La giurisprudenza della Corte di Giustizia Europea sulla libertà religiosa nei luoghi di lavoro: un´analisi critica
Pierluigi Digennaro, Assegnista di ricerca ERC Project Share nell’Università di Milano
Questo breve articolo si propone di presentare in un’ottica critica la nascente giurisprudenza della Corte di Giustizia dell’UE sulla libertà di manifestazione religiosa sui luoghi di lavoro nelle aziende private. In particolare, lo scritto si occupa delle sentenze Bougnaoui c. Micropole, Achbita c. G4S Secure Solution, Vera Egenberger c. Evangelisches Werk für Diakonie und Entwicklunge V, IR vs. JQ. La Corte, specialmente con la decisione del caso Achibta ha posto le necessità economiche del datore di lavoro al di sopra della libertà religiosa del lavoratore. Vengono altresì richiamati i casi Eweida e Ebrahimian della Corte Europea dei diritti dell’uomo ove necessario. Le due Corti sembrano legittimare entrambe un’idea di neutralità chiusa o escludente che rischia di mettere a repentaglio la libertà religiosa. Infine, l’articolo affronta anche la questione della eventuale estensione del ragionevole accomodamento oltre i confini determinati dalla stessa direttiva 2000/78 per via giurisprudenziale.
The paper aims to present a doctrinal assessment of the ECJC case-law on the freedom to manifest one’s religious affiliation on the workplace to show internal inconsistencies among four judgments (namely Bougnaoui v. Micropole, Achbita v. G4S Secure Solution, Vera Egenberger v. Evangeli-sches Werk für Diakonie und Entwicklunge V, IR vs. JQ) and between them and the ECtHR case law as well as fallacies in the Court legal reasoning. The analysis intends also to bring to light how both the ECJC and the ECtHR accepted a specific idea of neutrality which is in stark contrast with the very reason of the European anti-discrimination law so embarking on a dangerous path. The paper also intends to contribute to the debate concerning the potential space allegedly opened by those judgments to reasonable accommodation of believers at the workplace.
Keywords: employees’ freedom to manifest religion – EUCJ case law – neutrality and laicism – reasonable accommodation.
1. The issue of the freedom of religion in the workplace in the light of the EU case law: a premise - 2. Bougnaoui and Achbita judgments analysis - 3. The idea of neutrality behind the Courts' judgments - 4. The Egenberger and IR vs. JQ judgments - 5. Conclusions - NOTE
1. The issue of the freedom of religion in the workplace in the light of the EU case law: a premise
The way the European legal framework on the matter of freedom of religion has been interpreted by both the Court of Justice (EUCJ) and the Court of Human Rights (ECtHR) has two levels of relevance. It is significant because of the relevance of religion itself for large sections of the population and because it is a litmus test to measure the capability of the European institutions to handle diversity, which is growing due to the vast ongoing migration movement, in our society. As usual, the workplace is a key area both because personal needs can come into conflict with the necessity to standardise behaviours to pursue economic targets and because of the role that work has in terms of the inclusion of each person in a given society. Over the last two years, the EUCJ released five judgments whose topic was discrimination on the grounds of religious belief at work, with the circumstances scrutinised covering all the stages from the hiring process to individual dismissal. The latest case of this series is the Cresco  case. It raises many issues and it is very interesting per se, but it is not analysed in this paper because it is not particularly relevant for the points I would like to stress. In the Cresco case, indeed, the source of the assumed discrimination was in a national law while all the judgements analysed below are related to discrimination rooted in rules imposed by the employer or from its conduct. Therefore I will address the core of the [continua ..]
2. Bougnaoui and Achbita judgments analysis
The analysis inevitably needs to start from the judgments released in 2017. Although the final aim of the employer’s behaviour was the same both in the Bougnaoui and Achbita cases, i.e. matching the wishes or prejudice of the customers, a divergent legal framing of the circumstances determined two different verdicts. Indeed the final decisions of the Court rest on the differences in justifications available for direct or indirect discriminatory conducts respectively, with Art. 2-second paragraph letter b) leaving a broader opportunity for employers to escape any charge. In the Bougnaoui-case the employer openly admitted that the company dismissed Ms. Bougnaoui because it intended to take account of the wishes of a customer. It was a case of blatant discrimination and so the Court had to state that to impose a specific dress code that complies with customers’ tastes or prejudices cannot be considered as a genuine and determining occupational requirement under the law. The Court specified that this kind of verdict was only possible framing the case as an episode of direct discrimination  so meaning that when an internal rule exists which aims at prohibiting the wearing of any visible sign of political, philosophical or religious beliefs, the employer’s behaviour has to be considered as a potential case of indirect discrimination  (points 32-34). This moved the dispute over the legitimacy of the aim targeted by the employer by means of the [continua ..]
3. The idea of neutrality behind the Courts' judgments
One of the most alarming assumptions that emerges from Bougnaoui and Achbita is the idea that disparate treatment is legitimate when the employer intends to pursue a policy of ideological neutrality that bans all symbols of religious faith from the shared environment and consequently ask everyone to cancel their religious affiliation and personality when they are at work. In this way, the Court decided to extend a specific idea of ‘exclusionary neutrality’ typical only of some European legal frameworks in relation to private employment and in doing so the UEJC shared the vision exemplified by the Ebrahimian case ruled on by the ECtHR . To be precise, the Court of Justice did more than this since the Achibta case results in a further step forward in the direction of an expansion of the ‘exclusionary neutrality’ over the limit already reached by the ECtHR case law by means of the Ebrahimian verdict. In the latter case, the «protection of the rights and freedoms of others» clause stated in paragraph 2 of the art. 9 of the European Convention of Human Rights was the entry point for the ECtHR to justify a restriction of the freedom of religion and the right to manifest it. The Court preserved the legitimacy of a specific idea of neutrality embedded in the French system linking State neutrality and so the neutrality required for public officers or civil servants with the impartiality of the service provided and the equal treatment of [continua ..]
4. The Egenberger and IR vs. JQ judgments
Even if other questions were also brought to the Court , the Egenberger and IR v. JQ trials revolved exactly around the interpretation of the article 4 paragraph 2 of the Directive 2000/78. First of all, in the Egenberger case, the Court clarified that a church or other organization whose ethos is based on religion or belief intending to recruit an employee cannot itself determine authoritatively the occupational activities for which a specific faith constitutes a genuine, legitimate and justified occupational requirement. Once the review of the compliance with the criteria imposed by the directive was left to the church or the organization intending to practise a difference of treatment in place of an independent authority, i.e. a judge, it would be deprived of effects (points from 42 to 46). Secondly and more importantly the Court was asked when religion or belief constitutes a genuine, legitimate and justified occupational requirement within the meaning of Article 4(2) of Directive 2000/78. The Court clarified that «a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned». This link, added the Court, may follow either from the nature of the activity (for example, because the tasks involve taking part in determining the ethos or in contributing to its proclamation) or from the circumstances in [continua ..]
The paper has shown that the newly created EUCJ case-law on the freedom to manifest religious affiliation in the workplace is open to criticism on many points. It lacks consistency both internally and also when compared with some of the ECtHR judgments on the same topic. Moreover, the way in which the Court interpreted the legal framework provided for by the Directive 2000/78 in the Achibta case, in particular, weakens the capability of the law to cope with discriminative behaviours above all in the current social scenario. Furthermore, the idea of neutrality that both the EUCJ and the ECtHR embraced could jeopardise the same freedom to manifest religious affiliation or other forms of spirituality. As was stated in the first section of the paper, there is one final issue that I would like to comment on briefly. Point 43 of the Achibta sentence has been considered as a ‘creative way’ to extend the scope of reasonable accommodation duty  over the scope intended by the directive or, at least, as a limited form of reasonable accommodation . On that point, the Court stated that it was for the referring court to ascertain whether it would have been possible for G4S to offer Ms. Achbita a post not involving any visual contact with customers instead of dismissing her. This opinion cannot be shared for three reasons. First of all, the Court specified that the employer cannot be required to take on any additional burden to comply with this weak [continua ..]