In March of this year (23/3), Solon Solomon noted here on EJIL:Talk!, that the recent judgment rendered by the European Court of Justice (ECJ) in G4S v Achbita, seems to have given private companies in the EU the green light to indirectly discriminate against certain religious minorities, so long as they put in place general bans on religious attributes that are visible to external customers. While that commentary offered interesting and important reflections on the legal and socio-political context of the ECJ judgment and similar ones previously established by the European Court of Human Rights (ECoHR), this analysis brings forth a somewhat different critique, focusing more closely on the (lack of) motivations behind the Court’s conclusions.
First, to be clear, that indirect discrimination can sometimes be excused is neither what is new nor controversial about the case. According to the Council Directive (2000/78/EC) cited in the Court’s judgment, as well as the applicable international and European human rights law, indirect discrimination can be justified, but only on the condition of a “legitimate aim”. That aim must then (i) be prescribed by law, (ii) respect the essence of the fundamental rights and freedoms of others, and may (iii) only be pursued through measures that are appropriate, necessary and proportionate to achieve the aim (see art. 18 para 3 of the ICCPR; art. 9 para 2 of the ECHR; art. 52 of the EU Charter; Neptune Distribution SNC v. Ministre de l’Économie et des Finances).
Thus what is new and controversial is the Court’s interpretation of what may constitute a legitimate aim with regard to the imposition of limits to the freedom of religion. According to the Court’s decision, the:
“desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate” (para 37).
This, the Court declared, relates to the freedom to conduct a business, which is recognized in article 16 of the EU Charter. The Court then proceeded with its assessment of whether the general ban on visible religious attributes was appropriate and necessary to uphold the supposedly legitimate aim of neutrality. It is these sections of the judgment that expose the Court’s apparent failure to account for the principles governing the rights and conflicting interests at stake.
Fait Accompli: The Right of Businesses to be “Neutral”
Primarily, the Court did not explain why neutrality “must be considered legitimate” so that it may justify indirect discrimination. As Solomon accurately noted in his commentary, the “neutrality principle” does not appear in any section of the laws applicable to the case. A favorable reading of the judgment would however point out that the Court connected the “neutrality principle” to the freedom to conduct a business, which is provided by law. But then, this raises several questions.
First of all, if the legitimacy of neutrality rests on the freedom to conduct a business, it is the content of, and impact on, the latter principle (which is the one provided by law) that must be considered in cases where that principle supposedly conflicts with other fundamental rights (art. 52 EU Charter). Hence, because the Court failed to specify the scope of that right, in respect of the circumstances of the case, it also failed to fulfill its duty to clarify the necessity of the “neutrality principle” in upholding the freedom to conduct a business, which is a crucial condition for it to be considered a “legitimate aim”.
Furthermore, in previous case law, the Court has repeatedly recognized that the freedom to conduct a business is not an absolute right. Fundamental human rights and other laws and regulations obviously set some limits to the discretion of private businesses, and thus their freedom to conduct a business in any manner they may wish. According to the established opinion of the Court, there is therefore the need to strike a balance between the fundamental rights prescribed by the Charter (see e.g. Deutsches Weintor eG v. Land Rheinland-Pfalz; Denise McDonagh v. Ryanair Ltd; Neptune Distribution SNC v. Ministre de l’Économie et des Finances). The relevant case law demonstrates that clearly defined restrictions have been imposed on the freedom to conduct a business, motivated, in part, by the argument that its “actual content”, “essence” and “substance” has remained unaffected.
With regard to the conflicting rights and interests in G4S v. Achbita, the Court recognized that the freedom of religion includes the manifestation of religious faith in public (para 28). However, it did not take into account the effect of its judgment on the essence of that freedom, as required by the EU Charter (art. 52). Nor did it provide deliberation regarding the essence of the freedom to conduct a business, and the implications of a reverse outcome in favor of the freedom of religion.
Because, in the opinion of the Court, the freedom to conduct a business is not absolute, and because its essence has not been determined, it follows that the significance of the ruling in terms of providing guidance is insipid by the extent in which it rests on the notion of the principle of “religious neutrality” as a self-evidently legitimate aim. Moreover, this presumption is not supported by the case law of the ECoHR that was invoked by the Court (para 39).
Indeed, in Eweida and Others v. United Kingdom, the ECoHR overturned the restrictions imposed by the British national judges partly because… “There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image” (para 94).
The consideration of a corporate brand or image seems to allude to the competitiveness of a corporation, which is generally conceived of as the basic requirement to conduct (and sustain) a business. Following this definition, the ECJ would then need to consider whether a general ban on religious attributes would be necessary and proportionate to sustain the company’s ability to conduct its business.
But without first providing a clear definition of the essence of the freedom to conduct a business, applicable to the case before the Court, it is impossible to assess how the freedom of religion may have impeded that right. It then follows that it is also impossible to assess whether a certain restriction of the latter would be necessary and proportionate to protect the former.
Instead of providing deliberation on these matters, which would be crucial in order to render solid guidance to the national courts of the EU, the implication of the ECJ judgment is that the principle of neutrality was elevated as a legitimate aim in and of itself, rather than as a means to protect the freedom to conduct a business per se. Thus, in its judgment, the Court failed to indicate how the condition for a restrictive measure to be provided for by law was satisfied, given that the legitimacy of the neutrality principle was either treated as a fait accompli or rested on fallacious invocation of case law.
In sum, the Court failed to adequately address the three-part conditions for a restrictive measure on the freedom of religion to be lawful, since it did not offer any substantial explanation as to how the limitation (i) is prescribed by law, (ii) respects the essence of the fundamental rights and freedoms of others, and (iii) were appropriate, necessary and proportionate to achieve the legitimate aim. This failure is particularly evident when the judgment is considered in the light of the requirement of international human rights law to interpret the conditions for limiting the freedom of religion in a “strict manner” (read para 8 of General Comment 22, HRC in conjunction with art. 53 of the EU Charter).