On 28 November the Court of Justice of the European Union (CJEU) ruled that States may prevent its employees from wearing any visible religious garments paraphernalia. This ruling comes after a series of laws all over Europe designed to prevent the wearing religious/cultural garments in various public spaces.
In the Case C-148/22 | Commune d’Ans a Muslim Belgian woman who worked for the municipality of Ans was prohibited from wearing an Islamic headscarf after requesting to do so, even though her job involved no interaction with the public. The municipality subsequently changed its employment contracts moving forward. One of the new terms of employment was that all employees must observe “strict neutrality”. “Strict neutrality” includes refraining from wearing any clothing or jewellery which identifies a worker as religious and refraining from proselytizing. These rules apply regardless of whether an employee works directly with the public. The woman then alleged that ban violated her right to freedom of religion and that she was the victim of discrimination. The Belgian Labour Court (tribunal du travail de Liège) was unsure whether the requirement of “strict neutrality” violated the EU’s prohibition against discrimination and requested a preliminary ruling by the CJEU.
Under Article 16 of the EU Charter of Fundamental Rights, which protects the right of businesses to conduct freely conduct business, the CJEU has developed the Neutrality Principle. This principle allows states and business to ban outward displays of religion in the workplace. Under the law, member states have a margin of discretion when creating measures to insure neutrality. However, the objective of neutrality must be pursued in a “consistent and systematic” manner and the measures used must be limited to what is “necessary”. The CJEU deemed that a ban on any identifying clothing or jewellery fell within Belgium’s margin of discretion as it was pursuing a legitimate aim and the measures taken were no more than necessary. The Court said that because the rule was applied in a “general and indiscriminate manner” the measure was no stricter than necessary to achieve neutrality. The Court finished by stating that ensuring the measures were not more than necessary was the job of national courts.
This ruling comes as more and more European countries pass laws to prevent people from wearing religious or even cultural garb. France has been a vocal proponent of this, most recently banning schoolgirls from wearing the abaya; a cultural but non-religious attire. Several other European countries, Austria, France, Belgium, Denmark, Bulgaria, and the Netherlands, have similar laws banning the wearing of the hijab in schools and sometimes on public transportation, and Germany, Italy, and Spain have bans in certain localities. The CJEU itself has ruled on several cases involving the banning of headscarves in the last ten years, each time finding that the ban was not breaching the right to freedom of religion. This most recent case and the ones that came before are a troubling and prediction of the future. The European Centre for Law & Justice, in response to this most recent case, wrote an article stating the CJEU’s view of religious freedom, namely that it should be something confined to your home and weekly religious service, is in direct contradiction to what it means to be religious. The Centre wrote, “In this competition of beliefs, there is no true neutral ground…Authentic religious believers in Europe, be they Christian, Jewish, Muslim, etc., should be very troubled by the developments in the CJEU.”