The Freedom Blog

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By Laurence Wilkinson

Fundamental freedoms underpin democracies, which means that the EU should be safeguarding fundamental rights across the Union. Indeed, strengthening the rights of individuals within the EU was the stated intention behind making the EU Charter of Fundamental Rights (‘EU Charter’) legally binding on the EU institutions and national governments. However, two troubling decisions concerning the right to religious freedom handed down by the Court of Justice of the European Union (‘CJEU’) might well be seen as across the bow of the European Court of Human Rights (‘ECHR’) in Strasbourg.

At issue in Luxembourg, the seat of the CJEU, was the cases of two employees who were dismissed for wearing Islamic headscarves at work. The cases were significant because they represented a collision of worlds – the EU’s anti-discrimination Directive 2000/78 on the one hand, and the right to freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights on the other. While EU law is the domain of the CJEU in Luxembourg, interpretation of the European Convention is the responsibility of the ECHR in Strasbourg.

Of course, the ECHR’s remit goes far beyond the EU’s membership to the 47 Member States of the Council of Europe – including (among others) Russia, Ukraine and Azerbaijan. The ECHR, based in Strasbourg, is the custodian and arbiter of the European Convention on Human Rights, and is called on to determine whether States have violated the Convention in specific circumstances. Interestingly, its judgments are only binding on the Member State involved, although they should be considered indicative of what the ECHR would rule if the same facts came before the court again.

The CJEU on the other hand is charged with interpreting EU law to ensure that it is applied consistently in all 28 EU Member States, and settles any legal disputes that arise between national governments and EU institutions. Unlike the ECHR, the CJEU’s decisions are binding on all Member States. And while the European Convention on Human Rights isn’t EU law, with the introduction of the there is no longer a clear division of competence when it comes to human rights protection. . This is because the EU Charter contains many of the same rights as the European Convention, as well as enumerating other rights.

This meant that when the CJEU was asked to rule on whether the dismissal of employees for wearing an Islamic headscarf could be considered discriminatory, not only did it have to consider the EU law in question, but it also considered the application of Article 9 (Freedom of Thought, Conscience and Religion) of the European Convention of Human Rights and the associated ECHR judgments. In other words, it was a court interpreting a treaty that contained language from another treaty, which had been interpreted by another court. And when you consider that the EU was (and potentially still is) seeking to accede to the the European Convention on Human Rights, the various layers in the film ‘Inception’ seem relatively simple by comparison.

The CJEU held in both cases that, while the employees’ dismissal for wearing Islamic headscarves could be considered indirect discrimination, it could be justified on the basis that the employer was seeking to achieve ‘neutrality’ in its relations with its customers. Ultimately though, the CJEU essentially side-stepped the substantive question by requiring the domestic court to make a finding on whether the measures taken by the employer were ‘appropriate and necessary.’

However, what was made abundantly clear was that the CJEU was not afraid to delve into ECHR territory, interpret case law on the European Convention on Human Rights, and make rulings that bind all EU Member States. While in this instance there was no direct conflict with what the ECHR has previously held, the outstanding question is what would happen if the ECHR disagrees with a CJEU ruling? Would the ECHR be able to correct an erroneous decision of the CJEU, notwithstanding the fact that the CJEU decision will already bind the Member States of the EU?

Furthermore, it is disappointing that the CJEU seemed to prioritize the ability of an employer to appear ‘neutral’ over the individual fundamental rights of the employees. While the CJEU did state that measures introduced by employers in this regard should be ‘appropriate and necessary’, it appeared to set a very low threshold for what may justify a restriction on a fundamental freedom. This ambiguity could lead to a weakening of the protection of individuals’ rights in practice where a need for ‘neutrality’ is raised as a justification. This would appear to be at odds with the long-held European goal of creating a diverse and tolerant society, and could significantly hamper the ability of citizens to publically manifest their religious beliefs.

The CJEU clearly believes that it has the competence to interpret and resolve questions that raise issues which have long been considered by the European Court of Human Rights. It remains to be seen whether the ECHR would try to reassert its supremacy where it determines that the CJEU has failed to properly protect fundamental rights. One would hope that, over time, these two courts will be able to work together seamlessly to safeguard fundamental rights within the EU and further afield. But for now, with no obvious hierarchy between the two courts, we may have a turf war on our hands.

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