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.

Disciplinary Chamber of the Polish Supreme Court: judgment of the ECHR in Reczkowicz v. Poland

In the case of Reczkowicz v. Poland (22.7.2021, 43447/19), the ECHR found that the Disciplinary Chamber of the Polish Supreme Court had not been a “tribunal established by law” and had lacked impartiality and independence. After abundently referring to several international legal instruments, including the case-law of the CJEU on the recent reform of the judiciary in Poland (notably joined Cases C‑585/18, C-624/18, C-625/18), the ECHR stated inter alia:

The right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. … It is also to be reiterated that 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”. (§ 260)

Disciplinary regime applicable to Polish judges: judgment of the CJEU in the case of Commission v. Poland

In the case of European Commission v. Poland (Régime disciplinaire des juges) (C-791/19, 15.7.2021), the CJEU decided on several complaints which had been raised by the European Commission, in the context of an action for failure to fulfill obligations (Art. 258 TFEU), and which concerned the new disciplinary regime applicable to Polish judges. In line with previous rulings (notably A.K. and Others, C-585/18, C-624/18, C-625/18; see below), the CJEU thereby expansively dealt with the requirements to be fulfilled under EU law for a domestic court to be independent and impartial. From a Convention perspective, the following aspects of the CJEU’s reasoning would appear to be noteworthy.

First, on the general relationship between EU law and the European Convention on Human Rights, the CJEU confirmed that pursuant to Article 52(3) of the EU-Charter, its interpretation of Articles 47(2) and 48 of the Charter must ensure a level of protection which does not disregard the one guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights (§ 165).

The approach adopted by the CJEU in this case would nonetheless appear to be somewhat different from the one usually adopted by the ECHR in similar cases. This could be explained by the fact that by their very nature, the complaints raised by the European Commission against the new disciplinary regime applicable to judges in Poland required the CJEU to look at the situation from an institutional perspective, covering simultaneously the independence and the impartiality of the judges concerned, considered in the abstract. Thus, the test and its application read as follows:

Taken together, 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 are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals. Such a development constitutes a reduction in the protection of the value of the rule of law for the purposes of the case-law of the Court referred to in paragraph 51 of the present judgment. (§ 112; see also §§ 59, 86, 98, 139).

By contrast, the ECHR primarily looks at the issues from the point of view of the individual applicant, thereby distinguishing between the independence of a judge and his/her impartiality and, as far as the latter is concerned, requiring any doubts of an applicant to be objectively justified (see, e. g., Morice v. France, 23.4.2015, 29369/10, § 76).

However, both Courts converge in emphasizing the importance of appearances in this field as an essential means of preserving the trust which justice in a democratic society governed by the rule of law must inspire in the citizens (see, e. g., Micallef v. Malta, 15.10.2009, 17056/06, § 98, recalling that “justice must not only be done, it must also be seen to be done“).

Finally, against this background, it comes as no surprise that on the issue of whether a court can be considered as “established by law”, the CJEU, in contrast with its approach on the other issues addressed, explicitly relied on Strasbourg case-law (§§ 168, 171). The reason would appear to be that under Article 6 of the Convention too, the answer to this issue can only be given from an institutional perspective, which is much closer to the perspective adopted by the CJEU in the present case. In this connection, see also the recent judgment in the case of Reczkowicz v. Poland (22.7.2021, 43447/19) in which, after abundantly referring to the case-law of the CJEU concerning the recent reform of the judiciary in Poland, the ECHR found that the Disciplinary Chamber of the Polish Supreme Court could not be considered a “tribunal established by law” (§ 277) (see also the post on this judgment, on this page).

10th Meeting of the Negotiating Group on EU accession

The CDDH ad hoc negotiation group (“47+1”) on EU accession to the European Convention on Human Rights held its 10th meeting from 29 June – 2 July 2021. Due to the COVID-pandemic, the meeting was held as a hybrid meeting (i.e. with delegates participating both in the meeting room and via video-conference). In total, more than 80 delegates participated. The Group discussed proposals related to the EU’s specific mechanism of the procedure before the European Court of Human Rights, the operation of inter-party applications (Article 33 of the Convention) and the principle of mutual trust between EU member states. 

In the course of this meeting, the Group held another exchange of views with civil society (including representatives from the AIRE (Advice on Individual Rights in Europe) Centre, Amnesty International, the Council of Bars and Law Societies in Europe (CCBE), the International Commission of Jurists and the European Network of National Human Rights Institutions (ENNHRI)). The exchange of views focused in particular on the principle of mutual trust between the EU member states as well as the situation of EU acts in the area of the Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union. The Group will hold its next meeting from 5-8 October 2021.

The European Public Prosecutor and the European Convention on Human Rights

The newly created European Public Prosecutor’s Office (EPPO) took up its duties in September 2020. The enclosed paper endeavours to examine to what extent its activity might come within the scope of the European Convention on Human Rights and the consequences thereof, for the EPPO itself and for the EU Member States.

The paper comes to the conclusion that the hybrid EPPO structure is operating under a hybrid set of fundamental rights, thus calling into question the well-established principle of the single set of norms applicable throughout criminal proceedings. Moreover, the system is characterized by a distortion of the commonly applied logical link between liability for violations of fundamental rights and control over the actions entailing those violations. EU Member States risk being held accountable under the Convention for actions on behalf of the EPPO which they did not fully control and which were subject to a different corpus of fundamental rights. The EU, for its part, takes the risk of seeing EPPO prosecutions being invalidated by domestic courts applying a Convention protection level which may be higher than the Union level.

9th Meeting of the Negotiating Group on EU accession

The CDDH ad hoc negotiation group (“47+1”) on EU accession to the European Convention on Human Rights held its 9th meeting from 23-25 March 2021 via videoconference. The Group discussed in particular proposals related to Article 53 of the Convention, the principle of mutual trust between the EU member states as well as the situation of EU acts in the area of the Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union. In total, more than 108 delegates participated. The next meeting is scheduled for 29 June – 2 July 2021.

Right to silence under the EU-Charter – judgment of the CJEU in the Consob case

In the Consob case (2.2.2021, C-481/19), which concerned proceedings relating to the lawfulness of penalties imposed for offences of insider dealing and failure to cooperate in the context of an investigation conducted by the Italian National Companies and Stock Exchange Commission (Consob), the CJEU ruled on the interpretation of Articles 47 and 48 of the EU-Charter and on the validity and interpretation of provisions contained in two legal instruments dealing with market abuse (Directive 2003/6 and Regulation 596/2014). When inquiring about the protection of the right to silence provided by Articles 47 and 48 of the EU-Charter, the CJEU drew to a large extent, by virtue of Article 52(3) of the EU-Charter, on the case-law of the ECHR relating to that right (para. 36-43).

Manifest deficiency in the execution of a European arrest warrant – judgment of the European Court of Human Rights in the case of Bivolaru and Moldovan v. France

In the landmark case of Bivolaru and Moldovan v. France (25.3.2021, 40324/16 and 12623/17), the ECHR ruled on the execution of two European arrest warrants (EAWs) for the purpose of the service of prison sentences in Romania. It found a violation of Article 3 of the Convention (prohibition of ill-treatment) in respect of one of the applicants and no violation in respect of the other. The details of the case are summarized in the press release below.

The judgment is noteworthy as it confirms and clarifies the principles to be applied by the domestic courts of the EU member States in the field of mutual recognition.

First of all, the judgment once more confirms that the Convention requires EU law to be applied in conformity with it. It equally confirms and illustrates the competence of the ECHR to assess that conformity.

The judgment furthermore recapitulates the Court’s doctrine on mutual recognition, as set out in Avotins v. Latvia (23.5.2016, 17502/07), which is the leading case on this topic. It stresses in particular that:

  • The presumption of equivalent protection, as established in Bosphorus v. Ireland (30.6.2005, 45036/98), in principle applies when by virtue of a mutual recognition mechanism domestic courts are left with no discretionary power and are legally bound to presume that another member State sufficiently respects fundamental rights. When this presumption applies, the Convention will be breached only if there has been a manifest deficiency in complying with the Convention, which is a lower standard than the ordinary violation.
  • In cases concerning the compatibility of the execution of an EAW with Article 3 of the Convention, any discretionary power of the judicial authority of the executing State in this field is limited to the assessment of the facts and has to be exercised within the framework strictly delineated by the case-law of the CJEU. The presumption of equivalent protection therefore applies.
  • The principle of mutual recognition must nonetheless not be applied in an automatic and mechanical way, to the detriment of fundamental rights.
  • Consequently, if a serious and substantiated complaint is raised before domestic courts to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. In that case they must apply EU law in conformity with the Convention.
  • These principles apply to all mechanisms of mutual recognition.

The judgment also provides some interesting information on how these principles play out in the field of European arrest warrants.

In this respect, it first notes the convergence between the case-law of the two European Courts as regards the assessment of the individual risks of ill-treatment to which persons can be exposed as a consequence of the execution of a EAW. At the same time, it stresses the different methodology applied by each Court: whereas the CJEU applies a two-step examination requiring evidence of systemic or generalised deficiencies in the issuing State before any individual risk resulting from these deficiencies can be identified (see e.g., below on this page, CJEU 17.12.2020, Openbaar Ministerie, joined cases C-354/20 PPU and C-412/20 PPU, para. 53-56), the ECHR focuses immediately on the individual risks incurred by the person concerned.

Thus, the convergence noted by the ECHR relates to the final individual test, not to the respective methodologies applied by the European Courts, which remain different and are therefore not interchangeable. This is illustrated by the fact that in the case of Moldovan, the ECHR found a violation of Article 3 on the ground that the French courts had transferred the applicant in spite of the fact that they had before them sufficient factual elements indicating that he would be exposed to a serious risk of ill-treatment by reason of the detention conditions in the prison in which he would be detained after his transfer. These factual elements only concerned the personal situation of Mr Moldovan, not any systemic or generalized deficiencies. At no point in this judgment did the ECHR inquire about such deficiencies in the Romanian prison system, contrary to the French courts which were bound by EU law to apply the two-step examination. The ECHR nonetheless found a violation of Article 3 on account of the fact that the individual risk incurred by Mr Moldovan had not been correctly assessed by those French courts.

This was the first time the Court rebutted the presumption of equivalent protection, because of a manifest deficiency in applying a mutual recognition mechanism. Thus, regardless of the methodology applied by the domestic courts, what matters from a Convention point of view is the correct application of the Convention standards in any individual case governed by EU law.

Finally, the judgment also illustrates the fact that in the field of mutual recognition the test to be applied in respect of complaints not covered by the presumption of equivalent protection (because of the discretionary power left to the judicial authority of the executing State and/or the absence of relevant CJEU case-law on the fundamental right at issue) is the higher standard of whether there has been an ordinary violation of the Convention, not whether there has been a manifest deficiency (§§ 131-132).

8th Meeting of the Negotiating Group on EU accession

The CDDH ad hoc negotiation group (“47+1”) on EU accession to the European Convention on Human Rights held its 8th meeting from 2-4 February 2021 via videoconference. The Group discussed in particular proposals related to the EU’s specific mechanism of the procedure before the European Court of Human Rights, as well as the operation of inter-party applications (Article 33 of the Convention) and of requests for advisory opinions under Protocol No. 16 to the Convention. In total, more than 110 delegates participated.