September 07, 2016
By Eva Brems
The Kokott-Sharpston Standoff at the Threshold to the Summer of Shame
In France and Belgium, the summer of 2016 will be remembered as the summer of the burkini debates. Numerous French municipalities banned Islamic swimgear that covers the body, and in Belgium, majority politicians called for a similar ‘burkini’ ban. The world watched with disbelief as French police chased Muslim women wearing body-covering swimwear from public beaches, or even forced them to undress in public. After the Council of State suspended such a measure in one municipality, the French Prime Minister did not hesitate to publicly criticise the highest administrative court. For those committed to combating minority discrimination, this debate was a turning point, as many proponents of a ban no longer bothered to dress it up as a measure protecting values such as neutrality, the protection of vulnerable people, gender equality or even the notoriously vague concept of ‘living together’. Many of the participants in the burkini debates felt no longer inhibited from publicly saying what it was really about for them: a dislike of Islam, and the desire not to be confronted with it. For Muslim women in both countries, this honesty about the underlying motives is probably all that distinguishes burkini bans from the bans on other types of female Islamic dress (mainly hijab and niqab bans) that they have been confronted with for decades. Yet for many observers who may not have reacted to such previous bans, the French burkini campaign was a step too far. The need for clear limits to admissible restrictions on Islamic dress has thus become keenly felt.
Shortly before the burkini row kicked off, two Advocate Generals of the European Court of Justice issued their opinions in two parallel cases of alleged headscarf discrimination. Both a Belgian and a French court asked the ECJ for guidance, through a preliminary ruling, on whether the dismissal of an employee by a private employer on grounds of her wearing an Islamic headscarf, against the employer’s dress policy, violates EU antidiscrimination law. The Opinions of AG Kokott in the Achbita case and of AG Sharpston in the Bougnaoui case reach opposite conclusions: for Kokott, there is no discrimination, for Sharpston there is. Underlying the difference in outcomes are numerous important differences in the interpretation of the Employment Equality Directive. These differences of interpretation, in turn, betray widely divergent views on the protection of the fundamental rights of minorities in Europe.
Given the strong similarity between the cases of Achbita and Bougnaoui, it is hard to imagine that the ECJ will follow the Opinions of both its AGs on this matter. The Luxembourg Court must therefore make a principled choice between two opposing approaches. After the above-described Summer of Shame, the stakes are even higher than before. Europe will be anxiously waiting to see whether or not the ECJ will take a first step towards halting the persecution of Muslim women on account of their dress.
Strasbourg Watchers turn to Luxembourg
This blog will publish a series of comments on the Opinions. In today’s post, I shall briefly introduce the facts of the two cases. This will be followed by three blogposts that will focus on different aspects of the legal reasoning used in the Opinions. These will be written by professors Lucy Vickers (Oxford Brookes University), Matthias Mahlmann (University of Zurich), and Isabelle Rorive & Emmanuelle Bribosia (Université Libre de Bruxelles). Two final blogposts will sketch the context in which the ECJ’s judgments will ‘land’ in Belgium. I shall describe the legal context characterized by ever-expanding headscarf bans, and Dr Saïla Ouald Chaib will provide a personal testimony of what it means for a highly qualified professional wearing a headscarf to live in such a context.
As a rule, the Strasbourg Observers blog is devoted to commenting on judgments of the European Court of Human Rights. Yet regular readers will agree that an excursion to Luxembourg is justified in this case. Indeed, with the cases of Achbita and Bougnaoui, a scholarly discussion that has been conducted for decades mainly in terms of the European Convention on Human Rights and the Strasbourg Court is being reframed in terms of the Employment Equality Directive, and therefore moves to Luxembourg for what may be its ultimate conclusion. This is a time when Strasbourg watchers who are interested in religious freedom and faith-based discrimination must turn their gaze to Luxembourg. The Strasbourg Court has disappointed many by failing to find violations of religious freedom in any of the numerous cases involving headscarf bans that have been brought before it, and even in the French ‘burqa ban’ case. Its reasoning, based on the ‘margin of appreciation’ doctrine, has been interpreted by some as a refusal of the Court to exercise human rights leadership in the thorny matter of the inclusion of Europe’s Muslim minorities. In the post-Opinion 2/13 era, the Achbita and Bougnaoui cases are an invitation for the ECJ judges to show that there is also another supranational European court with jurisdiction over fundamental rights, and that this court may choose to exercise leadership in matters in which the Strasbourg Court has opted for the bystander role.
Introducing Achbita and Bougnaoui
Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV
Samira Achbita was an employee of G4S, a company that is known mostly as a provider of security and guarding services. However, G4S also provides reception services. Ms Achbita joined G4S as a receptionist on 12 February 2003, under an employment contract of indefinite duration. In April 2006, she announced her intention to wear the headscarf, which she until that point had worn only outside of working hours, also at work. This was met with a negative reaction by her employer, who stated that her decision was at odds with the company’s neutrality policy. In June 2006, G4S incorporated into its employee code of conduct a prohibition on employees ‘from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them’. The company claims that the same rule applied before that point as an unwritten company rule. On 12 June 2006, Ms Achbita was dismissed on account of her firm intention to wear the headscarf at work. She challenged her dismissal in court, arguing both wrongful dismissal and infringement of the anti-discrimination law. The labour courts dismissed her claims, both in first instance and on appeal, in their judgments of 27 April 2010 and 23 December 2011, respectively. Ms Achbita then turned to the Court of Cassation, which referred the case to the ECJ for a preliminary ruling in a judgment of 9 March 2015.
Case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme v Micropole SA
Asma Bougnaoui had been employed by Micropole as a design engineer since 15 July 2008, after she completed a period of end-of-studies training at the same company. She was dismissed by letter of 22 June 2009. The letter referred to the comment of a client company for which Ms Bougnaoui had been sent to work by her employer in May 2008, stating that her ‘veil’ had embarrassed a number of its employees and that ‘there should be no veil next time’. At an interview in June 2009, prior to her dismissal, Ms Bougnaoui was asked to refrain from wearing her veil in the future, a request that she did not agree with. Her refusal to comply with this request was the ground for her dismissal. She challenged her dismissal in court, arguing discrimination on ground of religion. Yet, both at first instance and on appeal, she lost her case (judgments of 4 May 2011 and 18 April 2013, respectively). Just like Ms Achbita, Ms Bougnaoui then turned to the Court of Cassation, which issued a request for a preliminary ruling to the ECJ.
In addition to submissions by the parties, the relevant states and the European Commission, the Swedish government submitted written observations in the Bougnaoui case and the French government in the Achbita case. The UK government presented oral arguments in both the Achbita and the Bougnaoui cases.