What Is The Request Of Minimum Harmonization Of Telephone Substitution Rights? Roughly Farther Reflections On The Achbita Case.

Eleanor Spaventa, Director of the Durham European Law Institute as well as Professor of European Law, Law School, Durham University

Ronan McCrea has already provided a real thoughtful analysis of the headscarf cases; this contribution seeks to complement that analysis past times focusing on ii issues arising from the Achbita case: outset of all, the structural problems amongst the ruling of the Court, both inwards damage of reasoning as well as for the lack of data provided; secondly, the to a greater extent than full general implications of the ruling for key rights protections as well as the notion of minimum harmonization inwards the European Union context.

It powerfulness live on recalled that inwards the Achbita instance a Muslim adult woman was dismissed from her employer for refusing to take her headscarf, opposite to the employer’s policy of neutrality, which included a ban on wearing religious symbols. The instance as well as so centred on the interpretation of the framework discrimination Directive (2000/78) which prohibits, inter alia, discrimination on grounds of religion. The Belgian as well as French Government (which had a direct involvement because of the Bougnaoui case) intervened inwards favour of the employee, believing that the discrimination at number was non justified (Achbita opinion, para 63). The Court, next the Opinion of AG Kokott, works life that the rules at number powerfulness constitute indirect discrimination; that the employer’s aim to allegedly keep neutrality was a legitimate aim as it related to its liberty to comport a concern as protected past times Article xvi Charter. It as well as so indicated that the policy was proportionate, if applied amongst or so caveats.

The reasoning of the Court – or so structural deficiencies

The headscarf cases are of key importance to the European Union as well as to all of its citizens, non exclusively those who practise a non-dominant religion, as well as as such own got been widely reported fifty-fifty exterior of the EU. One powerfulness own got expected the Court to engage amongst a to a greater extent than thorough analysis of the parties’ submissions as well as of the issues at stake. Instead, nosotros own got ii real small rulings amongst real niggling detail. Just to give an of import representative – inwards both cases the French as well as the Belgian governments sided amongst the claimants, hence drawing a real of import conceptual bound to the regulation of laïcité which is justified, inwards this view, because of the real nature of the State as well as its duty of neutrality, a duty which cannot live on extended to private parties (or if so exclusively exceptionally). This of import distinction is non discussed inwards the ruling, non are the views of the governments who would live on direct affected past times the rulings.

More importantly though, the fact that the arguments of the parties are non recalled has too to a greater extent than full general consequences: as it has been noted past times Bruno De Witte elsewhere, the fact that no hermeneutic choice is provided powerfulness give the impression that no hermeneutic choice is inwards fact possible, as if legal interpretation is only a thing of discovering the truthful hidden pregnant of a written text. This approach, non uncommon inwards civil police jurisdiction but to a greater extent than nuanced inwards constitutional cases, hides the fact that, especially inwards cases of constitutional significance, at that spot is to a greater extent than than ane legitimate interpretative path that could live on chosen, which too reverberate unlike policy alternatives. Interpretation as well as so is too a pick betwixt those unlike paths: a pick which is, of course, constrained past times the relevant legal organisation as well as ane that powerfulness live on to a greater extent than or less persuasive.  The failure to admit counter-arguments as well as so results inwards rulings, similar the ones hither at number as well as many others inwards sensitive areas, which are non exclusively potentially unhelpful, but too unopen the door to to a greater extent than effective scrutiny of the reasons that atomic number 82 the Court to follow a given interpretation.

In the same vein, the analysis of the discriminatory nature of these provisions is rather superficial. In particular, at that spot is no idea given to the fact that contractual clauses allegedly protecting a regulation of neutrality, powerfulness non exclusively own got a discriminatory effect against surely individuals, but powerfulness own got of import inter-sectional (or multiple) discriminatory effects. In other words, a dominion banning religious symbols powerfulness inwards fact too own got a to a greater extent than pronounced effect on people from a surely ethnic background or a surely gender. Equally disappointing, as well as inwards this writer’s sentiment legally flawed, is the approach taken inwards relation to the finding of the potentially indirectly discriminatory effects of the rules at issue. Here, the Court requires the national courts to create upwardly one's take heed whether the ‘apparently neutral obligation [(not to wearable religious symbols)] (…) results inwards fact inwards persons adhering to a particular faith or belief beingness seat at a particular disadvantage.” (para 34, emphasis added).

There are ii issues to live on noted here: outset of all, the Court remains soundless as to what type of prove of indirect discrimination is required, as well as past times whom. In discrimination cases, burden of proof is crucial. This is recognised past times the discrimination directives at European Union level, including Directive 2000/78 which provides that if the claimant shows direct or indirect discrimination, as well as so it is for the ‘respondent to essay that at that spot has been no breach of the regulation of non-discrimination’ (Article 10(1)). One would own got expected as well as so the Court of Justice to teach the national courtroom to necessitate the defendants to discharge this duty amongst a surely rigour, too past times way of statistical analysis of the effect of such policies on religious minorities. Yet, the Court does non fifty-fifty engage amongst this question.

Secondly, as well as non less important, the Court seems to imply that a dominion that discriminates all religious people would non live on problematic. For instance if, say, Muslims as well as Orthodox Jews were as discriminated against, whilst non-religious persons were unaffected, then, based on the dicta of the Court, at that spot would live on no discrimination. This interpretation seems restrictive as well as non supported past times the text of the directive (or the Charter) that refers to discrimination on grounds of faith inwards general. In whatsoever event, inwards discrimination cases it is crucial to position the comparator, as well as the Court fails to create so clearly as well as to back upwardly its pick amongst audio legal arguments. But, beside these real of import structural issues, the Achbita ruling raises other to a greater extent than technical as good as full general issues, as to the extent to which the Court’s interpretation powerfulness impact the Member States’ discretion to render to a greater extent than extensive protection that that provided for inwards the Directive.

Minimum harmonization as well as key rights

Directive 2000/78 is intended exclusively to laid minimum standards, so that Member United States can, if they so wish, render for a to a greater extent than extensive protection. Indeed many Member United States own got done so past times extending either the protected categories of people, or the plain of application of the legislation, or both. In theory then, the Achbita ruling should non live on seen as the terminal discussion inwards relation to the handling of religious people at work. After all, if Kingdom of Belgium or French Republic or whatsoever other province finds the ruling problematic, it tin only transcend legislation prohibiting private employers from requiring religious neutrality from its employees, unless of course of study a specific wearing clothing code is necessary to ensure the wellness as well as security of the worker or the public. Viewed inwards this way, as well as all the same the structural problems identified above, the ruling seems real sensible: it is agnostic, inwards that it does non impose either model on Member States, allowing hence a bird of variation inwards a real sensitive area, something which, as eloquently discussed inwards McCrea’s post, powerfulness non live on a bad thing. After all, this is the same path that has been taken past times the European Court of Human Rights.

However, things are slightly to a greater extent than complicated inwards the European Union context. In particular at that spot is nada inwards the ruling to betoken that the Directive sets exclusively minimum standards so that it would live on opened upwardly to those Member United States to become farther inwards protecting people belongings religious beliefs. And, to a greater extent than crucially, the Court, mirroring the sentiment of Advocate General Kokott, refers to the European Union Charter of Fundamental Rights when assessing the legitimacy of the justification seat forrad past times the employer. In particular, it finds that the business’s wishing to ‘project an picture of neutrality (…) relates to the liberty to comport a concern that is recognised inwards Article xvi of the Charter as well as is, inwards principle, legitimate’.

The reference to the Charter, which indirectly frames the enquiry as a clash of key rights, is of import because, inwards the European Union context, when the Charter applies it sets the key rights standard. In simpler damage this way that should a Member State wishing to render to a greater extent than extensive protection to ensure that employees are non discriminated on grounds of their religious belief, something that is allowed nether Directive 2000/78, it powerfulness live on prevented from doing so since, pursuant to the Achbita ruling, it would infringe the correct to comport a concern as protected past times the Charter. In this way, far from leaving the desired flexibility as well as discretion to the Member States, the Court sets the criterion – employers own got a key right, albeit amongst or so limitations, to bound the employees’ correct non to live on discriminated against. One powerfulness good inquire then, much as it has been remarked inwards relation to the Alemo Herron case, what is the dot of minimum harmonization directives if the upward discretion of the Member United States is so curtailed.

Conclusions

The Court of Justice did non own got an slow occupation inwards the Achbita case: it was pretty much a ‘damned if you lot do, damned if you lot don’t’ scenario. For sure, or so of us would own got liked the residual at number to live on tilted firmly inwards favour of religious minorities, especially given the growing prove of attacks as well as discrimination against, particularly, Muslim women. The Court chose a unlike path as well as that is, of course, inside its prerogatives. However, the way that path was trodden upon leaves many opened upwardly questions both inwards relation to the way the outcome was achieved, as well as to the many questions it overlooks. What is nearly troubling is the implication that the liberty of Member United States to render greater protection towards minorities may, inwards principle, live on constrained past times the Court’s interpretation of the liberty to comport a business.

Barnard & Peers: chapter 9, chapter 20

Photo credit: smallbusiness.co.uk

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