Case C‑148/22
OP
v
Commune d’Ans
(Request for a preliminary ruling from the tribunal du travail de Liège (Labour Court, Liège, Belgium))
Judgment of the Court (Grand Chamber) of 28 November 2023
(Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Establishing a general framework for equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Public sector – Terms of employment of a public administration prohibiting the visible wearing of any philosophical or religious sign in the workplace – Islamic headscarf – Requirement of neutrality in contacts with the public, hierarchical superiors and colleagues)
1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Scope – Employment and working conditions – Concept – Internal rule of a municipal authority prohibiting its staff from visibly wearing in the workplace any sign of beliefs – Included
(Council Directive 2000/78, Art. 3(1)(c))
(see paragraph 23)
2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition on discrimination based on religion or belief – Internal rule of a municipal authority prohibiting its staff, in a general and indiscriminate manner, from visibly wearing in the workplace any sign of beliefs – No direct discrimination – Existence of possible indirect discrimination – Justification based on the pursuit of a legitimate aim – Desire of the employer to pursue a policy of exclusive neutrality in the workplace – Observance of the principle of proportionality – Verification by the national court
(Charter of Fundamental Rights of the European Union, Arts 10 and 21; Council Directive 2000/78, Art. 2(2))
(see paragraphs 25, 27-30, 32-41, operative part)
Résumé
OP has held, since 11 October 2016, the post of ‘head of office’ in the municipality of Ans (Belgium), a function which she performs primarily without being in contact with users of public service.
On 8 February 2021, she requested authorisation to wear an Islamic headscarf in her workplace. That request was provisionally rejected by her employer.
Subsequently, the municipal board amended the terms of employment of the municipality of Ans by inserting a requirement of ‘exclusive neutrality’ in the workplace, understood as prohibiting all its workers from wearing, in that workplace, any visible sign that might reveal their beliefs – religious or philosophical in particular – whether or not they were in contact with the public.
Taking the view that she had been discriminated against because of her religion, OP brought an action for an injunction before the tribunal du travail de Liège (Labour Court, Liège, Belgium).
According to that court, the prohibition on wearing the Islamic headscarf, imposed on OP by her employer pursuant to the terms of employment, creates a difference in treatment constituting discrimination, within the meaning of Directive 2000/78. (1) In view of the doubts that it has as to the compatibility with that directive of the provision of the terms of employment at issue, the said court decided to refer questions to the Court of Justice for a preliminary ruling.
The Court, sitting as the Grand Chamber, rules 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 an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of its context and taking into account the various rights and interests at stake.
Findings of the Court
After having rejected, on the basis of the factual elements put forward by the referring court, the possibility of direct discrimination, the Court recalls that an internal rule decreed by an employer, such as that at issue in the main proceedings, may constitute a difference of treatment indirectly based on religion or belief, within the meaning of Article 2(2)(b) of Directive 2000/78, if it is established that the apparently neutral obligation contained in that rule results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.
Such a difference in treatment does not, however, amount to indirect discrimination if, in accordance with Article 2(2)(b)(i) of Directive 2000/78, it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.
In the first place, according to the Court, a provision of a public administration’s terms of employment, such as that at issue in the present case, may be regarded as pursuing a legitimate aim within the meaning of that provision.
In the absence of consensus at EU level, each Member State, including, where appropriate, its infra-State bodies, in compliance with the powers conferred on them, must be afforded a margin of discretion in designing the neutrality of the public service which it intends to promote in the workplace. That margin of discretion allows the Member States and those infra-State bodies to take account of their own specific context, having regard to the diversity of their approaches as to the place they intend to accord, within their respective systems, to religion and philosophical beliefs in the public sector. However, it is for the national and EU courts to verify whether the national, regional or local measures taken were justified in principle and proportionate.
In the second place, the Court states that the provision of the terms of employment must be appropriate for the purpose of ensuring that the aim pursued by the employer is properly applied. In that regard, it will be for the referring court, first of all, to determine whether the municipality of Ans pursues the objective of ‘exclusive neutrality’ in a genuinely consistent and systematic manner with respect to all employees.
Next, the Court states that the legitimate objective of ensuring, through a policy of ‘exclusive neutrality’, an entirely neutral administrative environment can be effectively pursued only if no visible manifestation of beliefs – philosophical or religious in particular – is allowed when employees are in contact with users of the public service or with other employees. The wearing of any sign, even a small-sized one, undermines the ability of that measure to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy.
Finally, it will be for the referring court, in the light of all the factors characteristic of the context in which that rule was adopted, to weigh up the interests at stake, taking into account, on the one hand, the fundamental rights and principles at issue, and, on the other hand, the principle of neutrality seeking to guarantee the users of its services and the members of the public administration’s staff an administrative environment devoid of visible manifestations of beliefs, philosophical or religious in particular.