ECJ headscarf series (4): The dark side of neutrality

By Emmanuelle Bribosia[1] and Isabelle Rorive[2], Université libre de Bruxelles

The Achbita and the Bougnaoui cases give a first opportunity to the European Court of Justice to address religious discrimination. Since the adoption of the anti-discrimination directives after the Amsterdam treaty, the Court ruled on a significant number of cases, mostly on discrimination based on age or gender, but also on sexual orientation, disability, race and ethnicity. Religion was not in the picture so far. As if national courts kept the issue for themselves, apart for a few cases making their way to the European Court of Human Rights.

A first opportunity that resembles a poisoned gift. Two high-profile cases, brought by the Supreme Courts of the judiciary (Cour de cassation) in Belgium and in France, which fall in ‘the Islamic veil conundrum’ that started in the late 1980s in both countries. Two countries where the principle of neutrality (or laïcité) is increasingly brandished like a flag with uncertain colours by strange bedfellows and not only as a key organizing principle of a democratic State attached to the Rule of law. Two countries severely hit by terrorist attacks made in the name of Islam and where social and political tensions are sour. And two Advocates General who have different views on some fundamental legal concepts of anti-discrimination law.

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ECJ headscarf series (3): The Everyday Troubles of Pluralism

By Matthias Mahlmann, University of Zürich

Differences and Common Ground

This is legal deliberation with an edge: the two Opinions of Advocate General Kokott in the case of Achbita (C-157/15) and of Advocate General Sharpston in the case of Bougnaoui (C-188/15) come to opposing results though dealing with cases that are, in many respects, very similar.

Whereas Advocate General Kokott regards a company rule that prohibits the wearing of any religious symbol or a symbol associated with some form of belief as a genuine determining occupational requirement that serves a legitimate aim and is proportionate, Advocate General Sharpston argues that there is no such justification.

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ECJ headscarf series (2): the role of choice; and the margin of appreciation

By Lucy Vickers, Oxford Brookes University

In this post, I focus on two issues of note regarding the divergent reasoning of the Advocates General. The first is the question of whether or not religion is immutable, and whether the answer to that question is helpful in determining the extent to which religion should be protected at work. The second is the use of ‘margin of appreciation’ reasoning, drawn from human rights case law on freedom of religion and belief, in the context of CJEU equality law.

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Headscarves in Luxembourg – A blog series on the contrasting Opinions of AG Kokott and AG Sharpston

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.

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Grand Chamber Judgment in Izzettin Doğan and Others v. Turkey: More Than a Typical Religious Discrimination Case

This guest post was written by Dr. Mine Yildirim (*)

On 26 April 2016, the Grand Chamber held, by 12 votes to 5, that there had been a violation of Article 9 ECHR, and, by 16 votes to 1, that there had been a violation of Article 14 taken in conjunction with Article 9 ECHR in the case of Izzettin Doğan and Others v. Turkey.

Relying on Article 9, taken alone and in conjunction with Article 14, the applicants complained that their right to manifest their religion had not been adequately protected in domestic law. It is important to note that their complaints are based both on their claims for public religious services and recognition of their cemevis (Alevi places of worship) as places of worship. They complained of the refusal of their requests seeking, among others, to obtain for the Alevi faith followers the same religious public service provided exclusively to the majority of citizens, who adhere to the Sunni branch of Islam. The applicants maintained that this refusal implied an assessment of their faith on the part of the national authorities, in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. They also contended that their request for the recognition of cemevis was refused. They further alleged that they had been the victims of discrimination on grounds of their religion, as they had received less favorable treatment than followers of the Sunni branch of Islam in a comparable situation, without any objective and reasonable justification.
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Face veils in Strasbourg (bis): the Belgian cases

By Eva Brems

In the Grand Chamber judgment of SAS v France (2014) the European Court of Human Rights held that France’s ban on face covering in public could be justified under article 9 ECHR as a proportionate measure for the aim of guaranteeing ‘le vivre ensemble’ (living together). Given the storm of protest that this judgment raised among human rights scholars and activists, it may be of interest to note that the second section of the Court recently communicated two applications against the Belgian face covering ban. Indeed, about one year after France adopted its ban, Belgium did the same. Belgium and France are the only two countries that have adopted a general ban on face covering in public (local or regional bans exist in the Netherlands, Spain, Italy and Switzerland). In Belgium, the nationwide ban was preceded by municipal bans, that continue to be enforced alongside the criminal ban.

While it is unlikely that the Court would overrule a recent and unanimous Grand Chamber judgment, it is not excluded that it might take this opportunity to explain and possibly nuance some of the statements it made in SAS.

The Human Rights Centre of Ghent University submitted a third party intervention in one of the Belgian cases.

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Ebrahimian v France: headscarf ban upheld for entire public sector

By Eva Brems

On 26 November, the Court added a new chapter to its ‘headscarf’ jurisprudence, upholding the non-renewal of a contract in a public hospital on the ground of the applicant’s refusal to take off her headscarf.

The case in brief

15 years ago, in December 2000, the applicant, who had been working for 15 months with a temporary contract as a social assistant in the psychiatric wing of a public hospital in the Paris area, was informed that her contract would not be renewed. This was a disciplinary measure as a result of her refusing to stop wearing an Islamic headscarf, which had given rise to complaints from both patients and colleagues. Continue reading