Religious freedom, equal treatment in employment and occupation and case C-193/17 (22 January 2019)

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 by Maria João Lourenço, Assistant lecturer at UMinho

The phenomenon of globalization, contrary to expectations, has made cultural diversity and pluralism even more evident[i]. Because of multiculturalism, States are confronted with an increasing number of conflicts between minority legal orders and their national law, which is intended for the cultural majority.

In this chronicle, based on a recent decision of the Court of Justice of the European Union, we will reflect on a question which, although not new, continues to deserve particular attention since it violates the most basic principle of equality and, in the context of industrial relations, a clear discrimination on grounds of religion.

The case

A request for a preliminary ruling was made about the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union and Article 11, Article 2(2)(a), Article 2(5) and Article 7(1) of Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation during professional activity.

The reference for a preliminary ruling was made in the context of a dispute between Cresco Investigation GmbH and Markus Achatzi concerning the right of the applicant to receive a supplementary compensation in respect of the remuneration paid due to work on a Good Friday.
A possible breach of the principle of equality and the prohibition of discrimination on grounds of religion by the Bundesgesetz über die wöchentliche Ruhezeit und die Arbeitsruhe an Feiertagen (Arbeitsruhegesetz – ARG), BGBl. N 144/1983, was under discussion. Specifically, the provisions of Paragraph 7 (3) of the ARG, which establishes that the Good Friday is a public holiday for the members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church, was a matter for concern. Consequently, only members of these religious communities would be entitled to an uninterrupted rest period of at least 24 hours; to the remuneration corresponding to work not provided due to a holiday; to the remuneration they would receive had the work not been dispensed; and if they render service during the rest period of the holiday, they were also entitled, in addition to the remuneration referred to above, to the remuneration for work performed (§ 7 and § 9 of ARG).

The applicant is an employee of the defendant company and was forced to work on a Good Friday. Although he is not a member of any of those religious denominations, he lodged a claim for payment of the compensation which he claims to be entitled since national legislation is discriminatory on grounds of religion regarding working conditions and remuneration. The first instance court dismissed the action claiming that the difference in treatment was objectively justified. On appeal, the second instance amended it because it considered the national rules that determine differences of treatment in the concession of this holiday to be contrary to Article 21 of the Charter, which is directly applicable.

The Oberster Gerichtshof (Supreme Court) now has to decide on the appeal brought by the defendant and decided to stay the proceedings and to refer the following question, inter alia, to the Court of Justice for a preliminary ruling: Article 1 and Article 2 (2) (a) of Directive 2000/78 must be interpreted as meaning that national legislation under which, on the one hand, the Good Friday is only a public holiday for workers who are members of certain churches and on the other, that those workers are only entitled to compensation for a public holiday if they have to work during that holiday, which establishes direct discrimination on grounds of religion. If so, it questions if national legislation can be considered necessary to the preservation of rights and freedoms of third parties within the meaning of Article 2 (5) of that Directive, or specific measures to compensate for religious disadvantages within the meaning of Article 7 (1) of the refereed Directive[ii].

The Court has held that the legislation at issue in the main proceedings establishes a difference of treatment which is based directly on the religion of the workers. In fact, the criterion of differentiation to which this legislation refers comes directly from the workers’ belonging to a particular religion. The Court further points out that the granting of this holiday is not even subject to the condition that the worker complies with a certain religious obligation on that day and is only subject to the worker’s formal membership of one of those churches. In this way, the worker continues to be free to dispose of how he understands the period related to that holiday, for example for rest or leisure. In practice, the worker will be entitled to such compensation, even if he worked on Good Friday without having felt the obligation or need to celebrate this religious festival. Consequently, their situation is not different from that of the other workers who worked on that day, without benefiting from that compensation. According to the Court, “having regard to the financial nature of the benefit concerned by such different treatment and the inextricable link between the benefit and the grant of a public holiday on Good Friday, it must also be concluded that, in respect of the grant of such a financial benefit, the situation of employees who are members of one of the churches covered by the ARG is comparable to that of all other employees, regardless of whether or not they have a religion”. It concludes, therefore, that the national legislation in question has the effect of dealing differently, on basis of religion, with comparable situations and is therefore a source of direct discrimination on grounds of religion.

In view of the previous answer, the Court also had to consider whether the discrimination in question was necessary for the purposes of public security, order and prevention of criminal offenses, health protection and protection of the rights and freedoms of third parties [Articles (2) (5) and (7) of Directive 2000/78] and concluded that the national legislation cannot be regarded as the necessary measures for the preservation of rights and freedoms of third parties, in the terms of Article 2 (5) of that Directive, or specific measures to compensate for disadvantages relating to religion within the meaning of Article 7 (1) of that Directive.

Personal note

One of the most interesting aspects of the judgment is that the Court of Justice of the European Union did not ignore the referring court’s arguments, which pointed out that the religious needs of certain workers were not taken into account. Despite recognizing that certain collective labor agreements contain provisions comparable to § 7 of the ARG, notably as regards to the day of Yom Kippur in the Jewish religion, or Reformation Day in Protestant churches, in the absence of these, the workers are largely subject to the goodwill of the employer. Although this was not the subject of the discussion, it seems to us that the Court could have taken this argument to launch and open a necessary discussion on these inequalities.

Notwithstanding we fully agree with the decision taken. It seems to us that there is still a long way to go. While professing speeches for the protection of minorities and committing themselves internationally to ensuring equal and non-discriminatory treatment, States continue to act out of these same concerns and their speeches are innocuous.

Taking this judgment as a starting point, we cannot ignore the Portuguese labor legislation and question the extent to which it is justified to account as obligatory national holidays days with meaning for the Christian religious community, disregarding the importance conferred to other days by other religious communities living in Portugal with increasing expression (such as the Muslim community). We do not neglect the differences between the case and the question that we now raise: firstly, we debate whether the work performed on a religious holiday, being compensated for the believers, should not be equally rewarded for those who do not profess the same religion; now we question whether all those residing and working in Portugal and professing a religion other than the Christian do not deserve equal treatment, recognizing the legal order holiday on the holy days in the different religions professed.

Despite the differences, we understand that in these situations, the reasoning in the judgment under analysis can be applied mutatis mutandis, since what is being discussed will always be the violation of the right to equality between different religious communities.

We question whether such a provision, which does not include any other that protects religious freedom, is not in violation of Directive 2000/78 and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which recommends to the Member States the protection of minorities in their territories and the support of their identities.

The judgment that we have here makes us sure that the European Union will be an important engine for the establishment of a European standard of protection of minority rights, presupposing its growing commitment to the protection of fundamental rights. This is not a new issue, but it is a debate which deserves special mention and it is regrettable that the case-law of the Court of Justice in this area has not received wider public attention. However, we are hopeful that the permanent concern of this Court with the principles of equality and the prohibition of discrimination can be translated into internal legislative measures more in line with these fundamental rights.

We believe that this is an excellent motto for launching a serious and honest debate on the right to equality and religious freedom. We think it’s time. It’s time for change. It is time to pass on innocuous speeches. It is time to face and protect diversity. It is more than time to ensure equality!

[i] Such expectation was to be manifested by Philip Allott, “The emerging universal legal system”, in International Law Forum du droit international, vol. 3, 2001, pp. 14-16.

[ii] It thus provides for the abovementioned Articles of the Directive 2000/78:

Article 1:  ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.

Article 2 (2) (a): ‘direct discrimination shall be taken to occur where one person is treated less favorably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1’.

Article 2 (5): ‘This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’

Article 7 (1): ‘With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.’

Picture credits: Vespers and mass… by Catholic Church England.

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