) and is now enshrined in Article 16 of the Charter, the Court has held that that freedom ‘is not an absolute principle but must be viewed in relation to its function in society … Accordingly, limitations may be imposed on the exercise of that freedom provided, in accordance with Article 52(1) of the Charter, that they are prescribed by law and that, in accordance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others’. ( 96 ) In that regard, the Court has found, in relation to safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter, that the EU legislature was entitled to adopt rules limiting the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over the contractual freedom implicit in the freedom to conduct a business. ( 97 )