Religious Symbols—the Margin of Appreciation of the Member States in the Case Law of the European Courts in Light of a Recent and Relevant ECJ Judgement
Freedom of religion and conscience has many aspects in today’s societies. Wearing a headscarf to work, being able to practice one’s religious ceremonies publicly, or questionable randomized checks at airports are just some of the issues discussed frequently in public discourse. Religious freedom and freedom of conscience is one of the fundamental rights that belong to the deepest parts of one’s identity.
End of last year, the European Court of Justice issued a preliminary ruling regarding the use of religious symbols in the workplace, reviving the discussions regarding this topic. Analyzing the judgements of the European Court of Justice and the European Court of Human Rights we can establish that there are similarities between the case law on this particular aspect of the freedom of religion and conscience of the two institutions. In the following analysis, a comparison will be made between the margin of appreciation regarding wearing religious symbols at work in the judgements of the European Court of Human Rights and the discretion of the member states in adopting a strictly neutral policy regarding the usage of religious symbols in the workplace in ECJ decisions.
Differences in the approaches of Member States
As the research note of the European Court of Justice (ECJ) stated in 2016, the proposal to include a reference to “Christian Heritage” in the draft Treaty establishing a Constitution for Europe is a good example of the differences between the Member States and their stances on the relationship between state (EU) and religions. There is great diversity in concepts, laws, and practices regarding this field, as well as in the relationship between churches and the state. In some Member States, the separation between State and religion is complete in principle, while in other cases, states are having an established official religion. There are Member States who have an approach in between these two, without one of the churches predominating, recognizing certain institutions, and granting them rights.
All Member States are obliged to abide by some common rules. Articles 9 and 14 of the European Convention on Human Rights and Articles 10 and 21 of the Charter of Fundamental Rights of the EU are some of these common provisions, but the member states also have their own constitutional norms protecting the freedom of religion and conscience. The freedom to choose and change a religion is absolute, it is a matter of conscience, but the freedom to express one’s convictions is relative, it can be subject to restrictions, respecting constitutional requirements. Making one’s convictions manifest can be done through customary behavior, specific percepts, or the wearing of special clothing or symbols having religious significance. Practicing freedom of religion by wearing religious symbols may be subject to certain restrictions. Some Member States have established the principle of neutrality of the State, which can, in certain situations, limit the right to wear religious symbols and thus the freedom of religion.
There were many debates regarding wearing religious clothing in public, France has passed legislation on this issue in 2004 and 2010, Belgium followed it with one in 2011, prohibiting wearing clothing concealing one’s face, and the Netherlands has adopted a similar law, which came into force in 2019. In Germany, the Federal Constitutional Court has found that an abstract danger of undermining the neutrality of the State is not sufficient for restricting the freedom of religion of Muslim teachers and their possibility to wear religious symbols. However, it highlighted that a general prohibition could be justified in case the outward appearance of the teachers significantly contributed to a specific danger of undermining the State’s neutrality. Thus, religious symbols are permitted in the majority of cases in Germany.
Belgium applies the principle of neutrality, which is not enshrined in the constitution, but it is included in royal decrees and orders of the governments of the regions and communities. According to the Council of State, it is linked to the prohibition of discrimination and the principle of equality for users of public services. Authorities must be neutral under the principle of rule of law and their authorities are the authorities of all citizens, meaning all citizens must be treated equally, without discrimination on grounds of religion or conviction. Public servants are required to observe the principle of equality. In Belgian case law, this issue comes up relatively often and the principle of neutrality has been interpreted in different ways, sometimes permitting to show the interested person’s religious affiliation and in other cases in the workplace.
Generally, the rules regarding wearing religious symbols at the workplace vary in Member States. There are also further differences between the rules regarding the private and public sector. There is no possibility for the total prohibition of wearing such symbols in the private sector, while it is possible in some Member States in the public sector.
The recent judgement of the ECJ
Most ECJ cases regarding the principle of neutrality in the workplace originate from Belgium, but the other cases relate to the wearing of religious symbols in the private sector. The recently adopted judgement in case C-148/22 relates to the wearing of religious symbols in a public administration workplace.
In this case, the applicant, a Belgian civil servant, has been working on the municipality level in the Belgian public administration since 2016, in a “back office” position, having no contact with clients. She requested in February 2021 to be able to wear a “headscarf at work”, a typical Muslim religious symbol. The municipal board has rejected her application two times. In March 2021, the municipal board has amended the terms of employment and inserted a requirement of “exclusive neutrality” in the workplace, meaning all municipal workers were prohibited from wearing any visible sign that might reveal their beliefs, whether or not they were in contact with the public. The applicant has brought several sets of proceedings to establish that her freedom of religion had been infringed by the decisions of the municipality.
The referring court is of the position that the prohibition on the wearing of the Islamic headscarf constitutes a difference in treatment directly based on her religion, as wearing other signs of beliefs by other municipality staff, discretely, has been tolerated. Furthermore, the fact that she performed her duties primarily in the “back office” means that this action by the municipality constitutes direct discrimination and ultimately, it is a breach of Council Directive 2000/78/EC of November 2000 establishing a general framework for equal treatment in employment and occupation. The Directive is implemented by the law of 10 May 2007 to combat certain forms of discrimination. The referring court also states that the purpose of the amendment is to ensure that the actions and appearance of public officials are strictly neutral, but the application varies in consistency. Thus it is “more exclusive” to the applicant and “more inclusive” for her colleagues.
The ECJ declared in previous judgements that an internal rule prohibiting only wearing conspicuous, large-scale signs of beliefs may constitute direct discrimination, however, this was not the situation in this case. It established that an internal rule decreed by the employer prohibiting wearing any visible signs of beliefs in the workplace does not constitute direct discrimination, since it covers all beliefs and convictions without distinction, it treats all workers “the same way by requiring them in a general and undifferentiated way, inter alia, to dress neutrally, which precludes wearing of such signs.” Since it applies to every religious, spiritual, and philosophical belief, it does not establish a difference in treatment, provided that it is “applied in a general and undifferentiated way”.
The ECJ declares that the referring court needs to assess, whether the amendment of the term of employment would put persons with a particular belief at a disadvantage, as that would constitute indirect discrimination. An internal rule prohibiting the visible wearing in the workplace of any sign of belief could constitute a difference of treatment indirectly based on religion or belief, if it is established that the “apparently neutral obligation contained in that rule results, in fact, in persons adhering to a particular religion or belief put at a particular disadvantage”. It does not constitute as indirect discrimination if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. The ECJ noted that it is in the sole jurisdiction of the competent national court to determine whether and to what extent the amendment of the terms of employment meets these requirements, the ECJ can only provide guidance.
The ECJ recognizes the legitimate aim of the municipality decision, as it has its legal basis in Articles 10 and 11 of the Belgian constitution, from where the principle of neutrality of the State is derivable. The Member State has a margin of discretion in designing the level of neutrality of the public service and its promotion in the workplace, even an entirely neutral administrative environment can be regarded as objectively justified by a legitimate aim, within the meaning of Article 2(2) (b) (i) of Directive 2000/78. General and undifferentiated permission for wearing visible signs of belief could also be the choice of the Member State. The ECJ also explained that the norm in question has respected the requirement of necessity. The referenced directive establishes only a general framework for equal treatment in employment, which means that it leaves a margin of discretion to the Member States, but the decision needs to be justified and proportionate. The Belgian legislator has left the decision on each case open for the courts to assess. The national courts still have to supervise if the internal rules are applied in a way that does not constitute indirect discrimination. The ECJ states that the referring court has the right and obligation to determine whether the municipality pursues the objective of neutrality in a genuinely consistent and systematic matter with regard to all employees. An exclusively neutral administrative environment as a goal can only be pursued if no visible manifestation of beliefs is allowed when employees are in contact with clients of the public service, however, it is the obligation of the referring court to weigh up the interests at stake, the freedom of thought, conscience, and religion guaranteed by Article 10 of the Charter of Fundamental Rights, anti-discrimination and the principle of neutrality.
A similar decision of the European Court of Human Rights
In the Ebrahimian v. France case from 2015, the European Court of Justice examined the margin of appreciation left to the states with a similar problematic at the core of the application. The applicant was recruited on a three-month fixed-term contract in 1999, which was once extended for one year, as a contracted employee of the hospital civil service, carrying out social worker duties in the psychiatric unit of a French hospital. In 2022 December, the applicant was informed that her contract would not be renewed due to the applicant refusing to stop wearing her head covering. The director of human resources informed her that she had not been criticized for her religious beliefs, but was reminded of the rights and duties of all public employees, specifically the ban on manifesting such beliefs at the place of work. The director has referenced the opinion issued by the Conseil d’État on 3 May 2000, which stated that “the principle of freedom of conscience, the principle of State secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs”. Furthermore, it states that “the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations”.
The court established that the decision not to renew the applicant’s contract is an interference with her right to freedom to manifest her religion or belief, as guaranteed by Article 9 of the European Convention on Human Rights. The opinion of the Conseil d’État from 3 May 2000 sufficiently clarified for the applicant, that removing her veil amounted to a fault and to her liability. The opinion lays down the basis for the requirement of religious neutrality by public employees when carrying out their duties, having regard to the principle of neutrality. The Court considered that the interference pursued a legitimate aim ensuring the respect for all of the religious beliefs held by the patients using the public service and were recipients of the requirement of neutrality, guaranteeing them strict neutrality, without distinction on the basis of religion.
Regarding the analysis of the proportionality of the interference, the court acknowledged the States may rely on the principles of secularism and neutrality to justify restrictions on the wearing of religious symbols by civil servants. It also recognizes that the approaches of the Council of Europe member states differ greatly in regulating the wearing of religious symbols in the workplace. Out of 26 states, 5 states prohibit wearing religious symbols at the workplace completely. It argues that States have a wide margin of appreciation when it comes to the principle of neutrality. The obligation of neutrality does apply to all public services in France. Furthermore, the disciplinary consequences of the applicant’s refusal to remove her veil during her working hours were clear to the applicant. The national courts are the best places to assess the proportionality of the sanctions and the French administrative court found that it was proportionate. The domestic authorities did not exceed their margin of appreciation when they decided to give priority to the requirement of state neutrality as it was not possible for the applicant to not wear her religious symbol. The interference with the applicant’s freedom was necessary and proportionate, therefore, there was no violation of Article 9 of the Convention.
The freedom of religion is a sensitive field in all countries. Due to historical development and culture, different traditions and approaches exist to the relationship of churches with states and generally to religion in the countries of Europe. The two cases presented in this post are clear examples of how the European Court of Justice and the European Court of Human Rights both recognize this. The latter applies a great margin of appreciation for its member states in assessing the proportionality of restrictions in this field and leaving a margin of maneuver for regulating the principle of neutrality while the former confirms the discretionary power of the EU’s member states in regulating the principle of neutrality (or lack of it) and supervising its application.
Religious symbols will always be a sensitive subject, closely related to culture and their perception in societies. The best decision, indeed, is to leave the matter in the hands of the member states as much as possible.
Árpád Lapu has been a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and research in the field of social sciences.