European anti-discrimination law is an important component of the European social pillar. While several directives on equality between men and women were adopted before 2000, it was Article 19 of the Treaty on the Functioning of the European Union ( hereafter „TFEU”), inserted by the Treaty of Amsterdam, that provided the impetus for the „new generation” of directives adopted around the turn of the millennium.
Article 19 TFEU states that the European Union „may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. This provision marks two important changes. First, the issue of equality and non-discrimination is no longer limited to nationality and gender, but the European Union has jurisdiction over several other grounds of discrimination, including „religion and belief”. Second, EU anti-discrimination law emancipates itself from the sole economic objective of creating a free market to protect the dignity and fundamental rights of citizens.
Based on Article 19, the European Union adopted Directive 2000/78/EC, which aims „to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation” (Article 1). Several Member States, such as Belgium, France, the Netherlands and Poland, have included other grounds of discrimination in their national laws, but the minimum requirement is to cover the grounds enunciated in the Directive.
As with other grounds of discrimination, such as disability (see Sonia Chacón Navas v Eurest Colectividades SA), the interpretation of the expression „religion or belief” has a decisive impact on the protection of workers against discrimination: the broader the notion is, the more people can invoke the protection of EU anti-discrimination law. To date, the European Court of Justice (hereafter „ECJ”) has handed down six judgments interpretating Directive 2000/78/EC and discrimination on the grounds of „religion or belief”.
The Court’s reliance on international law and constitutional traditions of Member States
Since Directive 2000/78/EC, like many other legal instruments, does not define the concept of „religion”, the ECJ notes that its first recital refers to the European Convention on Human Rights and to the constitutional traditions of the Member States. Therefore, the Court states that the concept of religion includes „both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public”. In so doing, the ECJ follows the line initiated by the European Court of Human Rights (hereafter „ECtHR”) in Kokkinakis v Greece.
In WABE v MH Müller Handels GmbH, the ECJ clarified the difference between religion and belief. It stated that „the terms 'religion’ and 'belief’ must be analysed as two facets of the same single ground of discrimination. As is apparent from Article 21 of the Charter, the ground of discrimination based on religion or belief is to be distinguished from the ground based on 'political or any other opinion’ and therefore covers both religious beliefs and philosophical or spiritual beliefs.”
Conceptual uncertainty of „religion of belief”
Furthermore, LF v SCRL reveals that the Directive „covers only the grounds which are exhaustively listed in Article 1 thereof, so that that directive does not cover political or trade union belief; nor does it cover artistic, sporting, aesthetic or other beliefs or preferences”. This interpretation differs slightly from that of the ECtHR. Indeed, the Strasbourg Court has established a distinction between beliefs and opinions, with a higher protection granted to the former. However, it has not explicitly excluded political or trade union convictions from this qualification. According to Campbell and Cosans v The United Kingdom, the criterion is that views must „attain a certain level of cogency, seriousness, cohesion and importance”.
Moreover, the radical separation between political opinions and „religion or belief” does not seem workable. Indeed, it can sometimes be difficult to distinguish between political and religious or philosophical beliefs. For example, it is not easy to decide whether opposition to abortion is a political opinion or a religious or philosophical belief (see Vickers, p. 30). The same reasoning applies to liberalism, socialism or communism, which are at the same time philosophies and political opinions. Pacifism is also a belief according to the ECtHR. Even vegetarianism, based on Buddhism, has been classified as a belief by the ECtHR, but it is uncertain whether the ECJ would come to the same conclusion. One may also wonder whether the defence of gay rights – for example, the advocacy of adoption by gay couples – would be qualified by the ECJ as an opinion or a belief.
Although the ECJ seems to make a clear distinction between „religion or belief” on the one hand and „opinions” on the other hand, it regularly uses the expression „political, philosophical or religious beliefs” when assessing the consistency of a company’s neutrality policy. This raises two problems. Firstly, it is conceptually nonsensical to use the same word for different realities. Perhaps the correct expression should have been „political opinions and philosophical or religious beliefs”. Secondly, one may wonder why the Court takes into account the prohibition of political beliefs if they are not covered by the Directive. This leads to the situation where the prohibition of political signs is necessary for a neutrality policy to be enforceable, but political signs do not receive protection if they are the only ones prohibited. Yet, the discussions leading up to the adoption of the Treaty of Amsterdam at least indicate a willingness to broaden the scope of the „religion or belief” ground of discrimination, as more restrictive formulations such as „religious beliefs” had been considered.
Consequences not limited to the protection of workers
The ECJ’s interpretation has consequences for other issues, namely for ideologically oriented companies or, in other words, for „churches and other public or private organisations the ethos of which is based on religion or belief”. Article 4, § 2, of Directive 2000/78/EC provides an exception to the non-discrimination rule for such organisations if they wish to select their employees on the basis of their religion or belief. They may also impose a heightened duty of loyalty on their employees. Academic literature includes organisations such as schools, hospitals, kindergartens, political parties, trade unions or some media in this concept. However, the interpretation of the concept of „religion or belief” does not cover all these organisations. One problem is that some Member States have included other grounds of discrimination in their law without taking into account the limited scope of Article 4, § 2.
For example, while Belgian law has extended the protection against discrimination to political opinions, the special exemption for ideologically oriented companies only covers discrimination on the basis of religion or belief. In other words, a religious hospital can rely on this exception when hiring a doctor – as for example in the case IR v JQ – but a political party cannot invoke it when hiring a spokesperson. Instead, it must rely on the general justification system of the law, which does not expressly provide for a heightened duty of loyalty.
In summary, the interpretation retained by the ECJ appears to be a restrictive one. However, the Court could have taken a different stance which would have led to the protection of more workers. It is therefore up to the Member States to ensure that their anti-discrimination laws provide sufficient protection, not only for religious or philosophical beliefs, but also for political and trade union beliefs, as well as for any belief that is strong enough.
Courtesy of: Romain Mertens, Researcher and teaching assistant, Université de Namur, Belgium.