Category Archives: Recent Case Law

The right to a new trial following a conviction in absentia: judgment of the CJEU in the case of Spetsializirana prokuratura

In the case of Spetsializirana prokuratura (trial of an absconded suspect) (C-569/20, 19.5.2022) the CJEU applied Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings on a situation arising from the fact that an accused in domestic criminal proceedings had absconded. The issue was whether under that Directive the accused could be tried in absentia and, if so, would be, after reappearing, entitled to a new trial or, alternatively, another legal remedy allowing a fresh determination of the merits of the case.

The judgment is already noteworthy in that it represents another contribution by the CJEU to the interpretation of one of the directives on procedural rights in criminal proceedings, the list of those contributions being still rather short (see, for another recent example, the judgment in the case of IS).

A further interesting feature of this case is certainly the fact that it confronted the CJEU with a situation not explicitly covered by Directive 2016/343, i. e. the situation created by an accused who may be considered to have waived the right to a new trial laid down in Article 9 of the Directive. The Directive indeed covers the situations whereby an absent suspect is either properly informed about the upcoming trial or represented by a mandated lawyer (Article 8(2)) or indeed cannot be located by the authorities (Article 8(4)). It does not, however, deal with a suspect who, while being informed of his or her trial, waives his or her right to be present at it.

In the absence of an explicit provision addressing that eventuality, the CJEU therefore engaged into an interpretation of Article 8(2) of the Directive – which sets out the circumstances under which a judgment in absentia does not give rise to a right to a retrial –, with a view to determining when there could be such a waiver and whether it came within the scope of that provision.

Interestingly, the CJEU thereby relied on the case-law of the ECtHR on the requirements to be fulfilled for a waiver of procedural rights to be compliant with Article 6 of the Convention (Sejdovic v. Italy, Vilches Coronado and Others v. Spain) and, more specifically, on the fact that such a waiver can be inferred from the circumstance that the summons to appear could not be served on an accused on account of a change of address which the accused failed to communicate to the competent authorities (Lena Atanasova v. Bulgaria). In light of that case-law, the CJEU concluded that:

“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that that person may, subject however to the particular needs of the vulnerable persons referred to in recitals 42 and 43 of Directive 2016/343, be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgment is thus covered by Article 8(2) of that directive. (§ 48, emphasis added)

According to the CJEU, it was for the referring court to examine, in the light of its interpretation of Article 8(2), whether the accused could be deemed to have, tacitly but unequivocally, waived his right to be present at his trial, in which case he would not be entitled to a new trial.

While the harmony thus being created between Luxembourg and Strasbourg on the issue at stake is of course a welcome development, this case also illustrates the risks involved in trying to codify a subject matter such as procedural fundamental rights, which is primarily the result of a dynamic case-law resulting from the application of Articles 6 of the Convention and 47-48 of the EU-Charter (right to a fair trial).

It is indeed a well-known fact that the Convention is a « living instrument » and is interpreted accordingly by the ECHR, with the consequence that its rights must on occasion be adapted to new situations and their requirements refined. Yet, the present case reveals that not only does Directive 2016/343 not address the waiver of one of the main rights laid down by it, but also that, for obvious chronological reasons, it could not take on board more recent case-law developments such as those resulting from the more recent ECHR judgments referred to by the CJEU. Against this background, the question arises whether such Directives are intended to be updated accordingly or whether they might gradually turn into static alternatives to a dynamic case-law (on this, see No more common understanding, at p. 27-28)?

“Non bis in idem” in dual proceedings: CJEU judgment in the bpost case

In the case of bpost (C-117/20, 22.3.2022) a Grand Chamber of the CJEU gave another ruling on the requirements of the non bis in idem principle (prohibition of double jeopardy), enshrined in Article 50 of the EU-Charter, when applied to dual proceedings concerning the same facts. In the present case, the company bpost was successively fined by two national authorities: first by the Belgian postal regulator, on account of discrimination against some of its clients, and subsequently by the Belgian competition authority, on grounds of abuse of a dominant position.

From a Convention point of view, the ruling is noteworthy in that it represents some evolution of the CJEU’s doctrine on the application of the non bis in idem principle to dual proceedings, i.e. a combination of administrative and/or criminal proceedings applied in respect of the same reprehensible conduct. To the extent that the administrative part of such dual proceedings is to be considered, by virtue of an autonomous interpretation, as criminal for the purposes of the Convention and/or the Charter, an issue about non bis in idem may indeed arise. Yet the methodological differences which existed between the Strasbourg and the Luxembourg approach in this field and resulted in different protection levels had given rise to some concerns (on this, see Do we still need Article 6(2) TEU?, at pp. 1707 et seq.).

In A and B v. Norway, the ECtHR upheld the ban on duplication of trial or punishment laid down in Article 4 of Protocol No. 7 to the Convention, but accepted that depending on the circumstances, some dual proceedings could be seen as complementing each other so as to form a single coherent whole not breaching that provision. This required that they be combined in an integrated manner, notably through a sufficiently close connection in substance and in time. By contrast, in Menci and two other cases decided on the same day, the CJEU accepted the possibility of a duality of criminal proceedings in certain circumstances, by considering such a duality as a limitation permitted under Article 52(1) of the EU-Charter.

This resulted in two different approaches to the same provision, based on criteria which partly overlap and partly differ from each another. While these different criteria did not necessarily appear mutually exclusive or incompatible, their coexistence nonetheless confronted the domestic courts, who may have to combine them, with a new source of complexity and legal uncertainty.

In the bpost case, while sticking to its own methodology based on Article 52(1) of the EU-Charter, the CJEU now took on board some of the Strasbourg criteria which it had previously ignored in Menci. It did so notably by referring to the notion of the “coherent whole” which, according to the ECtHR, the two sets of proceedings at stake must build in order for them to be complementary (A. and B., § 130) and by adding the requirement of a proximate timeframe to the relevant criteria for determining whether that is the case (§§ 51, 53 and 56). It now also relied on A. and B. in confirming its own case-law on the requirement that dual proceedings must be foreseeable and proportionate in their effects. Most significantly, the CJEU mentioned side by side, as the source of its relevant case-law, the Luxembourg judgment in Menci and the Strasbourg judgment in A. and B. (§§ 51 and 53), thereby suggesting that its case-law had a common basis. This is a significant move towards common standards, considerably facilitating the work of domestic courts.

Overall, there would therefore appear to be increasing convergence between Strasbourg and Luxembourg as regards the application of non bis in idem on dual proceedings, despite the remaining methodological differences. This, it is suggested, should hardly come as a surprise in light of the fact that, as recalled by the CJEU itself (§ 23), Article 50 of the EU-Charter, when applied within the same Member State, corresponds to Article 4 of Protocol No. 7 to the Convention and should therefore, by virtue of Article 52(3) of the EU-Charter, be given the same meaning and scope.

Risk of breach of the right to a tribunal established by law following the execution of a European arrest warrant: judgment of the CJEU in the case of Openbaar Ministerie (Tribunal established by law)

In the case of Openbaar Ministerie (Tribunal established by law in the issuing Member State) (joined cases C-562/21 PPU and C-563/21 PPU, 22.2.2022) the CJEU gave another ruling on the execution of a European arrest warrant (EAW) in the face of a (risk of a) breach of the right to a fair trial (Article 47(2) of the EU-Charter) in Poland. This time, the question asked by the executing judicial authority, the Amsterdam District Court, was about the consequences to be drawn from generalised deficiencies relating to the independence of the judiciary in that country.

In terms of the interaction between EU law and the European Convention on Human Rights, the picture resulting from the CJEU’s ruling is a contrasted one. On the one hand, as regards the requirements flowing from the right to an independent tribunal, the CJEU underscored the common ground existing between its own case-law and that of the European Court of Human Rights (§§ 56-57).

As a consequence, and probably for the first time, the CJEU considered that the case-law of the ECtHR finding a breach of the Convention requirements in respect of a tribunal established by law, by reason of the procedure for the appointment of judges, could be taken into account by the executing judicial authority for the purpose of establishing the existence of systemic or generalised deficiencies in the issuing Member State (§ 79). In the same vein, the CJEU considered of equal relevance in this context the case-law of the Polish Constitutional Tribunal challenging the primacy of EU law and the binding nature of the Convention, as well as the binding force of judgments of the CJEU and of the ECtHR (§ 80). In other words, and indeed very interestingly, in the CJEU’s opinion violations of the Convention seem to be part of the picture to be considered when assessing the existence of systemic or generalised deficiencies within the meaning of EU-law.

On the other hand, however, differences remain in terms of the methodology applied to the fundamental rights concerned in a case like this, with the CJEU confirming and further elaborating on the two-step examination required for the assessment of whether (the risk of) a breach of fundamental rights can justify an exception to the obligation to execute a EAW (on this issue, see also Openbaar Ministerie (Independence of the issuing judicial authority and The EAW under the Convention).

In this connection, the CJEU elaborated at great length on the need for systemic or generalised deficiencies to be individualised, i.e. for their impact on the personal situation of the person concerned to be duly demonstrated by that same person. This should be done on the basis of a several criteria which are enumerated by the CJEU but which at the same time would appear, in their combination, to be of a rather complex handling (§§ 84 et seq.). At this point, one may therefore ask whether taken together, the overall amount and the nature of the evidence required does not represent a standard of proof which in the end is higher than the one applied by the ECtHR. If so, this would result in lesser protection for the person concerned. In support of this rather strict approach, the CJEU referred to the preservation of the effectiveness of the EAW system (§§ 47 and 63), the fundamental rights of the victims of the offences concerned (§ 60) as well as the fight against impunity (§ 62).

By contrast, the ECtHR does not consider systemic or generalised deficiencies in the country of destination to be a precondition for a real and individual risk of a breach of the Convention in that country to be established (see, concerning Article 3 of the Convention, Bivolaru and Moldovan). This would seem to be in line with the well-established principle according to which the Court’s role is not to decide in abstracto whether the law is compatible with the Convention, but rather to verify whether the manner in which the law was applied in the particular circumstances of a case complied with the Convention (see, among many others, Denis and Irvine v. Belgium, § 195).

Yet, it is also true that under Article 6 of the Convention, only a flagrant breach of the right to a fair trial in the country of destination can stand in the way of a deportation (see Soering v. United Kingdom, Stapleton v. Ireland). However,  it would not appear too difficult to consider an established lack of independence of a court to amount to such a flagrant breach.

In the end, as the case of Bivolaru and Moldovan shows, should a decision to execute a EAW be challenged before the ECtHR, the latter will focus on the individual circumstances of the person concerned. Under this approach, the absence of (proof of) systemic or generalised deficiencies cannot dispense the national authorities from nonetheless examining the personal risk incurred in the event of a deportation of that person. In other words, such deficiencies are no obligatory starting point or requirement under the Convention.

Seen from this perspective, the position of the CJEU comes down to considering that only such risks can be relevant for the protection of fundamental rights in an extradition context which originate in systemic or generalised deficiencies. Yet, while such deficiencies are often likely to have an impact on individual situations, this would not appear to justify the conclusion that they represent the only possible source of relevant individual risks. As the Strasbourg case-law shows, such risks can indeed also have their roots, for example, in specific circumstances or, as the CJEU itself suggests, in statements made in the context of a specific case (§ 97).

The right to information and interpretation in criminal proceedings: judgment of the CJEU in the case of IS

In the case of IS (C-564/19, 23.11.2021), a Grand Chamber of the CJEU dealt with the preliminary ruling procedure under Article 267 TFEU and the rights and obligations flowing from that provision for the courts of the Member States. It also gave a detailed explanation of the requirements of Directive 2010/64 on the right to interpretation and translation in criminal proceedings and Directive 2012/13 on the right to information in criminal proceedings, which it interpreted in light of the Strasbourg case-law relating to these matters.

The case in the main proceedings concerned criminal proceedings in absentia brought in Hungary against a Swedish national born in Turkey, who was prosecuted for an infringement of the Hungarian legislation on firearms and ammunition; this followed an investigation during which he had been questioned by the police in the presence of a Swedish-language interpreter, but without the assistance of a lawyer, even though this was the interview at which he was informed that he was suspected of having committed offences under that national legislation.

On the issue of the rights of the accused, the CJEU first recalled that according to Article 52(3) of the EU-Charter, in so far as that Charter contains rights which correspond to rights guaranteed by the European Convention on Human Rights, the meaning and scope of those rights must be the same as those laid down by that Convention. Consequently, the CJEU must ensure that its interpretation of Article 48 of the Charter (presumption of innocence and rights of the defence) ensures a level of protection which does not disregard that guaranteed by Article 6 of the Convention (fair trial), as interpreted by the European Court of Human Rights (§ 101). Interestingly and in contrast with most of its previous rulings on this subject, the CJEU did not mention here the autonomy of EU law as a limitation on the effects of Article 52(3). Whether that is intended or not remains to be seen.

On the issue of the interpretation and translation facilities offered to the accused, the CJEU ruled, with reference to the landmark judgment by the ECtHR in the case of Hermi v. Italy, that Article 5 of Directive 2010/64 requires Member States to take concrete measures in order to ensure that the quality of the interpretation and translations provided is sufficient to enable the suspect or accused person to understand the accusation against him or her and in order that that interpretation can be reviewed by the national courts.

With reference to Strasbourg case-law on the importance of proper information of an accused person for the fairness of his or her trial (Simeonovi v. Bulgaria, Pélissier and Sassi v. France and Sejdovic v. Italy), the CJEU furthermore interpreted Article 2(5) of Directive 2010/64 and Articles 4(5) and 6(1) of Directive 2012/13, read in the light of Article 48(2) of the Charter (rights of the defence), as requiring that if the interpretation provided was not of a sufficient quality to enable the accused person to understand the reasons for his arrest and the accusations against him, this would preclude the criminal proceedings from being continued in absentia.

Bosphorus presumption applicable to the storing of biometric data on a passport: decision of the ECHR in the case of Willems v. the Netherlands

The case of Willems v. the Netherlands (57294/16, 9.11.2021) concerned the refusal by the applicant to provide fingerprints that would be digitised and saved in his passport and in a database. Applying Regulation 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation 444/2009, the Administrative Jurisdiction Division of the Dutch Council of State dismissed as ill-founded the objections which the applicant had raised in this connection. The applicant then complained before the ECHR inter alia about a violation of Article 8 of the Convention (right to respect for private life).

In respect of the applicable EU legislation, the Administrative Jurisdiction Division considered, after referring questions to the CJEU for a preliminary ruling, that it left no room for the Member States to use alternatives to the prescribed way of storing the biometric data, nor did it provide for any applicable exceptions to the obligation to provide fingerprints.

In light of this finding, the ECHR recalled the requirements for the presumption of equivalent protection (“Bosphorus presumption”) to apply and concluded that they were fulfilled in the present case. As a consequence, there would only be a violation of the Convention in case of a “manifest deficiency” in the protection afforded by it (on this notion, see also Bivolaru and Moldovan v. France). As such a manifest deficiency had not been shown to exist by the applicant, the ECHR declared manifestly ill-founded the applicant’s complaint about a violation of Article 8.

EU law requirements of an independent and impartial tribunal previously established by law: judgment of the CJEU in the case of W.Ż.

In the case of W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C-487/19, 6.10.2021) the CJEU ruled on the transfer without consent of a judge of an ordinary Polish court. It held that the order by which the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court, ruling at last instance and sitting as a single judge, dismissed the action of that judge must be declared null and void if the appointment of the single judge concerned took place in clear breach of fundamental rules concerning the establishment and functioning of the judicial system at stake.

In the case at hand, the President of the Republic had appointed the single judge concerned despite a decision by the Supreme Administrative Court ordering that the effects of the resolution of the National Council of the Judiciary recommending the appointment of this judge be suspended pending a preliminary ruling of the CJEU.

Among other things, the CJEU referred to the case-law of the European Court of Human Rights concerning in particular the right of members of the judiciary to protection from arbitrary transfer (§ 116), the concept of a “tribunal established by law”, the process of appointing judges (§§ 124-125), the requirement that the organisation of the judicial system does not depend on the discretion of the executive (§ 129) and the need to preserve the integrity of the appointment of judges as a way to avoid reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned (§ 130). In Dolińska-Ficek and Ozimek, the European Court of Human Rights “fully subscribed” to the CJEU’s reasoning (§ 328).

The CJEU also recalled that by virtue of Article 52(3) of the EU-Charter, it must ensure that the interpretation which it gives to the second paragraph of Article 47 of the EU-Charter (right to effective judicial protection) safeguards a level of protection which does not fall below the level of protection established in Article 6 § 1 of the Convention (right to a fair trial), as interpreted by the European Court of Human Rights (§ 123). However, there is no explicit inquiry or demonstration by the CJEU on whether the Convention level of protection has been respected in the present case.

Rights of the defence and mutual recognition of financial penalties: judgment by the CJEU in the case of Prokuratura Rejonowa Łódź-Bałuty

In the case of Prokuratura Rejonowa Łódź-Bałuty (C-338/20, 6.10.2021), which concerned Framework Decision 2005/214 on the application of the principle of mutual recognition to financial penalties, the CJEU drew on the case-law of the European Court of Human Rights on the scope of Article 6 of the Convention (fair trial) in order to conclude, by reference to Article 52(3) of the EU-Charter, that addressees of financial penalties falling within the scope of Framework Decision 2005/214 are entitled to rely on the fundamental rights enshrined in the second paragraph of Article 47 and Article 48(2) of the EU-Charter, notably the right to be informed in a language which they understand of the essential elements of a decision imposing such a financial penalty (§§ 29-30). The CJEU furthermore relied on the case-law of the Strasbourg Court in identifying these essential elements (§§ 35-38).

That being so, the CJEU ruled that the competent authority of the executing Member State may, on the basis of Article 20(3) of Framework Decision 2005/214, oppose the recognition and execution of a decision imposing a financial penalty on the addressee thereof where that decision is notified to him or her without a translation of these essential elements into a language which he or she understands and without giving him or her, where appropriate, the possibility of obtaining such a translation (§ 40).

In this connection, the CJEU recalled that according to Article 3 of Framework Decision 2005/214, that Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. For this reason, Article 20(3) of that framework decision indeed provides that the competent authority of the Member State of execution may refuse to recognise and execute a decision requiring payment of a financial penalty in the event of infringement of fundamental rights or fundamental legal principles (§ 26).

One may however wonder why the EU legislature has made the refusal to recognise and execute such a decision only optional (“may refuse”) and not mandatory (“shall refuse”). It may be due to the fact that Article 20(3) refers to situations giving rise “to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed”, thus suggesting some uncertainty as to whether those rights and principles have indeed be breached in the concrete circumstances of the case. By contrast, the CJEU in § 26 refers to situations apparently not giving rise to such uncertainty (“in the event of infringement of fundamental rights or fundamental legal principles”). Maintaining the optional character of a refusal to recognise and execute a decision imposing a financial penalty in such circumstances would not appear entirely consistent with the mandatory principle stated in Article 3 of the Framework Decision (“shall not”), referred to above.

The Polish Chamber of Extraordinary Review and Public Affairs not an “independent and impartial tribunal established by law”: judgment by the ECHR in the case of Dolińska-Ficek and Ozimek v. Poland

In the case of Dolinska-Ficek and Ozimek v. Poland (49868/19 and 57511/19, 8.11.2021) the European Court on Human Rights ruled on the requirements of the right to an independent and impartial tribunal established by law, protected by Article 6 § 1 of the Convention. It did so in the context of applications brought by two Polish judges who had applied for vacant judicial posts in other courts but had not been recommended for those posts by the National Council of the Judiciary (NCJ). They complained that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (Chamber of Extraordinary Review), which had examined their appeals against the resolutions of the NCJ, had not been a “tribunal established by law” and had lacked impartiality and independence.

In this connection, the Court recalled: Although the right to a “tribunal established by law” is a stand‑alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. While all three elements each serve specific purposes as distinct fair trial safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. (§ 315)

The Court found that the procedure for appointing the judges concerned had been unduly influenced by the legislative and executive powers. This had amounted to a fundamental irregularity which had adversely affected the whole process and compromised the legitimacy of the Chamber of Extraordinary Review which had examined the applicants’ cases. The Chamber of Extraordinary Review was therefore not an “independent and impartial tribunal established by law” within the meaning of Article 6 § 1.

In reaching that conclusion, the Court, as previously in Reczkowicz v. Poland, amply referred to CJEU case-law, while applying its own methodology, notably the three-step test formulated in the case of Guðmundur Andri Ástráðsson v. Iceland for the assessment of whether a court can be considered a “tribunal established by law” (§ 272).

The Court identified two manifest breaches of domestic law which pertained to fundamental rules of the procedure for the appointment of judges. A first such breach resulted from a radical change of the election model following which the fifteen judicial members of the NCJ were no longer to be elected by their peers but by Parliament. This change had been initiated by a new jurisprudence of the Constitutional Court which the Court considered arbitrary, on account of the absence of a comprehensive, balanced, and objective analysis of the relevant circumstances in Convention terms (§ 317). The Court thereby relied on a similar conclusion by the Supreme Court which had itself conducted an extensive analysis of the domestic legislation in the light of the Convention case-law relating to Article 6 and the CJEU’s ruling in the case of A.K. and Others, to which the Court also extensively referred (§§ 305-306).

The second manifest breach of domestic law resulted from the President of Poland’s appointment of judges to the Chamber of Extraordinary Review despite an interim measure by the Supreme Administrative Court ordering the stay of the implementation of a Resolution by the NCJ recommending candidates for twenty posts of judges in the Chamber of Extraordinary Review, pending its examination of the appeals brought against that Resolution. The Court found that in so doing, the President of the Republic had demonstrated an attitude which could only be described as one of utter disregard for the authority, independence, and role of the judiciary (§ 330) and as blatant defiance of the rule of law (§ 338). It thereby relied on similar conclusions by the CJEU in the cases of A.B. and Others and W.Ż. (§§ 324, 327-328)

The ECHR recalls its case-law on the obligation for courts to give reasons when dismissing a request for a preliminary ruling by the CJEU: decision in the case of Quintanel v. France

By a decision in the case of Josette Quintanel v. France and 14 other applications (no. 12528/17 et seq., 17.6.2021) the ECHR declared inadmissible 15 applications against France which, inter alia, complained about the alleged failure by several administrative courts to properly motivate their refusal to grant the applicants’ requests that some EU law issues be referred to the CJEU for a preliminary ruling.

The ECHR first recalled that only the national courts which, under Art. 267 TFEU, are bound to turn to the CJEU for a preliminary ruling, i. e. those courts against whose decisions there is no judicial remedy under national law, are also under an obligation, flowing from Art. 6 of the Convention, to give reasons when dismissing a request by a party to the domestic proceedings for an EU law issue to be submitted to the CJEU (§ 89).

Consequently, in the present case only the Conseil d’Etat (Supreme Administrative Court) was bound to give reasons for its refusal to refer the case to the CJEU, which it had actually not done. However, the ECHR noted that a lower administrative court acting in the same case had previously well explained that in view of relevant CJEU case-law on the issue at hand such a referral was not required under Art. 267 TFEU. This being so, the ECHR considered that having regard to the proceedings as a whole, an answer compliant with Art. 6 of the Convention had been given to the applicant who had therefore been enabled to understand the reasons underlying the contested dismissal (§ 90). Consequently, Art. 6 had not been breached.

Freedom to wear visible political, philosophical or religious signs in the workplace: judgment of the CJEU in the case of Wabe and MH Müller Handel

In the cases of Wabe and MH Müller Handel (joined cases C-804/18 and C-341/19, 15.7.2021) the CJEU ruled on prohibitions on the wearing of visible forms of expression of political, philosophical or religious beliefs in the workplace, thereby applying Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The two complainants before the referring courts, respectively a special needs carer and a sales assistant, had both been prevented from wearing an Islamic headscarf on the basis of internal rules, applicable in their respective companies, which prohibited the wearing of any visible signs of political, philosophical or religious beliefs in the workplace.

Pursuant to Directive 2000/78, and in keeping with its previous case law (G4S Secure Solutions and Bougnaoui and ADDH), the CJEU carefully distinguished between direct and indirect discrimination on grounds of religion or belief. It thereby recalled that by virtue of Article 52(3) of the EU-Charter of fundamental rights, the right to freedom of conscience and religion, enshrined in Article 10(1) of the EU-Charter, corresponds to the right guaranteed in Article 9 of the Convention and has therefore the same meaning and scope as the latter provision (§§ 48 and 81). However, the CJEU did not draw any conclusions from this correspondence in terms of the limitations to which that right can be subjected.

Rather, it assessed the issue through the prism of the requirement of equal treatment, as prescribed by Directive 2000/78, which is presented as a specific expression of the general principle of non-discrimination enshrined in Article 21 of the EU-Charter (§ 62). At the same time, the CJEU stressed that the interpretation of Directive 2000/78 had to be done having regard not only to Articles 10 and 21 of that Charter but also to the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions (Article 14(3) of the EU-Charter) and the freedom to conduct a business (Article 16 of the EU-Charter) at stake in the present cases (§ 84).

Interestingly, the CJEU also considered that a national provision such as Article 4(1) of the German Basic Law (Grundgesetz), which requires limitations to the freedom of religion and conscience to be justified by the demonstration of specific rather than general risks, could be applied at domestic level as a provision which is more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of Directive 2000/78. Consequently, such a national provision offering a higher protection of the freedom of religion and belief than did Directive 2000/78 could be taken into account in examining the appropriateness of a difference of treatment indirectly based on religion or belief (§ 89).

One might wonder whether this opening towards more protective domestic provisions requiring limitations to the freedom of religion and belief to be justified by evidence of specific rather than general risks might perhaps also ease the tension seemingly existing between the Luxembourg case-law described above and the Strasbourg case-law on the same issue based on Article 9 of the Convention, notably the Eweida jurisprudence (Eweida and Others v. the United Kingdom, 15.1.2013, 48420/10, 59842/10, 51671/10 and 36516/10) which is indeed also based on a case-by-case approach and, thus, necessarily focuses on specific risks.