The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

Darryl HutcheonDarryl Hutcheon

Conflicts between the religious practices of workers and the ‘neutrality’ policies of their employers have repeatedly come before the European Court of Human Rights (“ECtHR”) and domestic courts in the UK. They now arise for the first time before the Court of Justice of the European Union (“CJEU”) in two cases: C-188/15 Bougnaoui v Micropole SA and C-157/15 Achbita v G4S Secure Solutions NV80. This note analyses the opinion of Advocate General Sharpston in Bougnaoui handed down on 13 July 2016; contrasts that opinion with the earlier opinion[1] of AG Kokott in Achbita; and considers what these decisions tell us about the future trajectory of EU (and domestic) discrimination law.

Facts in both cases

Ms Bougnaoui and Ms Achbita are Muslim women who were employed in customer-facing roles by private sector employers. Both wore headscarves but wore nothing which covered their faces. Ms Bougnaoui was told that her headscarf had ‘embarrassed’ the employees of a company client she had visited; she was dismissed when she refused to agree not to wear a headscarf on future visits to that client. Ms Achbita had worked for her employer for some time before she started to wear a headscarf; she was then dismissed on the basis that her new practice breached a strict company ‘neutrality’ policy.

AG Sharpston’s opinion in Bougnaoui

Several aspects of AG Sharpston’s opinion are worthy of comment.

First, she rejected the suggestion that EU law on religious discrimination ought precisely to reflect the ECtHR’s article 9 (freedom of religion) jurisprudence, in effect by allowing a human rights justification/proportionality defence to direct discrimination claims ([58] – [67]). AG Sharpston maintained that the Framework Directive 2000/78 (“the Directive”) set down a clear distinction: indirect discrimination can be defended by reference to proportionality, but direct discrimination admits of (much) narrower exceptions.[2] Her position stands in contrast to the view expressed by some senior judges in the UK that the lack of a general justification defence to direct discrimination is a “defect” in the law: see e.g. R (E) v Governing Body of JFS [2009] UKSC 15 at [9].

Second, AG Sharpston concluded that the decision to dismiss Ms Bougnaoui constituted direct, and not just indirect, discrimination ([83] – [89]). “Religion” for these purposes included manifestations of religion like wearing a headscarf. The judgment does not directly engage with the question of how courts should identify whether a particular act constitutes a “manifestation of religion”, but the case-law of the ECtHR on that subject will doubtlessly be persuasive. The recognition that religion is not just a status but an identity partly constituted by acts is intuitively attractive and compares favourably to the sometimes strained efforts of British judges to dissociate “religion” from acts which are obviously part and parcel of a person’s religion.[3] It leaves open the interesting question of whether EU law will permit employers to sanction employees whose religiously-motivated behaviour impacts negatively on other employees or on their work (as in the well-known “evangelising at work” cases). English courts have addressed this situation by distinguishing action taken because of religion/religious manifestations and action taken because of “the way in which (a worker) manifested or shared it”.[4] AG Sharpston’s opinion can probably be reconciled with that approach.

Third, AG Sharpston concluded that there was no basis to conclude that article 4(1) of the Directive (the genuine occupational requirement defence to direct discrimination claims) applied on the facts ([90] – [102]). It was decisive that Ms Bougnaoui remained perfectly able to perform her professional duties. Notably, AG Sharpston found it “hard to envisage” any application of the article 4(1) defence in religious discrimination claims, other than on health and safety grounds ([99]). She also gave a narrow reading to article 2(5) of the Directive (pursuant to which the Directive is subject to national measures which are necessary in pursuit of various public policy objectives), suggesting it could not be relied on by employers citing business reasons ([104] – [105]).

Fourth, AG Sharpston remarked on the application of the principles of indirect discrimination (in case the Court concluded that her characterisation of the claim as direct discrimination was mistaken). While an employer’s business reasons could constitute a legitimate aim, the question of proportionality was more complex ([134]). These kinds of issues could ordinarily be resolved by discussion between employer and employee; but ultimately, where an employer stood to lose out because of the prejudiced attitudes of its customers, “the business interest in generating maximum profit should… give way to the right of the individual employee to manifest his religious convictions” ([133]).

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Sanneh and Others – access to welfare for Zambrano carers


Dr Iyiola Solanke

If citizenship is the fundamental status for EU citizens, what is its substance for child citizens who are too young to enjoy the rights set out in Articles 21-23 TEU to work, travel, vote or petition the EP? What does the principle in EU law of ‘genuine enjoyment of the substance of citizenship’ mean if you are a child? And what are the implications for your parent or parents? These are central questions for a specific group of children now growing up across the EU – those who themselves hold EU citizenship but their parents do not. As stated in the Zambrano case,  the parents of such ‘Zambrano Minors’ derive a right of residence in the EU so that the child is not deprived of the genuine substance of Union citizenship. Although the Court of Justice has subsequently considered when this genuine enjoyment is impinged (Macarthy, Dereci, O & O) it has not made any remarks on the substance of citizenship rights for the children. It may be necessary for it to do so to prevent these children from being consigned to lives of poverty by national interpretation of its principle.

The Court of Appeal has delivered a decision concerning access by the parents of Zambrano Minors to social assistance. The parents challenged the Regulations adopted by the Coalition Government to incorporate the Zambrano principle into national law. Three Regulations were designed to specifically exclude these parents from rights to social assistance that they would otherwise have as lawfully resident persons. In line with its policy to make Britain hostile to immigrants, the Government decided that these parents should be in the same position as those who do not have a lawful right to reside. The ‘Amendment Regulations’ therefore exclude all ‘Zambrano Parents – those in work and those out of work – from income-related benefits including income support, jobseekers allowance, employment allowance, pension credit, housing benefit, council tax benefit, child benefit and child tax credit. The Home Office justifies this policy as a measure to prevent and deter ‘benefit tourism’ but the parents argued that this policy was a faulty application of the Zambrano principle and discriminatory under EU law. It was argued that a proper application of the principle called for them to be in the same position as other EU nationals.

The Justices agreed with the Home Office. Drawing upon the ‘effective citizenship principle’, they held that

  1. Rights derived from an EU citizen [3] are not EU rights [95]. Thus although ‘their status is derived from the EU citizenship rights of the child as interpreted by the CJEU’ ‘EU law has no competence in the level of social assistance to be paid to the carer’. This is ‘exclusively governed by national law’ [27];
  2. ‘Zambrano carers’ derive their right to reside from Article 20 TFEU and therefore fall outside the EU cross-border social benefits legislative scheme (the ‘EU CBSBL scheme’) set out in the Citizenship Directive, the Long Term residence Directive and the Family reunion Directive [42];
  3. ‘Genuine enjoyment’ does not ‘require the State to guarantee any particular quality of life’ [32 & 171] – a ‘Zambrano carer’ is protected from compulsion to leave but this does not provide as a corollary a right for parent and child to live free from want and poverty. Zambrano carers are not to be left ‘destitute’ but member states remain free to determine access to benefits where individual situations fall outside of the scope of EU Directives [83];
  4. The proportionality principle is irrelevant because the question is beyond the scope of EU law;
  5. The EU principle of non-discrimination in EU law and the ECHR is inapplicable.

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Case C-364/13 – Patentability of embryonic stem cells and parthenotes: Inherently Uncertain?

plomerAurora Plomer

On 18th December 2014, the Grand Chamber of the CJEU revisited the scope of the moral exclusion on industrial and commercial uses of “human embryos” in Article 6(2) (c) in Directive 98/44/EC on the legal protection of biotechnological inventions (Biotech Directive) and held that the exclusion does not cover unfertilized human eggs produced by parthenogenesis (parthenotes).

The referral followed the refusal of the UKIPO to grant two national patents to International Stem Cell Corporation (‘ISCO’) [2013] EWHC 807 (Ch) on the ground that the patents fell within the definition of the term ‘human embryo’ adopted by the Grand Chamber in Brüstle (EU:C:2011:669) .     The first patent, GB0621068.6, entitled “Parthenogenetic activation of oocytes for the production of human embryonic stem cells” covered both the methods for producing pluripotent human stem cell lines from parthenogenetically-activated oocytes and the stem cell lines themselves.   The second application GB0621069.4 , entitled “Synthetic cornea from retinal stem cells” similarly included claims to methods and ‘product-by-process’. The UKIPO applied the Grand Chamber’s reasoning in Brustle that parthenotes were ‘capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so’ and therefore fell within the meaning of paragraph 36 of the judgment in Brüstle (C‑34/10, EU:C:2011:669). ISCO appealed on the grounds that, according to current scientific knowledge, mammalian parthenotes can never develop to term because, in contrast to a fertilised ovum they do not contain any paternal DNA, which is required for the development of extra-embryonic tissue (para 17). In this light, the High Court of Justice (England & Wales), Chancery Division (Patents Court), decided that the appeal “raised a question of considerable importance. What is meant by the term “human embryos” in Article 6(2)(c) of the Biotech Directive? In particular, what was meant by the CJEU in Brüstle by the expression “capable of commencing the process of development of a human being”? Does that contemplate the commencement of a process which must be capable of leading to a human being? Or does it contemplate the commencement of a process of development, even though the process cannot be completed, so that it is incapable of leading to a human being?” (At para. 3).

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‘Exposing a Grave Injustice’: Montreal Exclusivity and the Rights of Disabled Passengers: Stott v Thomas Cook [2014] UKSC 15

Dr Jeremias Prassl

On March 5, 2014 the Supreme Court handed down its judgment in Stott v Thomas Cook (previewed for the UK Supreme Court blog last autumn here). The case had attracted significant interest domestically and internationally, with the claimant supported by the Equality and Human Rights Commission, and the Secretary of State for Transport intervening on his behalf.


During a journey from Zante, Greece, to East Midlands Airport in the autumn of 2009, the claimant Mr Stott, paralysed and permanently dependent on a wheelchair, suffered from a breach of his rights under the EU’s Disability Regulation (EC) No 1107/2006, as implemented in the United Kingdom by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895). The trial judge assessed compensation at £2,500 but saw himself unable to make such an award due to the exclusive application of the Montreal Convention of 1999 (‘MC’).

Thomas Cook had relied on that international convention’s uniform rules governing liability under the contract of carriage by air, suggesting that their exclusive scope of application was a well-established principle in domestic, European Union and international law and that passengers could therefore not seek redress under domestic law. Article 29 MC stipulates that

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention […]

The United Kingdom is a contracting party to the Montreal Convention, the provisions of which have also been incorporated into EU law by Regulation (EC) 889/2002. Giving the only substantive judgment for the Court of Appeal, Maurice Kay LJ had found in favour of the airlines on the basis of Article 29 MC:

The real injuries to [the claimants’] feelings […] were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed. [54]


Judgment for the Supreme Court was given by Lord Toulson, with whom Lady Hale and Lords Neuberger, Reed and Hughes agreed. Following a summary of the facts and the relevant provisions in domestic and European Union law, his Lordship turned to a discussion of the Montreal Convention, ‘Article 29 [of which] is the rock on which Mr Stott’s claim for damages foundered’ [32].

Counsel for Mr Stott had suggested that the exclusivity question raised an important point of EU law and that the MC should not be applicable to the present case, which fell outside both its substantive and temporal scope. This could be illustrated by reference to joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc and Case C-344/04 ex parte IATA, where the CJEU had repeatedly found that the provisions of Regulation 261/2004 for compensation and assistance to passengers in case of delayed or cancelled flights were not incompatible with the MC, but rather a complementary regime of passenger protection. In rejecting this point, and the related request for a preliminary reference under Article 267 TFEU, Lord Toulson suggested that EU law as such was not engaged, or in any way manifestly clear, as the CJEU had held in ex parte IATA [at paragraph 42], that claims for damages on an individual basis would be subject to MC exclusivity, and Mr Stott’s claim was so founded.

Counsel for the Secretary of State for Transport, on the other hand, focussed on the temporal dimension of the claim, suggesting that the Regulations had been breached long before Mr and Mrs Stott’s embarkation. This argument, too, was rejected: on the facts, the actual injury had taken place only once aboard the aircraft, and also to avoid ‘encourag[ing] deft pleading in order to circumvent the purpose of the Convention’ [60]. Lord Toulson adopted the reasoning of Sotomayor CJ in King v American Airlines (see discussion below), and held that the quality of the cause of action was irrelevant: the Montreal Convention was designed comprehensively to deal with air carriers’ liability from the moment of embarkation until disembarkation. Continue reading

Destitute asylum seekers – what are member states’ obligations? Case Comment: Federaal Agentschap v Saciri (C-79/13)

Bianca Venkata


Photograph of a child asylum seeker in the Rixensart asylum seeker centre in Belgium


On 11 October 2010 the Saciri family applied for asylum in Belgium. The family consists of father Selver, mother Danijela and their three children, Danjel, Denis and Sanela.  At the same time as claiming asylum, the family applied for accommodation to the Belgian agency for asylum seeker reception (Fedasil). Fedasil informed the Saciri family that it did not have any available accommodation and referred it to obtain a financial allowance from the Belgian public centre for social welfare (OCMW). OCMW refused to provide the family with a financial allowance on the grounds that the family was not staying at Fedasil’s asylum reception centre. As a consequence, the family was denied both public asylum seeker accommodation and a financial allowance to rent in the private market.

The family commenced proceedings in the Leuven local labour court (Local Court). On 12 January 2011 the Local Court ordered Fedasil to provide the family with public accommodation. On 21 January 2011 Fedasil finally placed the family in public asylum seeker accommodation. By this time the family had spent more than three months, from the date of claiming asylum, without public accommodation or a sufficient financial allowance to rent privately. On 17 October 2011, the Local Court ordered Fedasil to pay the Saciri family EUR 2,961, representing three months of minimum guaranteed income. Fedasil appealed the judgment to the Brussels higher labour court (Higher Court).

Preliminary Reference

The Higher Labour Court referred three questions to the Court of Justice as preliminary references. The questions were:

  1. When a member state chooses to provide a financial allowance instead of accommodation is it bound by the requirements of articles 13 and 14 of Directive 2003/9/EC of 27 January 2003 (Directive)? In particular, should the financial allowance be sufficient to allow an asylum seeker to provide their own accommodation at all times?
  2. From when does the financial allowance need to be paid?
  3. Does the member state have to ensure compliance with the Directive when its asylum accommodation is full and it refers asylum seekers to other public agencies?

The Law

The Directive lays down minimum standards for the reception of asylum seekers. Recital 5 of the Directive stresses that full respect for human dignity as enshrined in the Charter of Fundamental Rights (Charter) should be ensured. Recital 7 states that the Directive should normally ensure asylum seekers a dignified standard of living and that comparable living conditions should be provided in member states.

Article 13 of the Directive requires member states to ensure:

  • that material reception conditions are available to applicants when they make their application for asylum (article 13(1)); and
  • a standard of living adequate for the health of applicants and capable of ensuring their subsistence. (article 13(2)).

Article 13(5) of the Directive states that:

“…where Member States provide material reception conditions in the form of financial allowances….the amount thereof shall be determined in accordance with the principles set out in this Article.”

Article 14 of the Directive imposes various conditions on member states when they provide accommodation to asylum seekers. This includes ensuring that minors are lodged with their parents (article 14(3)).

Belgium has transposed the Directive into its domestic law. Continue reading

Case Comment: Minister voor Immigratie en Asiel v X (C-199/12) Y (C-200/12) and Z

Anita PicAnita Davies

The case concerned the interpretation of Council Directive 2004/83/EC on minimum standards for the qualifications and status of third-country nationals or Stateless persons as refugees or as persons otherwise needing international protection and the content of the protection granted.

The applicants in this case were from Sierra Leone, Uganda and Senegal. They had all applied for asylum in the Netherlands between 2009 and 2011 and in support of their applications had claimed that they should be granted refugee status on the grounds that they had reason to fear persecution in their respective countries of origin on account of their homosexuality. In Sierra Leone homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda anyone found guilty of ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal there is a sentence of one to five years imprisonment or 100,000 – 500,000 CFA francs. The applications for asylum were refused. Following a series of appeals, the Raad van State made an application to the CJEU asking for clarification on the content of Article 9 (acts of persecution) and Article 10 (members of a particular social group) of the directive.

The questions referred were:

  1. Whether foreign nationals with a homosexual orientation form a particular ‘social group’ for the purposes of the Directive;
  2. Which homosexual activities might fall within the scope of the Directive:

(a) whether gay men could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution;

(b) whether gay men could be expected to exercise restraint, and if so, to what extent, when giving expression to that sexual orientation in their country of origin, in order to avoid persecution;

(c) whether distinctions can be made between forms of expression which relate to the core area of sexual orientation and forms of expression which do not).

3. Whether the criminalisation of homosexuality amounts to persecutory treatment per se. Continue reading

Fundamental Rights and the UK’s Balance of Competences Review

Catherine Taroni

The Ministry of Justice issued a Call for Evidence for a review on the balance of competences between the UK and EU in relation to fundamental rights on 21 October 2013, with the deadline for submitting evidence being 13 January 2014.

The Fundamental Rights Review is part of a broader series of reports on EU competence taking place between 2012-14, aiming to deepen public and Parliamentary underst­­anding of the nature of our EU membership, among other things.  The Call for Evidence seeks answers to 14 questions ranging from the quite specific “What evidence is there that the Fundamental Rights and Citizenship programme provides value for money?” to more far reaching questions covering whether there is any benefit to individuals/business/public sector/other groups within the UK from the Charter of Fundamental Rights, issues of competence creep, and potential consequences for the UK following EU accession to the ECHR.

The Call for Evidence

The approach of the Review is to give an outline of what fundamental rights are, put them in an international context and essentially summarise a brief history of fundamental rights protection in Europe – from the ECHR and from various EU mechanisms.  The Fundamental Rights Review is potentially very important – the stated aim of the Balance of Competences reviews is to audit what the EU does and how it affects the UK government and those residing within the UK more generally.  The main website can be found hereContinue reading

Case Comment: R (Chester) v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor

Anja Lansbergen

The UK Supreme Court on Wednesday delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of disenfranchisement with Convention rights, and also whether that disenfranchisement breached a right to vote granted to the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, declining either to issue a declaration of incompatibility or to recognise a right to vote conferred upon the appellants by EU law.


Prisoners in the United Kingdom are ineligible to vote by virtue of section 3(1) of the Representation of the People Act 1983 (‘RPA 1983’), which states that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. This disenfranchisement is extended to apply to European Parliamentary elections by virtue of section 8(2) of the European Parliamentary Elections Act 2002. Continue reading

Case Comment: AG’s Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (C‑199/12, C‑200/12 and C‑201/12)

Karon Monaghan QC

On 11th July 2013, Advocate General Sharpston delivered her Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (joined Cases C‑199/12, C‑200/12 and C‑201/12). The case concerned three nationals, X, Y and Z, of respectively Sierra Leone, Uganda and Senegal, all of whom are gay. They sought refugee status in the Netherlands, claiming a well- founded fear of persecution in their home countries based on their sexual orientation, relying, inter alia, on the fact that homosexuality is criminalized in Sierra Leone, Uganda and Senegal.

Their claims to refugee status fell to be considered under the EU Qualifications Directive 2004/83/EU (‘on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’). Replicating provision made under the Geneva Convention, the Directive defines a ‘refugee’ as a ‘third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. Further, as to persecutory acts, the Directive provides that  ‘9(1) Acts of persecution within the meaning of Article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms [including Articles 2 and 3]; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)’; ‘9(2). Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment’. Continue reading

The Hungarian Dilemma from a Pluralist Perspective

untitledMatej Avbelj

[This piece was originally posted on the Verfassungsblog and is re-posted here with permission.  Readers may be interested in reading earlier posts on developments in Hungary, such as those by Kim Lane Scheppele here and here.]
The constitutional and political developments in Hungary in the last few years have stirred a lot of controversies and also raised significant academic attention. This blog has provided not only a wonderful forum for an exchange of different views, but it has also produced original and thought-provoking proposals for tackling the Hungarian problem.
However, the “reverse Solange” idea, the call for the establishment of a special Copenhagen Commission, for a straightforward supremacy of the Charter and other insightful proposals, all appear to be addressing the Hungarian dilemma from within the constitutional register. This is, of course, a legitimate choice, but it is neither exclusive nor neutral.
As the Lindseth-Halberstam exchange in particular demonstrated, the answers sketched for the resolution of the Hungarian dilemma are heavily dependent on the assumed or the desired character of the European Union.  Without engaging with the merits of the constitutional account of the European Union and without necessarily taking sides, I would like to use this post to explore – out of intellectual curiosity – the Hungarian dilemma from a pluralist perspective.

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