European Court OK's Company Rule Neutrally Banning Wearing of All Signs of Religious Belief

 In L.F. v. S.C.R.L., EU EDJ, Oct. 13, 2022), the Court of Justice of the European Communities, in a request from Belgium for a preliminary ruling, held that a private company may prohibit employees from wearing all visible signs of political, philosophical or religious belief in the workplace.  This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company's policy covers any manifestation of religious, philosophical or spiritual beliefs without distinction and treats all employees alike by requiring them in a general and undifferentiated way to dress neutrally. Such a rule might constitute indirect discrimination if it had a disparate impact on persons of one religion, but would not if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The question arose in the context of a company's refusal to employ a Muslim woman as an intern because she insisted on wearing a hijab. The Court issued a press release announcing the decision. Law & Religion UK also has coverage.

European Court Says Belgium Can Protect Religion and Religious Beliefs Of Employees

In LF v. SCRL, (CJEU, April 28, 2022), the Advocate General of the Court of Justice of the European Union issued a recommended answer to a question referred to it by the Brussels (Belgium) Labor Court.  At issue was whether a provision in Belgian law giving special protection to "religious or philosophical belief" of employees is consistent with European Council Directive 2000/78 on equal treatment in  employment. The Directive allows countries to enact laws that are more protective than those set out in the Directive. The Advocate General concluded that Belgium could give special protection to "religion and religious beliefs" but not just to "religious or philosophical beliefs" since those are not separately protected categories. The question arose in a case in which a Muslim woman was not offered an internship for which she interviewed because she insisted on wearing a hijab or other head covering in violation of the employer's rule that employees not wear clothing that expresses their religious, philosophical or political beliefs. [Thanks to Law & Religion UK for the lead.]

EU Court of Justice Says Neutral Ban On Employees Wearing Any Religious Or Political Symbols Is Permitted

In IX v. WABE eV, (CJ EU, July 15, 2021), the Court of Justice of the European Union gave preliminary rulings in two cases from German Labor Courts on the extent to which employers can ban employees from wearing visible political, religious or philosophical signs in the workplace.  At issue was whether applying such a ban to Islamic headscarves constitutes either direct discrimination or indirect discrimination. EU Directive 2000/78 allows apparently neutral rules that particularly impact persons of a specific religion or belief only if they are "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

In one case, at issue was whether a day care center could apply such a ban to a special needs teacher. The court held the ban does not constitute direct religious discrimination "provided that that rule is applied in a general and undifferentiated way." It held that the ban would not constitute prohibited indirect discrimination if the policy meets a genuine need on the part of that employer; the difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, and the ban is limited to what is strictly necessary.

The second case involves a sales assistant/ cashier at a drug store. The employer's policy only banned "conspicuous, large-sized political, philosophical or religious signs." The Court concluded that a ban limited to the wearing of conspicuous, large-sized signs cannot be a neutral policy since the wearing of any sign, even a small-sized one, undermines the ability ... to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality."

AP reports on the decision. [Thanks to Scott Mange for the lead.]

European Court Upholds Flemish Restrictions on Halal and Kosher Slaughter

In a case referred to it by Belgium's Constitutional Court, the Court of Justice of the European Union in Centraal Israëlitisch Consistorie van België and Others v. Vlaamse Regering, (CJEU Grand Chamber, Dec. 17, 2020), upheld a decree of the Flemish government requiring kosher and halal slaughter in the country to use a reversible stunning technique that is inconsistent with Jewish and Muslim religious requirements.  The Flemish government contended:

Electronarcosis is a reversible (non-lethal) method of stunning in which the animal, if it has not had its throat cut in the meantime, regains consciousness after a short period and does not feel any negative effects of stunning. If the animal’s throat is cut immediately after stunning, its death will be purely due to bleeding.... [T]he application of reversible, non-lethal stunning during the practice of ritual slaughter constitutes a proportionate measure which respects the spirit of ritual slaughter in the framework of freedom of religion and takes maximum account of the welfare of the animals concerned.

The European Court said in part:

[T]he Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today ... with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings....

... [T]he measures contained in the decree at issue ... allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.

The Court also issued a press release announcing the decision. Meanwhile, Israel's Ministry of Foreign Affairs harshly criticized the ruling, saying in part:

Beyond the fact that this decision harms the freedom of worship and religion in Europe, a core value of the EU, it also signals to Jewish communities that they are unwanted in Europe. 

Courthouse News Service reports on the decision.

European Court Rules On Jehovah's Witness Right To Payment For Surgery Without Blood Transfusion

In A. v. Veselības ministrija, (Eur. Ct. Justice, Oct. 29, 2020), the European Court of Justice instructed a Latvian court on the criteria to apply in a case in which a Jehovah's Witness child living in Latvia needed heart surgery, but the family had religious objections to blood transfusions. The operation was available in Poland, but not in Latvia, without a transfusion. Latvia's health service refused to pay for the procedure to be done in Poland. The family claims that this amounts to illegal discrimination based on religion. The court concluded:

Article 8(5) and (6)(d) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a patient’s Member State of affiliation from refusing to grant that patient the authorisation provided for in Article 8(1) of that directive, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that patient’s religious beliefs, unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim, which it is for the referring court to determine.

Courthouse News Service reports on the decision.

EU Court of Justice Advocate General Says Ban On Ritual Slaughter Is Invalid

The Court of Justice of the European Union last week released an Advocate General's opinion concluding that a decree of Belgium's Flemish region effectively banning kosher and Halal slaughter violates European Union law.  In Centraal Israëlitisch Consistorie van België and Others, (Sept. 10, 2020), Belgium's Constitutional Court requested a preliminary ruling on whether the Flemish region can require stunning of animals prior to slaughter.  The Advocate General concluded that the questions referred to the Court of Justice be answered as follows:

Point (c) of the first subparagraph of Article  26(2) of Council Regulation (EC) No  1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 4(1) and 4(4) thereof, and having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU, must be interpreted as meaning that Member States are not permitted to adopt rules which provide, on the one hand, for a prohibition of the slaughter of animals without stunning that also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on condition that the stunning should not result in the death of the animal.

It had been argued that it should be at least permitted to require stunning that is reversible just prior to slaughter.  The Advocate General rejected this claim, saying in part:

There has also been some debate before the Court as to whether the prior reversible stunning which does not lead to the death of an animal or post-cut stunning of vertebrates satisfies the particular methods of slaughter prescribed by religious rites of both the Muslim and Jewish faiths. In that regard, it would seem that there are divergent views on the matter within both faiths. As I pointed out in my Opinion in Case C-243/19 A. v. Veselibas Ministrija, a secular court cannot choose in relation to the matters of religious orthodoxy:

[Thanks to Law & Religion UK for the lead.]

EU Court of Justice: Halal and Kosher Meat Cannot Be Sold As Organic Without Pre-Slaughter Stunning

In Œuvre d’assistance aux bêtes d’abattoirs (OABA) v. Ministre de l’Agriculture et de l’Alimentation, the Court of Justice of the European Union in a Grand Chamber opinion held that under EU regulations, the EU Organic logo cannot be used for animals which have been slaughtered in accordance with Halal or kosher religious rites without first being stunned.  A ruling by the Court of Justice had been requested by French authorities in a case involving a challenge to the marketing of Halal beef products as organic. The Court also issued a press release summarizing the decision.  The Independent, reporting on the decision, says that 88% of the animals slaughtered as Halal in Britain are stunned before slaughter. Kosher slaughter cannot use pre-slaughter stunning.

European Court: Austria's Law Giving Good Friday Off Only For Christians Violates EU Directive

In Cresco Investigation GmbH v. Achatzi, (ECJ, Jan. 22, 2019), the European Court of Justice held that Austria's law which makes Good Friday a holiday only for employees who are members of specified Christian churches and which requires additional pay for them if they must work that day violates European Council Directive 2000/78/EC on equal treatment in employment. The Court went on to hold:

Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until [Austria] has amended its legislation ..., in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday....

Courthouse News Service reports on the decision.

European Court's Advocate General Says Halal and Kosher Meat Can Be Labeled "Organic"

In a September 20 press release, the Court of Justice of the European Union announced the proposed finding of the Advocate General in a reference from France's Administrative Court of Appeal on whether under EU rules halal and kosher meat may be labeled as "organic":

[T]he Advocate General proposes that the Court find that the Regulation on organic production and labelling of organic products and the Regulation on the protection of animals at the time of killing do not prohibit the issue of the European ‘organic farming’ label to products from animals which have been the subject of ritual slaughter without prior stunning carried out in the conditions laid down in the latter regulation.

The Advocate General said, in addition however, that a contrary ruling would not be an interference with freedom of worship. [Thanks to Paul deMello Jr. for the lead.] 

UPDATE: Here is the full text of the Advocate General's opinion in  Œuvrestance d’assistance  aux bêtes d’abattoirs (OABA) v. Ministre de l’Agriculture et de l’Alimentation.

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:

a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:

 Thus the lawfulness ... of 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. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....

... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.

.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.

Law & Religion UK has more on the decision.

European Court: EU Regulation Does Not Apply to Religious Court Divorces

In Sahyouni v. Mamisch, (CJEU, Dec. 20, 2017), the Court of Justice of the European Union held that EU Council Regulation 1259/2010 implementing enhanced legal cooperation in matters of divorce and legal separation does not apply to a divorce granted by a Muslim religious court.  The European Court said in part:

it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.

Law & Religion UK blog has more on the decision.

EU Ban On State Economic Subsidies Invalidates Some Applications of Tax Exemption Treaty with Vatican

Article 107(1) of the Treaty on the Functioning of the European Union prohibits EU states from granting aid that "distorts or threatens to distort competition [between Member States] by favouring certain undertakings or the production of certain goods..."  In Congregación de Escuelas Pías Provincia Betania v. Ayuntamiento de Getafe, (CJEU, June 27, 2017), the Court of Justice of the European Union held that this provision may invalidate some applications of a treaty between Spain and the Vatican exempting from taxes the property in Spain of Catholic dioceses, parishes and religious orders.  At issue is a municipal tax that would apply to the renovation and extension of a building at a school operated by a Catholic order. According to the Court, the ban on favoring certain "undertakings" applies only to "economic activity."  To the extent that the building is used for educational activities subsidized by the Spanish government, the religious order is not engaged "economic activity" and the EU Treaty does not bar a tax exemption.  However

it would seem ... the Congregación’s educational activities that are not financed by the Spanish State, corresponding to early-years teaching, extracurricular activities and post-compulsory education, meet all the criteria ... of the present judgment for classification as ‘economic activities’....

Law & Religion UK has more on the decision.

European Court of Justice Upholds Neutral Employment Rules Barring Religious Dress

The Court of Justice of the European Union today decided two cases raising the question of whether private employers may prohibit Muslim employees from wearing a headscarf at work.  In a case from Belgium, Achbita v. G4S Secure Solutions NV, (CJEU, March 14, 2017), the Court's Grand Chamber ruled:

Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.

By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In a case from France, Bougnaoui v. Micropole SA,  (CJEU, March 14, 2017), however, the Court's Grand Chamber held that where an employer does not have a general rule on dress:

Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

The Court issued a press release summarizing the decisions. The Guardian reports on the decision.

European Court Rules On Jurisdiction In Annulment Action By Third Party

Last week, the Court of Justice of the European Union issued an interpretation of European Council regulations on judicial cooperation in civil matters in the context of an extremely unusual annulment action.  Edyta Mikołajczyk (EM) is heir to the estate of Zdzisława Czarnecka (ZC), first wife of Stefan Czarnecki (SC).  SC died apparently in 2012. ZC died in 1999.  SC had remarried in 1956, to Marie Louise Czarnecka (MLC). In a suit in Poland, EM brought an action to annul SC's second marriage to MLC, claiming that SC's first marriage to ZC had not been dissolved at the time of his marriage to MLC.  If successful, this would presumably mean that EM stands to inherit a larger portion of SC's estate than otherwise.  In Mikołajczyk v. Czarnecka, (CJEU, Oct. 13, 2016), the Court of Justice held that its regulation on recognition and enforcement of judgments in matrimonial matters applies to an action for annulment of marriage brought by a third party following the death of one of the spouses.  However, the Court of Justice went on to hold that under the jurisdictional provisions of the regulation, the annulment action should have been brought in France, where SC and MLC had lived, and not in Poland where EM resides. Law & Religion UK has more on the decision.

European Court Favors Muslim Employee's Right To Wear Hijab At Work

The Court of Justice of the European Union last week released an Advocate General's opinion on whether under European Union Directive 2000/78 a private employer may bar a Muslim employee from wearing a hijab at work when a customer objects to the head covering. The Advocate General's opinion in Bougnaoui v. Micropole SA, (CJ EU, July 13, 2016), is the first step in the Court's rendering an advisory opinion to France's Court of Cassation on the meaning of the EU employment discrimination directive.  The Advocate General's opinion provides a recommendation to a panel of the Court's judges who will then render a decision. The Advocate General concluded that barring wearing of the hijab under these circumstances amounts to both illegal direct and indirect discrimination. The Advocate General said in part:

73. When the employer concludes a contract of employment with an employee, he does not buy that person’s soul. He does, however, buy his time. For that reason, I draw a sharp distinction between the freedom to manifest one’s religion – whose scope and possible limitation in the employment context are at the heart of the proceedings before the national court – and proselytising on behalf of one’s religion. Reconciling the former freedom with the employer’s right to conduct his business will, as I shall demonstrate, require a delicate balancing act between two competing rights. The latter practice has, in my view, simply no place in the work context. It is therefore legitimate for the employer to impose and enforce rules that prohibit proselytising, both to ensure that the work time he has paid for is used for the purposes of his business and to create harmonious working conditions for his workforce....

133. ... It seems to me that in the vast majority of cases it will be possible, on the basis of a sensible discussion between the employer and the employee, to reach an accommodation that reconciles adequately the competing rights of the employee to manifest his or her religion and the employer to conduct his business. Occasionally, however, that may not be possible. In the last resort, the business interest in generating maximum profit should then in my view give way to the right of the individual employee to manifest his religious convictions. Here, I draw attention to the insidiousness of the argument, ‘but we need to do X because otherwise our customers won’t like it’. Where the customer’s attitude may itself be indicative of prejudice based on one of the ‘prohibited factors’, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice. Directive 2000/78 is intended to confer protection in employment against adverse treatment (that is, discrimination) on the basis of one of the prohibited factors. It is not about losing one’s job in order to help the employer’s profit line.

Law & Religion UK has more on the decision.

EU Court Adviser Says Hijab Ban By Private Business Is Permissible

The Advocate General of the Court of Justice of the European Union has recommended to the Court that it interpret the EU's employment equality directive (Directive 2000/78/EC) as permitting businesses to ban Muslim employees from wearing a headscarf as part of an employer's broader policy seeking to achieve religious and ideological neutrality.  The case arose from a request from the Belgian Court of Cassation for clarification of the Directive's provisions. The EU Advocate's full opinion in Achbita v. G4S Secure Solutions NV (May 31, 2016) observes:

Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.

The opinion concludes in part:

The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion ... if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion....

Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard. In that connection, the following factors in particular must be taken into account: – the size and conspicuousness of the religious symbol, – the nature of the employee’s activity, – the context in which she has to perform that activity, and – the national identity of the Member State concerned.

The Court of Justice issued a press release on the Advocate's opinion, and Reuters reports further on it.

EU Court of Justice Rules On When Homosexuals Qualify For Refugee Status

On Thursday, the Court of Justice of the European Union issued a preliminary ruling interpreting Council Directive 2004/83/EC on minimum standards for third-country nationals to qualify as refugees. The Directive defines a refugee, in part as a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group...." In X, Y, Z v. Minister voor Immigratie en Asiel, (EU Ct. Justice, Nov. 7, 2013), the court held that:

the existence of criminal laws ... which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

... the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment ... which is actually applied ... must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

.... When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

The Court also issued a press release on the decision. So did ORAM (the advocacy group for LGBTI refugees). It discusses at length the problems that European officials will face in accurately assessing the credibility of asylum claims based on sexual orientation. The Los Angeles Times reports on the decision, focusing on the persecution of gays and lesbians in Africa-- the home continent of the 3 refugees who were parties to the case decided by the court.