Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 15 July 2021, European Commission v Republic of Poland, Case C-791/19, EU:C:2021:596

Failure of a Member State to fulfil obligations – Disciplinary regime applicable to judges – Rule of law – Independence of judges – Effective legal protection in the fields covered by Union law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Disciplinary offences resulting from the content of judicial decisions – Independent disciplinary courts or tribunals established by law – Respect for reasonable time and the rights of the defence in disciplinary proceedings – Article 267 TFEU – Restriction of the right of national courts to submit requests for a preliminary ruling to the Court of Justice and of their obligation to do so

Facts

In 2017, Poland adopted a new disciplinary regime concerning judges of the Sąd Najwyższy (Supreme Court) and judges of the ordinary courts. In the context of that legislative reform, a new chamber, the Izba Dyscyplinarna (‘the Disciplinary Chamber’), was established within the Supreme Court and was made responsible, inter alia, for hearing disciplinary cases relating to judges of the Supreme Court and, on appeal, those relating to judges of the ordinary courts.

Taking the view that, by adopting that new disciplinary regime, Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, the European Commission brought an action for failure to fulfil obligations before the ECJ. The Commission submits, in particular, that in light of the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that chamber, and the way in which its members were appointed, that chamber does not provide all the guarantees of impartiality and independence.

The ECJ upheld the action for failure to fulfil obligations brought by the Commission.

Findings of the ECJ

First, the ECJ finds that Poland has failed to fulfil its obligations, under the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

The ECJ recalls that, as regards the rules governing the disciplinary regime applicable to judges, the requirement of independence derived from EU law means that, in accordance with settled case-law, that regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. Rules which define, in particular, both forms of conduct amounting to disciplinary offences and the penalties actually applicable, provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 CFREU, and lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions, constitute a set of guarantees that are essential for safeguarding the independence of the judiciary.

However, according to the ECJ, Poland has, in the first place, failed to guarantee the independence and impartiality of the Disciplinary Chamber and has thereby undermined the independence of judges by failing to ensure that disciplinary proceedings brought against them will be reviewed by a body offering such guarantees. Under the 2017 legislative reform, the  KRS, a body whose independence from the political authorities is questionable, has an important role in the process for appointing judges to the Supreme Court, in particular, in the appointment process of the members of the Disciplinary Chamber. The Disciplinary Chamber is to be made up exclusively of new judges appointed by the President of the Republic, on a proposal from the KRS, thereby excluding any possibility of transferring to that chamber judges already serving within the Supreme Court, even though such transfers of judges from one chamber to another are, in principle, permitted. Furthermore, those judges would benefit from, inter alia, a very high level of remuneration and the Disciplinary Chamber enjoys a particularly high degree of organisational, functional and financial autonomy in comparison with the other chambers of that court. All of those factors are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that disciplinary body to the direct or indirect influence of the Polish legislature and executive, as well as its neutrality with respect to the interests before it.

The ECJ notes, in the second place, that, in order to guarantee the independence inherent in their task and to avoid exposing them to the risk that their disciplinary liability may be triggered solely because of the decisions taken by them, rules should be laid down which define, in a manner that is sufficiently clear and precise, the forms of conduct which may trigger the disciplinary liability of judges. However, the national provisions in question, having regard to their wording alone as to the definitions of ‘disciplinary offence’, do not meet such requirements and are not such as to prevent the liability of judges from being triggered solely on the basis of the supposedly ‘incorrect’ content of their decisions. The ECJ considers it to be established that those definitions do not help to avoid that disciplinary regime being used in order to create, with regard to those judges who are called upon to interpret and apply EU law, pressure and a deterrent effect, which are likely to influence the content of their decisions.

In the third place, the ECJ finds that, by conferring on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with territorial jurisdiction at first instance in disciplinary cases relating to judges of the ordinary courts, Poland has failed to guarantee that such cases will be examined by a tribunal ‘established by law’ as is required by the second subparagraph of Article 19(1) TEU.

In the fourth place, Poland has also failed to guarantee that disciplinary cases brought against judges of the ordinary courts will be examined within a reasonable time. According to the new disciplinary regime, a judge who has been the subject of disciplinary proceedings closed by a final ruling may once again be subject to such proceedings in the same case, such that that judge permanently remains under the potential threat of such proceedings. In addition, the new procedural rules applicable to disciplinary proceedings concerning judges are liable to restrict the rights of defence of accused judges. Under those new rules, actions relating to the appointment of a judge’s defence counsel and the taking up of the defence by that counsel do not suspend the proceedings, not to mention the fact that the proceedings may continue despite the justified absence of the judge or his or her defence counsel. The new procedural rules may therefore increase the risk of the disciplinary regime being used as a system of political control of the content of judicial decisions.

Second, the ECJ finds that, by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the ECJ to be restricted by the possibility of triggering disciplinary proceedings, Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU. The national provisions from which it follows that national judges may be exposed to disciplinary proceedings as a result of the fact that they have made a reference for a preliminary ruling to the ECJ cannot be accepted, because they undermine the effective exercise of the discretion or the fulfilment of the obligation, by the national judges concerned, to make such a reference. In so doing, those provisions undermine as well the system of cooperation between the national courts and the ECJ thus established by the Treaties in order to secure uniformity in the interpretation of EU law and to ensure the full effect of that law.

Judgment of the Court (Grand Chamber) of 15 July 2021, IX v WABE eV and MH Müller Handels GmbH v MJ, Joined Cases C-804/18 and C-341/19, EU:C:2021:596

Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Internal rule of a private undertaking prohibiting the wearing of any visible political, philosophical or religious sign or the wearing of conspicuous, large-sized political, philosophical or religious signs in the workplace – Direct or indirect discrimination – Proportionality – Balancing the freedom of religion and other fundamental rights – Legitimacy of the policy of neutrality adopted by the employer – Need to establish economic loss suffered by the employer

Facts

IX and MJ, who are employed in companies governed by German law as a special needs carer and a sales assistant and cashier respectively, wore an Islamic headscarf at their respective workplaces. Taking the view that the wearing of such a headscarf did not correspond to the policy of political, philosophical and religious neutrality pursued with regard to parents, children and third parties, IX’s employer asked her to remove that headscarf and, following her refusal, temporarily suspended her from her duties on two occasions and gave her a warning. MJ’s employer, following her refusal to remove that headscarf at her workplace, first transferred her to another post in which she could wear that headscarf and then, after sending her home, instructed her to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs.

IX brought an action before the Arbeitsgericht Hamburg (Hamburg Labour Court) seeking an order that WABE remove from her personal file the warnings concerning the wearing of the Islamic headscarf. As for MJ, she brought an action before the national courts seeking a declaration that Müller Handel’s instruction was invalid and compensation for the damage suffered. MJ’s action before those courts was upheld and Müller Handel subsequently brought an appeal on a point of law before the Bundesarbeitsgericht (Federal Labour Court).

Both courts decided to refer questions to the ECJ concerning the interpretation of Directive 2000/78^[1].

Assessment of the ECJ

In connection with Case C-804/18, the ECJ examines whether an internal rule prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace constitutes, with regard to workers who observe certain dress codes based on religious precepts, direct discrimination based on religion or belief, within the meaning of Article 2(2)(a) of Directive 2000/78. The ECJ recalls its case-law according to which such a rule does not constitute discrimination of that sort provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way to dress neutrally, which precludes the wearing of such signs. Since every person may have a religion or belief, such a rule, provided that it is applied in a general and undifferentiated way, does not establish a difference of treatment based on a criterion that is inextricably linked to religion or belief.

In the case at hand, and subject to the verifications to be made by the referring court, the ECJ points out that WABE also required another employee wearing a religious cross to remove that sign. It appears prima facie that the internal rule at issue was applied to IX without any difference of treatment by comparison with any other person working for WABE, with the result that it cannot be considered that IX suffered a difference of treatment directly based on her religious beliefs, for the purpose of Article 2(2)(a) of Directive 2000/78.

Still within the analysis of Case C‑804/18, the ECJ recalls that a difference of treatment indirectly based on religion or belief, for the purposes of Article 2(2)(b) of Directive 2000/78, exists where it is established that the apparently neutral obligation which a rule encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. According to the findings of the referring court, the rule at issue in the main proceedings concerns, statistically, almost exclusively female workers who wear a headscarf because of their Muslim faith. Therefore, the ECJ starts from the premiss that that rule constitutes a difference of treatment indirectly based on religion and examines whether such difference of treatment may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes.

According to the ECJ, an employer’s desire to display, in relations with both public- and private-sector customers, a policy of political, philosophical or religious neutrality may be regarded as legitimate for the purposes of Article 2(2)(b)(i) of Directive 2000/78. However, such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate. The relevant elements for identifying such a need are, inter alia, the rights and legitimate wishes of customers or users and, more specifically, as regards education, “parents’ right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs recognised in Article 14 of the Charter or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children”. In assessing whether such a need exists, particular relevance should also be attached to the fact that the employer has adduced evidence that, in the absence of such a policy neutrality, its freedom to conduct a business, recognised in Article 16 of the Charter, would be undermined in that, given the nature of its activities or the context in which they are carried out, it would suffer adverse consequences.

The ECJ further emphasizes that, in order for an internal rule, such as that at issue in the main proceedings, to not be regarded as indirect discrimination, it must be appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied. Therefore, that policy should be genuinely pursued in a consistent and systematic manner, and the prohibition on wearing any visible sign of political, philosophical or religious beliefs imposed by that rule is to be limited to what is strictly necessary, in view of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.

In connection with Case C‑341/19, the ECJ examines whether indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting the wearing of visible signs of political, philosophical or religious beliefs in the workplace, with the aim of ensuring a policy of neutrality, can be justified only if that prohibition covers all visible forms of expression of such beliefs or whether it is sufficient that that prohibition is limited to conspicuous, large-sized signs provided that is implemented consistently and systematically.

The ECJ clarifies that such a limited prohibition is liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering. Thus, where the criterion of wearing conspicuous, large-sized signs of the aforementioned beliefs is inextricably linked to one or more specific religions or beliefs, the prohibition on wearing those signs based on that criterion will mean that some workers will be treated less favourably than others on the basis of their religion or belief, which would amount to direct discrimination, within the meaning of Article 2(2)(a) of Directive 2000/78, which cannot be justified.

Should such direct discrimination not be found to exist, the ECJ acknowledges that the prevention of social conflicts within the undertaking may constitute a legitimate objective for the purposes of Article 2(2)(b)(i) of Directive 2000/78. The ECJ emphasizes, however, that a policy of neutrality within an undertaking can be effectively pursued only if no visible manifestation of political, philosophical or religious beliefs is allowed when workers are in contact with customers or with other workers, since the wearing of any sign, even a small-sized one, undermines the ability of that measure to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality.

In connection with both cases, the ECJ interprets Article 2(2)(b) of Directive 2000/78 as meaning that national provisions protecting the freedom of religion may be taken into account as more favourable provisions, within the meaning of Article 8(1) of that directive, in examining the appropriateness of a difference of treatment indirectly based on religion or belief. Indeed, the EU legislature did not itself effect the necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment, for the purposes of Article 2(2)(b)(i) of that directive, but left it to the Member States and their courts to achieve that reconciliation. Consequently, Directive 2000/78 allows account to be taken of the specific context of each Member State and allows each Member State a margin of discretion in achieving the necessary reconciliation of the different rights and interests at issue, in order to ensure a fair balance between them.

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[1] Council Directive 2000/78/EC, of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).