Article 10 - Freedom of thought, conscience and religion
Article 14 - Right to education
Article 16 - Freedom to conduct a business
Article 21 - Non-discrimination
Key facts of the case:
Requests for a preliminary ruling from the Arbeitsgericht Hamburg and Bundesarbeitsgericht. Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Internal rule of a private undertaking prohibiting the wearing of any visible political, philosophical or religious sign or the wearing of conspicuous, large-sized political, philosophical or religious signs in the workplace – Direct or indirect discrimination – Proportionality – Balancing the freedom of religion and other fundamental rights – Legitimacy of the policy of neutrality adopted by the employer – Need to establish economic loss suffered by the employer.
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Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1) These requests for a preliminary ruling concern the interpretation of Article 2(1) and (2)(a) and (b), Article 4(1) and Article 8(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and Articles 10 and 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
31) WABE contends that the referring court should dismiss that action. In support of that contention, it submits, inter alia, that the internal rule prohibiting the visible wearing of political, philosophical or religious signs complies with the first sentence of Paragraph 106 of the GewO, read in conjunction with Paragraph 7(1) to (3) of the AGG, and that those national provisions should be interpreted in accordance with EU law. According to WABE, it is apparent from the judgment of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), that a private employer is authorised to implement a policy of neutrality within the undertaking provided that it is pursued consistently and systematically and that it is restricted to employees who are in contact with customers. There is no indirect discrimination if the rule concerned is objectively justified by a legitimate aim, such as the employer’s desire to pursue a policy of neutrality in its relations with customers, and the means of achieving that aim are appropriate and necessary. That is the case here. Moreover, IX cannot be transferred to a post which does not involve contact with the children and their parents since such a post does not correspond to her abilities and qualifications. WABE argues that, by its judgment of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), the Court definitively ruled on the question of the balancing of fundamental rights in the light of the Charter in the case of a requirement of neutrality imposed by the employer. Since Paragraph 3(2) of the AGG is intended to transpose EU law, the German courts cannot give a different weighting to religious freedom, such as that adopted by the Bundesverfassungsgericht (Federal Constitutional Court), without contravening the primacy of EU law and the principle of interpretation in accordance with EU law. Moreover, according to WABE, even if it were necessary to establish the existence of a specific risk or specific economic harm in order to restrict the freedom of religion, that requirement would also be met in the present case, since it is apparent from the posts which the applicant in the main proceedings displayed on her personal page of a social network that she wished, by her conduct, to influence third parties in a targeted and deliberate manner.
34)
In those circumstances, the Arbeitsgericht Hamburg (Labour Court, Hamburg, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Does a unilateral instruction from the employer prohibiting the wearing of any visible sign of political, ideological or religious beliefs constitute direct discrimination on the grounds of religion, within the meaning of Article 2(1) and 2(2)(a) of … Directive [2000/78], against employees who, due to religious covering requirements, follow certain clothing rules?
2. Does a unilateral instruction from the employer prohibiting the wearing of any visible sign of political, ideological or religious beliefs constitute indirect discrimination on the grounds of religion and/or gender, within the meaning of Article 2(1) and Article 2(2)(b) of Directive [2000/78], against a female employee who, due to her Muslim faith, wears a headscarf?
In particular:
(a) Can [indirect] discrimination on the grounds of religion and/or gender be justified under Directive [2000/78] by the employer’s subjective wish to pursue a policy of political, ideological and religious neutrality even where the employer thereby seeks to meet the subjective wishes of his customers?
(b) Do Directive [2000/78] and/or the fundamental right of freedom to conduct a business under Article 16 of the [Charter] in view of Article 8(1) of Directive [2000/78] preclude a national regulation according to which, in order to protect the fundamental right of freedom of religion, a ban on religious clothing may be justified not simply on the basis of an abstract capacity to endanger the neutrality of the employer, but only on the basis of a sufficiently specific risk, in particular of a specifically threatened economic disadvantage for the employer or an affected third party?’
37) MJ’s action before those courts was upheld and MH subsequently brought an appeal on a point of law before the Bundesarbeitsgericht (Federal Labour Court, Germany), in which it also argued that it is apparent from the judgment of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), that it is not necessary to establish specific economic harm or a reduction in customers in order for a prohibition on manifesting beliefs to be validly applied. Thus, the Court attributed greater weight to the freedom to conduct a business protected by Article 16 of the Charter than to freedom of religion. A different outcome cannot be derived from the fundamental rights protected by national law.
40) If it were to be concluded that the latter, limited prohibition is sufficient, the question would arise whether the prohibition at issue in the main proceedings, which appears necessary, is appropriate, within the meaning of Article 2(2)(b)(i) of Directive 2000/78. The referring court asks in that respect whether it is necessary, in examining the appropriate nature of that prohibition, to weigh the rights laid down in Article 16 of the Charter against those laid down in Article 10 of the Charter or whether that weighing should occur only when applying the general rule in the individual case concerned, for example when an instruction is given to an employee or when an employee is dismissed. If it were to be concluded that the conflicting rights deriving from the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) cannot be taken into consideration in examining the appropriateness of the prohibition at issue in the main proceedings in the strict sense, the question would then arise whether a right, protected by a national provision of constitutional status, in particular the freedom of religion and belief protected by Paragraph 4(1) and (2) of the GG, may be regarded as a more favourable provision, within the meaning of Article 8(1) of Directive 2000/78.
41) Lastly, it is also necessary to examine whether EU law – in this case Article 16 of the Charter – precludes the possibility of taking into account fundamental rights protected by national law when examining the validity of an instruction given by an employer. The question arises, inter alia, whether an individual, such as an employer, may rely on Article 16 of the Charter in a dispute exclusively between private persons.
42) In those circumstances, the Bundesarbeitsgericht (Federal Labour Court, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Can established indirect unequal treatment on grounds of religion within the meaning of Article 2(2)(b) of Directive [2000/78], resulting from an internal rule of a private undertaking, be justifiable only if, according to that rule, it is prohibited to wear any visible sign of religious, political or other philosophical beliefs, and not only such signs as are prominent and large-sized?
2. If Question 1 is answered in the negative:
(a) Is Article 2(2)(b) of Directive [2000/78] to be interpreted as meaning that the rights derived from Article 10 of the [Charter] and from Article 9 [ECHR] may be taken into account in the examination of whether established indirect unequal treatment on grounds of religion is unjustifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large-sized signs of religious, political or other philosophical beliefs?
(b) Is Article 2(2)(b) of Directive [2000/78] to be interpreted as meaning that national rules of constitutional status which protect freedom of religion may be taken into account as more favourable provisions within the meaning of Article 8(1) of Directive [2000/78] in the examination of whether established indirect unequal treatment on grounds of religion is justifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large-sized signs of religious, political or other philosophical beliefs?
3. If Questions 2(a) and 2(b) are answered in the negative:
In the examination of an instruction based on an internal rule of a private undertaking which prohibits the wearing of prominent, large-sized signs of religious, political or other philosophical beliefs, must national rules of constitutional status which protect freedom of religion be set aside because of primary EU law, even where primary EU law, such as, for example, Article 16 of the [Charter], recognises national laws and practices?’
45) As regards the concept of ‘religion’, within the meaning of Article 1 of Directive 2000/78, the Court has already held that it must be interpreted as covering 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 (judgment of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 28), which corresponds to the interpretation of that concept used in Article 10(1) of the Charter (see, to that effect, judgment of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others, C‑336/19, EU:C:2020:1031, paragraph 52).
46) The wearing of signs or clothing to manifest religion or belief is covered by the ‘freedom of thought, conscience and religion’ protected by Article 10 of the Charter. The specific content of religious precepts is based on an assessment which it is not for the Court to carry out.
47) In that regard, it should be added that Article 1 of Directive 2000/78 refers to religion and belief together, as does Article 19 TFEU, according to which the EU legislature may take appropriate action to combat discrimination based on, inter alia, ‘religion or belief’, and Article 21 of the Charter, which refers, among the various grounds of discrimination which it mentions, to ‘religion or belief’. It follows that, for the purposes of the application of Directive 2000/78, the terms ‘religion’ and ‘belief’ must be analysed as two facets of the same single ground of discrimination. As is apparent from Article 21 of the Charter, the ground of discrimination based on religion or belief is to be distinguished from the ground based on ‘political or any other opinion’ and therefore covers both religious beliefs and philosophical or spiritual beliefs.
48) It should also be added that the right to freedom of conscience and religion, enshrined in Article 10(1) of the Charter, and which forms an integral part of the relevant context in interpreting Directive 2000/78, corresponds to the right guaranteed in Article 9 of the ECHR and, under Article 52(3) of the Charter, has the same meaning and scope (judgment of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 27). In accordance with the case-law of the European Court of Human Rights (‘the ECtHR’), the right to freedom of thought, conscience and religion, enshrined in Article 9 of the ECHR, ‘represents one of the foundations of a “democratic society” within the meaning of [that] Convention’ and constitutes, ‘in its religious dimension, … one of the most vital elements that go to make up the identity of believers and their conception of life’ and ‘a precious asset for atheists, agnostics, sceptics and the unconcerned’, contributing to ‘the pluralism indissociable from a democratic society, which has been dearly won over the centuries’ (ECtHR, 15 February 2001, Dahlab v. Switzerland, CE:ECHR:2001:0215DEC004239398).
62) Directive 2000/78 is a specific expression, within the field that it covers, of the general principle of non-discrimination now enshrined in Article 21 of the Charter (judgment of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie, C‑16/19, EU:C:2021:64, paragraph 33). Recital 4 of that directive notes that the right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by several international agreements, and it is apparent from recitals 11 and 12 of that directive that the EU legislature intended to consider, first, that discrimination based on, inter alia, religion or belief may undermine the achievement of the objectives of the TFEU, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity and the objective of developing the European Union as an area of freedom, security and justice, and, secondly, any direct or indirect discrimination based on religion or belief as regards the areas covered by that directive should be prohibited throughout the European Union.
63) In that regard, as regards the condition relating to the existence of a legitimate aim, an employer’s desire to display, in relations with both public- and private-sector customers, a policy of political, philosophical or religious neutrality may be regarded as legitimate. 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, in particular 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 (see, to that effect, judgment of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraphs 37 and 38).
65) In those circumstances, in order to establish the existence of objective justification and, therefore, of a genuine need on the part of the employer, account may be taken, in the first place, of the rights and legitimate wishes of customers or users. That is the case, for example, of parents’ right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs recognised in Article 14 of the Charter or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children with the aim, inter alia, of ‘guaranteeing the free and personal development of children as regards religion, belief and policy’, as mentioned in the staff instructions adopted by WABE.
67) In the second place, in assessing whether there is a genuine need on the part of the employer within the meaning of paragraph 64 above, particular relevance should be attached to the fact that the employer has adduced evidence that, in the absence of such a policy of political, philosophical and religious neutrality, its freedom to conduct a business, recognised in Article 16 of the Charter, would be undermined in that, given the nature of its activities or the context in which they are carried out, it would suffer adverse consequences.
69) That latter requirement entails, in particular, that it must be ascertained whether, in the case of a restriction of the freedom of thought, conscience and religion, guaranteed in Article 10(1) of the Charter, such as that entailed by prohibiting a worker from observing, at his or her workplace, a precept requiring him or her to bear a visible sign of his or her religious beliefs, that restriction appears strictly necessary in view of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.
80) That question arises from the doubts, also raised by the Bundesarbeitsgericht (Federal Labour Court) in Case C‑341/19, as to whether, in examining the appropriateness of an internal rule of an undertaking such as that at issue in the disputes in the main proceedings, it is necessary to weigh up the rights and freedoms at issue, in particular Articles 14 and 16 of the Charter, on the one hand, and Article 10 of the Charter, on the other, or whether that weighing should occur only when applying the internal rule in the individual case concerned, for example when an instruction is given to an employee or when an employee is dismissed. If it were to be concluded that the rights at issue arising from the Charter cannot be taken into consideration in the context of that examination, the question would then arise as to whether a national constitutional provision, such as Article 4(1) and (2) of the GG, protecting freedom of religion and belief, may be regarded as more favourable provisions within the meaning of Article 8(1) of Directive 2000/78.
81) As regards, in the first place, the question whether it is necessary, in examining the appropriateness, for the purposes of Article 2(2)(b)(i) of Directive 2000/78, of the restriction resulting from the measure adopted in order to ensure the application of a policy of political, philosophical and religious neutrality, to take into account the various rights and freedoms in question, it must first be recalled that, as the Court noted when it interpreted the concept of ‘religion’, within the meaning of Article 1 of Directive 2000/78, the EU legislature referred, in recital 1 of that directive, to fundamental rights as guaranteed by the ECHR, which provides, in Article 9, that everyone has the right to freedom of thought, conscience and religion, a right which includes, in particular, freedom, either alone or in community with others and in public or private, to manifest his or her religion or belief, in worship, teaching, practice and observance. In addition, in the same recital, the EU legislature also referred to the constitutional traditions common to the Member States, as general principles of EU law. Among the rights resulting from those common traditions, which have been reaffirmed in the Charter, is the right to freedom of thought, conscience and religion enshrined in Article 10(1) of the Charter. In accordance with that provision, that 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. As is apparent from the explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the right guaranteed in Article 10(1) of the Charter corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope (judgment of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraphs 26 and 27).
83) Next, the Court has already held that, when examining whether a prohibition similar to that at issue in the main proceedings is necessary, it is for the national courts, having regard to all the material in the file in question, to take into account the interests involved in the case and to limit the restrictions ‘on the freedoms concerned to what is strictly necessary’ (judgment of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 43). Since the case which gave rise to that judgment concerned only the freedom to conduct a business, recognised in Article 16 of the Charter, it must be concluded that the other freedom to which the Court referred to in that judgment was the freedom of thought, conscience and religion, referred to in paragraph 39 of that judgment.
84) It must therefore be observed that the interpretation of Directive 2000/78 thus adopted is in accordance with the case-law of the Court and that it ensures that, when several fundamental rights and principles enshrined in the Treaties are at issue, such as, in the present case, the principle of non-discrimination enshrined in Article 21 of the Charter and the right to freedom of thought, conscience and religion guaranteed in Article 10 of the Charter, on the one hand, and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions recognised in Article 14(3) of the Charter and the freedom to conduct a business recognised in Article 16 of the Charter, on the other hand, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them (see, to that effect, judgment of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others, C‑336/19, EU:C:2020:1031, paragraph 65 and the case-law cited).
