Achbita and Bougnaoui: raising more questions than answers

Case Comment: Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

Samira Achbita and Asma Bougnaoui were both fired for wearing an Islamic headscarf in the workplace. In its Grand Chamber ruling of March 14th the Court of Justice of the European Union (CJEU) ruled that internal company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief. It also developed some criteria according to which indirect discrimination can be legitimate and objective.

The case Achbita has already attracted critical attention (see HERE, HERE and HERE). Indeed, it is of great significance. Advocate General Kokott sets out the core question in her Opinion:

“Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.”(para 1)

Developments with regard to the wearing of religious symbols and clothing are being closely watched across Europe and remain subject to ongoing discussions and political debate. The key question is whether and how this ruling of the CJEU provides a judicial space for employers to ban the wearing of religious symbols in the workplace.

The cases concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita the preliminary question referred asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical beliefs not just visible signs of religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

The CJEU however recognised the possibility that such an internal rule could lead to indirect discrimination. This would be the case if the rules were capable of putting individuals of certain religions or beliefs at a particular disadvantage in comparison with other employees. Nonetheless, it held an indirect difference of treatment may be objectively justified by a legitimate aim, provided that the measure at issue is appropriate and necessary for achieving that aim.

In its ruling the CJEU thus concludes that the aim of an employer to present a neutral image towards its clients is legitimate, as long as these rules refer only to employees in direct contact with clients. The CJEU concludes that the national court is to determine if and to what extent the company rules comply with these requirements in practice.

Comment

This ruling is interesting from many points of view.

First of all, the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious. It appears to contradict the ECtHR judgment in the case of Eweida and Others v. the United Kingdom where the Strasbourg Court ruled that there had been a violation of the right to freedom of religion or belief when Ms Eweida was not permitted to wear a crucifix at work. The ECtHR in Eweida considered that on one side was Ms Eweida’s desire to manifest her religious belief and on the other was the employer’s wish to project a certain corporate image, and that a fair balance had not been struck. Although the human rights court recognized that the employer’s wish to project a certain corporate image could be regarded as a legitimate aim, it found that the national court accorded it too much weight.

It could be argued that in contrast to Eweida, the ruling of CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees .

Second, it is remarkable that the CJEU extensively studies whether the objective is legitimate and the requirement is proportionate but at the same time fails to examine the proper balance between the desire of the employee to manifest her religious belief and the employer’s wish of a neutral workplace environment. On this issue Advocate General Kokott delivered the following opinion in para 127

it is for the referring court to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of Belgium“.

The question is whether the omission of the CJEU to examine the said fair balance provides enough guidance to enable national judges to determine whether a company ban on wearing visible religious, political or philosophical symbols, can be regarded as indirect discrimination. Or does it simply push this hot potato onto the plate of the national judges?

Third, it seems curious that in its assessment on whether or not the company’s internal rules can be considered a legitimate aim, the court primarily (maybe even solely?) focuses on the fundamental right of freedom to conduct a business (Article 16 CFR). Why, for example, idoes it not mention the right to work in Article 31(1): Every worker has the right to working conditions which respect his or her … dignity?. It seems that the reasoning of the Grand Chamber, and the way in which it weighs the various relevant elements, remains implicit at best – but perhaps is simply incomplete. This is problematic in such an important case.

In Bougnaoui, the core of the preliminary question was whether Article 4 (2) of Directive 2000/78 must be interpreted as meaning that the preference of a customer to receive services from a company employee who does not wear an Islamic headscarf can be considered a genuine and determining occupational requirement.

The ruling of the CJEU on this question is clear. It concluded that in the absence of any company rule, the mere desire of an employer to take into account the wishes of a customer to ban religious symbols is direct discrimination. Such a ban cannot be regarded as a genuine and determining occupational requirement within the meaning of the Framework Directive.

Various NGO’s have already claimed that the ruling of the CJEU legitimizes discrimination, in particular towards Muslim women. As for now it will depend on the national courts and law-makers to set out the conditions under which an internal company rule can ban religious clothing from the workplace.

Monique Steijns

Monique works within the Dutch Ministry of the Interior as an adviser on constitutional law and human rights. Monique studied law at the University of Amsterdam. She is part of the Netherlands Committee of Jurists for Human Rights and chairperson of the working group Constitutional and Administrative law.

Monique contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

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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The CJEU’s Response to the German Constitutional Court in ‘Gauweiler’

juropean-justiceProf Herwig Hofmann

This post originally appeared on the europaeus site and is re-produced here with permission.

Do exceptional situations make exceptionally good or exceptionally bad law? This is an old question often asked anew – especially in the context of the post-2008 economic crises travails of the European Economic and Monetary Union (EMU). The legal disputes which resulted from differing opinions about how to solve the crises and also how, incidentally, to improve the EMU’s governance have reached the Court of Justice of the European Union (CJEU). The most prominent case to date is the so-called Gauweiler case, a preliminary reference procedure initiated by the German Constitutional Court, the Bundesverfassungsgericht (BVerfG). I discuss this case in more fully argued working paper available on SSRN, ‘Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union‘.

Gauweiler concerns the legality of the decision of the Governing Board of the European Central Bank (ECB) of September 2012 on so called ‘Outright Monetary Transactions’ (OMT). This case is significant for legal integration in the EU since, although it is the first instance in which the German BVerfG has ever taken advantage of the preliminary reference procedure (Article 267 TFEU), the reference by the BVerfG was formulated in very terse words. Essentially, the reference asks for clarification about the legality of the ECB’s OMT decision. But that reference is not formulated in terms of a dialogue between Courts, each respecting the other’s distinctive powers. Instead, the BVerfG explains why it considers the ECB’s decision to be ultra vires of its mandate and asks the CJEU essentially to confirm this interpretation warning about potential consequences in its assessment of the ‘constitutional identity’ of the Federal Republic of Germany. Inherent in the reference is a thinly veiled threat not to accept the exclusive competence of the CJEU to review the legality of EU law and, instead, to unilaterally hold an act of an EU institution to be invalid within a Member State of the EU. The BVerfG reinforced its sceptical position of the primacy of EU law over the law of Member States by recalling in its decision for preliminary reference its case-law concerning the limits it perceives are set for the Federal Republic of Germany’s integration in the European Union. In its decision, it refers to and further interprets the scope of its own case-law making reference inter alia to its judgments concerning the Treaty of Maastricht, the Treaty of Lisbon and in Honeywell, as precedent for its questions to the CJEU. Continue reading

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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Taxing Times: the UK’s Challenge to the Financial Transaction Tax

KAProf Kenneth Armstrong, University of Cambridge

Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.

Samuel Beckett

Just over a year since the United Kingdom (UK) commenced legal proceedings against the Council of the EU challenging its decision to authorise the use of enhanced cooperation for the adoption of the proposed Financial Transaction Tax (FTT), the Court of Justice has, as anticipated, dismissed the UK’s application (Case C-209/13, United Kingdom v Council). This is another defeat for the UK following on from its unsuccessful challenge to the powers of the European Securities and Markets Authority to control ‘short-selling’. Whether the UK will have more success in the third of its triptych of legal challenges to measures adopted in the wake of the financial crisis – the cap of ‘bankers’ bonuses’ – is yet to be determined. However, in the lead up to the European Parliament elections, with the United Kingdom Independence Party riding high in the polls and the UK prime minister declaring that he will not act as prime minister following the 2015 general election unless there will be a referendum on the UK’s continuing membership of the EU, it is clear that these defeats before the Luxembourg court have both political and legal saliency.

 

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Making Infringement Procedures More Effective: A Comment on Commission v. Hungary, Case C-288/12 (8 April 2014) (Grand Chamber)

scheppele, kimKim Lane Scheppele, Princeton University 

On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground.   But it is important nonetheless because it signals serious trouble within the EU.   The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.

 The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party.   The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point.  

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Appointments to the Court of Justice and General Court – important developments

Christopher Brown

Lord Mance is giving the UKAEL Annual lecture on the “Composition of the Court of Justice” tonight. It ought to shed some light on the murky world of appointments to the Luxembourg courts, where judges are appointed by the Member States without necessarily having gone through any sort of competition beforehand (though this is not, thankfully, the case here in the UK).  Lord Mance sits on the panel set up under the Lisbon Treaty to scrutinise proposed appointments and give its opinion on the candidates’ suitability for office. The establishment of the panel is a welcome development, although many will say it is no substitute for an open competition.

In this connection, there have been some interesting developments in Brussels and Luxembourg. Back in March of this year, the Court of Justice of the European Union (CJEU) presented a proposal to amend in various respects the Court’s Statute. The most interesting proposal was to expand the size of the General Court (GC) from 27 judges to 39. The CJEU is rightly concerned about the length of time it currently takes to process cases – often upwards of 3 years – which risks compromising the right to effective judicial protection (enshrined in Article 47 of the Charter of Fundamental Rights). The backlog has been of concern to practitioners for some time. There are a number of reasons for it, one of which is the increased litigation which has come the GC’s way following the 2 rounds of accession to the EU in the last decade. Urgent action is certainly called for – hence the sensible suggestion to increase the GC’s size.

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