‘Forgive me, Father: A comparative analysis of how the European Court of Human Rights and Court of Justice of the European Union have approached the right to freedom of religion’
There are few principles more fundamental to a liberal democracy than the right to freedom of religion (“Right”). Litigation of the right in Europe largely relates to the freedom to manifest or express a belief; the forum externum.[1] Far fewer cases have been based on the forum internum; the holding of a belief or thought.[2]
In this article, the general protections, approaches and limitations of the ECtHR and the Court of Justice of the European Union (“CJEU”) in the context of the “Right” will be outlined. The article will then turn to contrasting the two courts’ interpretations of the “Right” in the context of workplaces. Finally, there will be a focus on religious “neutrality” and the approaches of both courts to beliefs.
A number of elements of the ECHR relate to freedom of religion, including Article 14 and Article 2 of the First Protocol. However, Article 9 ECHR is the most relevant. The “Right” is limited by Article 9(2), which requires that a restriction be prescribed by law, be necessary in a democratic society and has a legitimate aim. The Court has interpreted the term “belief” under Article 9 as something that has ‘a certain level of cogency, seriousness, cohesion and importance’.[3]When it comes to “manifestation” of a belief, an act ‘must be intimately linked to the religion or belief.’[4]
The ECtHR gives a wide margin of appreciation to States in the context of freedom of religion. The margin of appreciation indicates the ECtHR’s ‘manifest reluctance’ to substantially engage with how States deal with the “Right”.[5]The wide margin has not helped to make Article 9 ‘effective and practical’.[6] For example, the ECtHR found against the second applicant nurse in Eweida v UK (“Eweida”) who was not allowed to wear a Christian cross because of health and safety considerations in the hospital ward on which she was working.[7] The ECtHR did not meaningfully assess the validity of the health and safety concerns and instead noted that there was a ‘wide margin of appreciation’ in such areas.[8] Health and safety risks successfully justified the restriction even though it is hard to envisage a substantial risk being posed by a simple cross worn securely.
There is no similar pattern of a wide margin of appreciation afforded by the CJEU. This may be due to the limited case law in this area. The CJEU has only relatively recently acquired competence in this area through CFREU on the Fundamental Rights of the European Union (“CFREU”). The inexperience of the CJEU in this sphere may be a danger.[9]Thus far, ECtHR cases have significantly influenced the CJEU’s interpretation of the “Right”.[10] For example, the CJEU defines “belief” in the same way as the ECtHR.[11] Additionally, ECtHR limitations on the “Right” inform the CJEU’s limitations.[12] Like the ECHR, the “Right” stems from a number of Articles in the CFREU, including Articles 7, 11, 12, 20 and 21. The main provision relating to the “Right” is Article 10 of the CFREU, which overlaps with Article 9 ECHR.[13]
There are, however, emerging differences between the two courts. For instance, the CJEU has not emphasised that the right to hold a belief is superior to the right to manifest a belief,[14] as the ECtHR has.[15] Unlike the ECtHR with Article 9, the CJEU encounters conflicts with other elements of the CFREU when interpreting Article 10, such as Article 16.[16] The CJEU has also expanded the circumstances in which the “Right” can be interpreted. In Bundesrepublik Deutschland v Y and Z,[17] the CJEU interpreted freedom of religion in the context of deportations.
The CJEU only gained competency in the area of freedom of religion relatively recently. It is gaining experience as more cases are brought relating to the CFREU. Approximately one in ten cases now reference the CFREU.[18] As more cases are heard, the CJEU’s interpretation of the “Right” will become more comprehensive.
The two courts’ approaches to the “Right” in the workplace are interesting. In Eweida,[19] the first applicant was not allowed to wear a Christian cross in order to protect the corporate image of her employer. The ECtHR held that her Article 9 right was infringed. Projecting a certain corporate image inter alia was not sufficient to restrict religious expression. The CJEU took a more conservative approach in Achbita v G4S Secure Solutions NV (“Achbita”).[20] There, the Muslim applicant was dismissed because three years into her job she insisted on wearing a headscarf contrary to an unwritten policy in the workplace ‘to dress neutrally’ which was subsequently formalised.[21] In its response to the preliminary reference, the CJEU found no issue with the applicant’s dismissal or the general ban on wearing religious symbols. An employer’s desire to display a “neutral” image to customers is protected by the Article 16 CFREU right to freedom to conduct business.[22] The CJEU’s and ECtHR’s interpretation of the “Right” in this context are substantially different. While the CJEU gave significant weight to the argument of maintaining a “neutral” corporate image, the ECtHR did not.[23] The ECtHR concluded that the domestic courts afforded the corporate image argument too much weight.[24]
The conservative interpretation of the CJEU is somewhat surprising because the “Right” technically has greater protection in the CJEU sphere. For example, the Council Directive 2000/78/EC (“Directive”) strengthens protection of religious freedom by prohibiting discrimination in the workplace.[25] The preliminary ruling in Achbita referenced above does not indicate that the CJEU favours expression of religion in its interpretation of the “Right”, but other rulings do. The applicant Muslim woman in Bougnaoui v Micropole SA (“Bougnaoui”) was told that wearing a headscarf when working may be problematic, particularly when interacting with customers.[26] She had worn a headscarf at the time she was hired, unlike the applicant in Achbita who started wearing a headscarf three years into her job. The CJEU’s response to the preliminary reference in Bougnaoui was more consistent with ECtHR interpretation of the “Right” than the preliminary ruling in Achbita. The CJEU indicated that the dismissal was direct discrimination because it was not based on breaking a general rule, like that in Achbita. The general policy that applied to all employees in Achbita was a form of indirect discrimination permitted by the Directive.[27] The dismissal in Bougnaoui was based on the individual headscarf itself. The CJEU interpreted the “Right” in favour of the individual, emphasising that only in limited circumstances can a religious characteristic ‘constitute a genuine and determining occupational requirement’ justifying dismissal.[28] The CJEU’s decision in Bougnaoui is more consistent with the ECtHR’s approach than Achbita.
The ECtHR’s interpretation of the “Right” has been flawed when approaching beliefs. In the cases of Valsamis v Greece and Efstratiou v Greece,[29] second level students who were pacifist Jehovah’s witnesses were punished because they did not want to take part in school parades commemorating the 1940 war between Greece and Italy. The ECtHR found no violation of Article 9 because inter alia the ECtHR thought the parades were not of an overtly military nature and therefore could not offend the applicants.[30] Yet again in these cases,[31] the ECtHR substituted its beliefs for those of the applicants.[32]
The CJEU did not apply its opinion of a belief in Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen v Vlaams Gewest.[33] At issue, there was a policy that any slaughterhouse killing animals for the Muslim Feast of Sacrifice without prior stunning had to receive authorisation. In indicating that the limitation did not violate freedom of religion, the CJEU mentioned the debate within the Muslim community about whether slaughtering without stunning is an absolute requirement.[34] The Court could have commented on whether the belief was “reasonable” in its view, but it did not: ‘The existence of possible theological differences on that subject cannot in itself invalidate the classification as a ‘religious rite’ of the practice of ritual slaughter’.[35] Unlike the ECtHR, the CJEU respected the belief of the Muslims involved rather than passing an opinion on the belief itself.
The interpretation by both courts of the “Right” differ at points, including in cases relating to workplaces and in how the courts approach beliefs. There are some similarities though, such as on the question of “neutrality”.
The ECtHR has narrowly equated neutrality to secularism,[36] particularly in the context of education.[37] The ECtHR has indicated that the best way to achieve neutrality is to keep religion absent from the school setting.[38] This has the effect of restricting the right to freedom of religion by not allowing people to wear religious symbols, for example. An alternative approach is to foster a tolerant, diverse environment by enabling individuals to express themselves in the spirit of true freedom. The ECtHR endorsed this concept of neutrality through pluralism in Lautsi v Italy (“Lautsi”).[39] The number of these decisions pale in comparison to those which support secular neutrality. The CJEU took a similar approach to neutrality in the workplace by essentially equating neutrality to secularism.[40]
The CJEU seems to be following the ECtHR’s lead when it comes to “neutrality”. It would be better to strive for neutrality by fostering diversity of expression of thought and religion in the 46 High Contracting Parties. It may beyond the bounds of the courts to take such a bold move. Such an absolutist approach may unduly interfere with states likes France, Turkey or Switzerland which have deep-rooted secular systems. However, the “Right” in the CFREU and the ECHR ultimately guarantees freedom of religion. A strictly secular system restricts the freedom of individuals to express religion. In that same vein, the decision of the Grand Chamber of the ECtHR in Lautsi referenced above is welcome. The reasoning, however, may be somewhat flawed. The ECtHR held that having a crucifix on the wall of a classroom did not violate the applicants’ freedom of religion because it is essentially 'a passive symbol'.[41] The ECtHR should be less concerned with how discreet a symbol is. What matters is how meaningful a symbol is to an individual in expressing religion or belief. The “Right” covers expression, not discretion.
The right to freedom of religion is controversial. The ECtHR has been determining cases in this area for decades. The CJEU’s recently gained competence means that it does not have much experience.
The interpretation by the ECtHR of the “Right” is marred by a wide margin of appreciation. This has sometimes led to inconsistent interpretation and the “Right” not being fully effective. It is too early to determine whether the CJEU has the same issue. Thus far, the case law of the CJEU and the ECtHR relating to freedom of religion does not reveal substantial differences in approaches between the two.[42] The two courts share the same definition of “belief”,[43] have similar limitations of the “Right”,[44] and share a narrow interpretation of “neutrality”. The CJEU is forging its own path in some respects.[45] It has interpreted the “Right” in innovative ways, such as in the realm of deportations.[46] Additionally, the CJEU has been more deferential to business when it comes to restricting the “Right” to project a neutral corporate image.[47] Finally, the CJEU does not appear to be following the ECtHR’s substitution of what it believes to be reasonable in a case.[48]
There are challenges, differences and ‘perhaps even some dangers’ presented by the CJEU’s newfound competence in relation to the “Right”,[49] including its lack of experience in the field.[50] All things considered, Europe is better off having the input of the CJEU on matters of freedom of religion. While the reasoning of both courts concerning the “Right” can be criticised, both courts recognise and seek to protect the “Right”. This is valuable. Even if the “Right” can be restricted, it cannot be obliterated.
[1] Javier Martínez-Torrón, ‘The (Un)protection of Individual Religious Identity in the Strasbourg Case Law’ (2012) 1(2) Oxford Journal of Law and Religion 363, 366
[2] ibid
[3] Eweida v UK App no 48420/10 (ECtHR, 27 May 2013), para 81
[4] ibid, para 82
[5] Ann Power-Forde, ‘Freedom of Religion and ‘Reasonable Accommodation’ in the Case Law of the European Court of Human Rights’ (2016) 5 Oxford Journal of Law and Religion 575, 577
[6] Power-Forde (n 5) 602
[7] Eweida v UK (n 3)
[8] ibid, para 99
[9] Síofra O’Leary, ‘A Tale of Two Cities: Fundamental Rights Protection in Strasbourg and Luxembourg’ (2018) 20 Cambridge Yearbook of European Legal Studies 3, 29
[10] Steve Peers, ‘The EU CFREU of Fundamental Rights: A Commentary’ (2nd edn, London Hart/Beck 2022) 10.04
[11] ibid 10.33
[12] ibid 10.04
[13] ibid
[14] ibid 10.41
[15] Martínez-Torrón (n 1) 370
[16] Case C-157/15 Achbita v G4S Secure Solutions NV [2017] ECR 203
[17] Joined Cases C-71/11 and C-99/11 [2012] ECR 518, para 79
[18] O’Leary (n 9) 5
[19] Eweida v UK (n 3)
[20] Achbita v G4S (n 16)
[21] Ibid, para 30
[22] Ibid, para 38
[23] Saïla Ouald-Chaib and Valeska David, ‘EUROPEAN COURT OF JUSTICE KEEPS THE DOOR TO RELIGIOUS DISCRIMINATION IN THE PRIVATE WORKPLACE OPENED. THE EUROPEAN COURT OF HUMAN RIGHTS COULD CLOSE IT.’ (Strasbourg Observers, 27 March 2017) < https://strasbourgobservers.com/2017/03/27/european-court-of-justice-keeps-the-door-to-religious-discrimination-in-the-private-workplace-opened-the-european-court-of-human-rights-could-close-it/> accessed 6 April 2022
[24] Eweida v UK (n 3), para 94
[25] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16-22 (hereinafter “Directive”)
[26] Case C-188/15 Bougnaoui v Micropole SA [2017] ECR 204
[27] Directive (n 25), Article 2(2)(b)(i)
[28] Bougnaoui v Micropole (n 26), para 38
[29] Efstratiou v Greece App no 24095/94 (ECtHR, 18 December 1996) and Valsamis v Greece App no 21787/93 (ECtHR, 18 December 1996)
[30] Valsamis v Greece App no 21787/93 (ECtHR, 18 December 1996), para 31
[31] Power-Forde (n 5) 590
[32] David Harris et al, Law of the European Convention on Human Rights (4th edn, Oxford University Press 2018)
582
[33] Case C-426/16 Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen v Vlaams Gewest [2018] ECR 335
[34] ibid, para 50
[35] ibid, para 51
[36] Power-Forde (n 5) 602
[37] Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001) and Leyla Şahin v Turkey App no 44774/98 (ECtHR, 10 November 2005)
[38] Martínez-Torrón (n 1) 378
[39] App Number 30814/06 (ECtHR, 18 March 2011), para 74
[40] Achbita v G4S (n 16), para 38
[41] Lautsi v Italy (n 39), para 72
[42] O’Leary (n 9) 28
[43] Steve Peers, ‘The EU CFREU of Fundamental Rights: A Commentary’ (2nd edn, London Hart/Beck 2022) 10.33
[44] ibid 10.04
[45] Peers (n 10) 10.04
[46] Bundesrepublik v Y and Z (n 17), para 79
[47] Achbita v G4S (n 16)
[48] LMIOPA v VG (n 33)
[49] O’Leary (n 9) 28
[50] ibid 29