Neutrality or covert discrimination? A brief review of the decisions of the Achbita and Bougnaoui cases

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by Cláudia Moreira, masters student at University of Minho

The ban on wearing religious symbols, like the hijab or headscarf, the niqab and burka, is nowadays at the centre of controversies over which limits can be legitimately established for religious manifestations. In recent years, there have been many European countries which, given the strong Islamic presence in their territory, have understood that they should find legal solutions to the heated discussions about the use of women’s religious clothing. Belgium was the first European country in 2010 to ban the wearing of the burka in public spaces. It was followed by France, which, even though it had already adopted a law banning the use of religious clothing or symbols in public schools in 2004, based on the State secularity principle, only more recently extended the ban to the use the burka and niqab in public spaces.

The wide discretion that the European Court of Human Rights (ECHR) has been providing to Member States, in cases concerning religious symbols[i] and their usage limitation may, as well asserted Martinez-Tórron[ii], be the result of the ‘fear’ of propagating of radical ideals, which are harmful to European freedom. This fear, however, does not legitimize the adoption, under false aegis of principles, such as justice or equality of measures restricting religious manifestations.

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Editorial of November 2016

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by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor

Unveiling the meaning of freedom of religion in the workplace

Two preliminary proceedings are currently pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work. In both cases, Achbita (C-157/15), originated in Belgium, and Bougnaoui (C-188/15), originated in France, the ECJ is called upon to rule on a highly sensitive issue – the wearing of Islamic headscarves (and not the full veil) in the workplace. The questions are fundamentally the following: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

It is the first time that the ECJ is called upon to address such questions. In the meantime, both AG Kokott (in Achbita) and AG Sharpston (in Bougnaoui) have rendered their opinions. The issues raised in both cases require the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Both Advocates General concluded that a ban, such as those at issue in the main proceedings, could be regarded as indirect discrimination: the rules in question, although apparently neutral, were likely to put individuals of certain religions or beliefs at a particular disadvantage by comparison with other employees. Such discrimination may nevertheless be permitted if i) objectively justified by a legitimate aim, such as the interest of the employer’s business to enforce a policy of religious and ideological neutrality, and ii) so far as the principle of proportionality is observed (Article 2/2/b of Directive 2000/78).

However, the Advocates General disagree as to whether such a ban could be found as constituting direct discrimination (Article 2/2/a of Directive 2000/78). According to AG Kokott, a ban such as that at issue in Achbita could not be regarded as direct discrimination based on religion: a company rule prohibiting the wearing of visible signs of religious, political or philosophical beliefs, only creates a difference of treatment between employees who wish to give active expression to a particular belief and their colleagues who do not feel the same need. Thus, Ms Achbita had not been treated less favourably than another person on account of religion directly and specifically. On the contrary, AG Sharpston firstly concluded that Ms Bougnaoui’s dismissal amounted to direct discrimination against her on the basis of her religion as the right to manifest one’s religion is to be understood as an intrinsic part of the right to freedom of religion enshrined in both Article 9 of the European Convention of Human Rights (ECHR) and Article 10 of the Charter of Fundamental Rights of the European Union (CFREU). The distinction between direct and indirect discrimination is relevant as their possible justifications are different. In her analysis, AG Sharpston concluded that neither Article 4(1) of Directive 2000/78, nor any of the other derogations from the prohibition of direct discrimination on grounds of religion which that directive lays down, applied.

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On the CJEU’s case-law concerning the “social tourism” that preceded the Brexit referendum – between forces of cohesion and fragmentation

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by Professor Alessandra Silveira, Editor

One week prior to the scheduled date of the referendum about the UK leaving the EU a ruling of the Court of Justice of the European Union was published. The decision was to dismiss an action for failure to fulfil an obligation (article 258, TFEU) which had been filed by the European Commission against the UK seeking the conviction of such Member State for violating the prohibition of non-discrimination on ground of nationality[i]. Throughout the year of 2008, the European Commission received several complaints by citizens from other Member States living in the UK with objections about the refusal of British authorities to provide them social benefits due to the absence of proof of the right to reside. Following that, the EC accused the UK of not fulfilling the Regulation 883/2004 (on the coordination of social security systems) because it subjected the applicants of certain social benefits – namely the dependent child allowance or the child tax credit – to the so-called test of right to reside. The Commission considered that requirement incompatible with the meaning of the mentioned Regulation – once it makes reference to a habitual residence and not a legal residence – and, simultaneously, discriminatory towards the nationals from other Member States as such requirement is automatically fulfilled by the British nationals living in the UK.

The core of the case was to evaluate if a Member State’s permission to attribute certain social benefits only to the people who legally reside in its territory is in itself discriminatory under the terms of article 4 of the Regulation 883/2004. Under the title “equality of treatment”, the article states that, unless otherwise provided for by the own Regulation, persons to whom it applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof. All in all, in every situation comprised by the ratione materiae domain of application of the EU Law, any European citizen may invoke the prohibition of discrimination on ground of nationality which shows in article 18, TFEU and it is materialised in article 4 of the Regulation 883/2004. Those situations include the ones deriving from the exercise of the freedom to move and to reside in the territory of the Member States, which are laid in articles 20 (2), 1º§, a) and 21, TFEU.

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Summary of Costa/ENEL – 6/64

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: primacy; competition rules; non-discrimination; nationalisation; state aid.

Court: CJEU | DateJuly 15th 1964 | Case: 6/64 | Applicants: Faminio Costa vs Ente Nazionale Energica Elettrica

Summary: The Italian Republic nationalized the production and distribution of electric energy. In the middle of the proceedings, Mr Costa, shareholder of an energy company affected by the sector nationalization requested the application of article 177 of EEC Treaty to obtain the interpretation of articles 102, 93, 53 and 37 of the same treaty. To Mr Costa, this nationalization infringed the articles mentioned above. The Giudice Consiliatore decided to send a question to CJEU:

“Having regard to Article 177 of the Treaty of25 March 1957 establishing the EEC, incorporated into Italian law by Law No 1203 of 14 October 1957, and having regard to the allegation that Law No 1643 of6 December 1962 and the presidential decrees issued in execution of that Law (No 1670 of 15 December 1962, No 36 of 4 February 1963, No 138 of25 February 1963 and No 219 of 14 March 1963) infringe Articles 102, 93, 53 and 37 of the aforementioned Treaty, the Court hereby stays the proceedings and orders that a certified copy of the file be transmitted to the Court of Justice of the European Economic Community in Luxembourg.’”

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