Luxembourg not the end of the story on freedom of religion in the workplace? Judgment of the CJEU in the case of Commune d’Ans

The case of Commune d’Ans (C-148/22, 28.11.2023) concerned an employee of a Belgian municipality who performs her duties as head of office primarily without being in contact with users of the public service and who was prohibited from wearing an Islamic headscarf in her workplace. In the wake of that decision, the municipality amended its terms of employment, now requiring its employees to observe strict neutrality. As a consequence, any form of proselytising is prohibited and the wearing of overt signs of ideological or religious affiliation is prohibited for any worker, including those who are not in contact with the administered. The employee concerned complained before a Belgian Labour Court about breaches of her right to freedom of religion and of the prohibition of discrimination.

Before the Labour Court and the CJEU, the case was dealt with as a case about indirect discrimination on grounds of religion or belief. Consequently, Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation applied. Given that Article 51(2) of the EU-Charter does not allow the latter to extend the field of application of Union law and therefore obviously precluded direct reliance on Article 10 of the EU-Charter (freedom of thought, conscience and religion), Directive 2000/78 allowed the case to nonetheless be brought within the scope of Union law. On that basis, the CJEU interpreted Article 2(2)(a) of that Directive as meaning that:

“An internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake”.

One of the striking features of this ruling is that the weighing-up of the rights and interests at stake in this case is done at a collective level, not at the level of the individual complaining about discrimination. While the CJEU leaves to the Member States a “margin of discretion” and therefore accepts in principle the policy of “exclusive neutrality” which the municipality concerned wants to pursue (§§ 33-34), the assessment of whether any indirect difference in treatment generated by this policy is objectively justified and proportionate must be done, according to the CJEU, with regard to the right to freedom of thought, conscience and religion not of the complainant considered individually but of the entire municipal staff which, because they are all subject to the same exclusive neutrality policy at stake, is being considered as a single, undifferentiated entity.

In other words, the required assessment is to be based not on the individual but on the collective circumstances of the case. Logically, the fundamental rights being referred to under this approach are those of the entire collectivity of the staff concerned, not those of the complainant considered individually (see §§ 28 and 40).

The Strasbourg approach is different, based as it is on the individual rights flowing from Article 9 of the Convention, considered alone or in conjunction with Article 14 (prohibition of discrimination), as the case may be. The assessment of the justification of any interference with these rights must have regard to the particular circumstances of the case, which include the particular circumstances of the applicant. Thus, an examination in concreto rather than in abstracto, as in Commune d’Ans.

This was the case e.g. in Ebrahimian v. France. In finding no violation of Article 9 in this case, the ECtHR had regard to such general circumstances as the French secular model or the policy of strict neutrality imposed on the staff of the hospital concerned, but also to individual circumstances such as the difficulties she had encountered in her unit, the refusal by the applicant to apply for another function which was open to her within the same institution, the impact of her attire on the exercise of her duties, as well as the procedural safeguards and judicial remedies from which she had benefitted in her dealings with her employer (see also, following a similar approach, Eweida and Others v. United Kingdom).

It would therefore appear that such rulings as Commune d’Ans are not necessarily the end of the story for the persons concerned. This is because, being focussed on discrimination, Directive 2000/78 does not exhaust the issue of freedom of religion in the workplace. At best, it only exhausts the issue under Union law. Thus, in the event of significant and relevant individual circumstances not addressed under Directive 2000/78, these circumstances could in principle still be invoked, under Article 9 of the Convention, alone or in conjunction with Article 14, as the case may be, before the domestic courts and, after exhaustion of domestic remedies, before the ECtHR.

In other words, the Union law elements of a case like Commune d’Ans do not displace its Convention elements. Rather, on condition that Article 9, alone or in conjunction with Article14, have been lawfully invoked before the domestic courts, they remain to be assessed by these courts and, ultimately, by the ECtHR, along with the compatibility of the Commune d’Ans jurisprudence with these provisions, since the application of Union law must be Convention compliant (see, mutatis mutandis, Bivolaru and Moldovan v. France, § 103).

From this perspective, Commune d’Ans is also an example of an issue capable of being addressed both under Union law and under the Convention, with slightly different outcomes depending on the legal basis invoked. This illustrates the importance of the choice by the parties to judicial proceedings and the adjudicating judges of the legal basis for the claims being made.