Two Opinions on discrimination based on religion: Opinion of AG Kokott in C-157/15, Achbita and Opinion of AG Sharpston in C-188/15, Bougnaoui (by C. Warin)
September 6, 2016
The Achbita and Bougnaoui cases, while raising overlapping questions, have led to diverging Opinions, issued just two weeks apart by Advocates General Kokott and Sharpston. Both cases are references for preliminary ruling on the interpretation of the prohibition on discrimination in the workplace, which reflects the fundamental right enshrined at Article 21 of the Charter of Fundamental Rights (“CFR”) and is detailed in Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (“the Directive”).
Ms Achbita had been working as a receptionist under an employment contract of indefinite duration for the security company G4S. After three years on the job, she announced that she would wear her Islamic headscarf to work. This violated G4S’s internal ban on wearing any visible signs of political, philosophical or religious beliefs. She was dismissed on this basis and went to court to claim damages against her former employer. The case reached the Belgian Court of Cassation which lodged a reference for preliminary ruling with the Court of Justice (“CJEU”), asking whether the ban constituted direct discrimination in the meaning of Article 2 of the Directive.
A similar situation arose in France. Ms Bougnaoui had been working as a design engineer for the company Micropole, in contact with clients who complained to her superiors about her wearing an Islamic veil. This led to her dismissal. This case, too, reached the Court of Cassation, which referred to the CJEU for a preliminary ruling, asking whether the wish of Micropole’s customers not to have to deal with an employee wearing an Islamic headscarf could constitute a “genuine and determining occupational requirement” in the meaning of Article 4(1) of the Directive and thus fall into the express derogation to the prohibition on direct discrimination.
The distinction between direct and indirect discrimination
Both Advocates General (AGs) acknowledge that they are dealing with similar issues: AG Kokott refers to Bougnaoui as a case that raises “a very similar question” to Achbita. (Achbita para 5). The AGs are acutely aware of the “social sensitivity inherent in the issue” (Achbita para 2), so that “the context may be perceived as a relatively ‘modern’ one and may, in certain circles, be viewed as emotive” (Bougnaoui para. 28). Both also admit that while the questions are different—the Belgian court primarily needs to know whether it is dealing with direct or indirect discrimination, while the French court assumes that there is direct discrimination and wishes to know whether it is justified—they have to analyse similar issues in order to provide answers. Indeed, the distinction between direct and indirect discrimination is essential in all EU legal instruments on discrimination. Direct discrimination occurs when there is a difference of treatment directly linked to a characteristic such as religion. Indirect discrimination happens where an apparently neutral criterion in fact puts people of a certain group at disadvantage. While direct discrimination is unlawful at any time unless an express derogation is provided for (Article 4(1) of the Directive), indirect discrimination may be lawful not only in case of an express derogation but also if it pursues “a legitimate aim and the means of achieving that aim are appropriate and necessary” (Article 2(2)(b) of the Directive).
According to AG Kokott, the company’s neutrality leaves a difference of treatment “between employees who wish to give active expression to a particular belief — be it religious, political or philosophical — and their colleagues who do not feel the same compulsion.” (para. 53) In her view, this does not amount to a difference of treatment based directly on religion, which means that Mrs Achbita is not a victim of direct discrimination; there is only a possibility of indirect discrimination by putting at risk a particular category of persons (Muslim women). On the Bougnaoui case, AG Sharpston (like the French Court of Cassation) takes the view that there has been direct discrimination. Consequently, while AG Sharpston first assesses whether an express derogation may allow for direct discrimination in Bougnaoui (and then subsidiarily addresses the justifications for indirect discrimination), AG Kokott only examines whether there is justification for indirect discrimination in Achbita.
The “genuine and determining occupational requirement”
Is there a “genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate“ (Article 4(1) of the Directive), that could justify discrimination in the cases at hand? This is where the two Advocates General part ways, due to the factual differences in the cases but possibly also to their differing views on the overarching issues.
AG Kokott relies on the freedom to conduct a business (as protected by Article 16 CFR) in order to conclude that the economic interest of an employer can constitute a genuine and determining occupational requirement and that, by extension, it also constitutes a legitimate aim that could justify indirect discrimination.
AG Sharpston considers that Micropole’s ground for dismissing Ms Bougnaoui, i.e. “the commercial interest of its business in its relations with its customers” does not justify the application of the derogation. She recalls that “the Court has held that direct discrimination (…) cannot be justified on the ground of the financial loss that might be caused to the employer“. She concludes that the situation does not correspond to the express derogation provided for by EU law.
Legitimate aim and proportionality
While she denies that the commercial interests of the employer could constitute a genuine and determining occupational requirement allowing to derogate from the prohibition on direct discrimination, AG Sharpston admits that these commercial interests and the freedom to conduct a business could constitute legitimate aims for justifying indirect discrimination. Therefore, she still deems it necessary to perform the proportionality test between the discriminatory measure and the objective pursued.
The issue, then, is whether the discriminatory measure is reasonable and necessary by reference to the aim. As seen above, the AGs do not grant the same relative importance to the freedom to conduct a business as a legitimate aim. The other point of divergence concerns the impact of a ban on external manifestations of religious identity. AG Kokott submits that “in the specific case of a headscarf ban, we should not rush into making the sweeping assertion that such a measure makes it unduly difficult for Muslim women to integrate into work and society.” According to AG Kokott, Ms Achbita’s precise case proves the point, since the latter requested to be allowed to wear her headscarf at work after having been worked without it for three years and having been “thus fully integrated into working life as a Muslim woman, despite the headscarf ban“(para 124). This is in line with AG Kokott’s remark that while the case law so far was concerned with “individuals’ immutable physical features or personal characteristics — such as gender, age or sexual orientation“, the originality of the present cases is that they have to do “with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here” (para 45). In an implicit riposte to this, AG Sharpston argues that “to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith (…) are not elements that are to be applied when outside work (…) but that can politely be discarded during working hours. (…) it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.” (para 118) Thus the divergence here is on whether the external manifestation of religion is essential to religious identity and on how much of a limitation on the freedom of religion the ban of such manifestation constitutes.
AG Kokott adds, relying on Article 4(2) TEU, that the principle of equal treatment should be interpreted and applied in light of the national political and constitutional identities of Member States. She suggests that in some Member States such as France, where secularism has a constitutional status, “the wearing of visible religious symbols may legitimately be subject to stricter restrictions (…) than in other Member States” (Achbita para. 125). This reinforces her view that a ban on wearing the veil at work, such as that in Achbita, may be considered reasonable and thus pass the proportionality test.
A few comments
The factual differences between Achbita and Bougnaoui should not be overlooked. In Achbita, there is a general ban on religious and political signs, which happens to lead to the dismissal of a woman who wants to wear her Islamic headscarf. In Bougnaoui, the employee is dismissed specifically because her Islamic veil is considered a problem for her relations with customers. It remains to be seen whether the cases will be joined (as permitted by Article 54(1) of the Rules of Procedure). Nevertheless, a joint reading of the two Opinions allows for a comprehensive vision of the problems raised. The AGs themselves are aware that these individual cases have to be considered in light of much broader issues and in fact, they both propose broad answers to the questions they are asked. AG Kokott’s Opinion includes an analysis of the requirement of a “genuine and determining occupational requirement” even the case is one of indirect discrimination and therefore applying the less restrictive criterion of a legitimate aim could have been sufficient. Conversely, AG Sharpston, while making clear that the Bougnaoui case deals with direct discrimination, develops arguments regarding a “hypothetical” (Bougnaoui para 110) case of indirect discrimination which strongly resembles the Achbita one. The urge which both AGs felt to answer in a manner as complete as possible reflects the need for solutions which will preserve the overall consistency of the legal framework on discrimination.
The core questions that the CJEU most likely will address include, firstly, the distinction between direct and indirect discrimination, because the possibilities for justification are broader in case of indirect discrimination. This is probably the least problematic issue (or at least, the Opinions are not incompatible on this point). Secondly, the Court will have to assess the extent to which the economic interests of a company, understood as component of the freedom to conduct a business, can justify discrimination on the basis of religion. Thirdly, in performing this proportionality test, it will have to clarify how the external manifestation of religious belief fits in the legal framework on the prohibition on discrimination. One way to tackle this issue is to assess whether such manifestation should be considered a personal choice or a characteristic inherent to a person’s religious identity. AG Kokott and AG Sharpston clearly have radically opposed views on this. Another way would be to reason in terms of effectiveness: if we want rights to be effective (including the right to freedom of religion), the “personal” choice to exercice them should be a real choice, not one which exposes their holders to dissuasive disadvantages.
Another question that the Court might address is how the protection of national constitutional identity (Article 4(2) TEU) can be taken into account in the proportionality test, as suggested by AG Kokott. This in turn raises a number of questions, among which: if there is a matter of national identity in allowing or prohibiting the wearing of a veil (or other religious signs) at work, should it really be left to the discretion of private individual employers? Perhaps the Court could manage to reach a solution without engaging in this debate. Likewise, many connected questions are mentioned in these Opinions but will most likely be set aside by the Court. For instance, both AGs agree that the situations in Achbita and Bougnaoui might have to be handled differently if they arise in the public sector. Another important issue, mentioned by AG Sharpston, is the difference between the positions of the European Court of Human Rights and the CJEU with regard to discrimination on the basis of religion.
One of the main advantages of the Sharpston approach is that it preserves the uniform application of EU law and the effectiveness of the EU prohibition on discrimination. In this regard, it is faithful to the Court’s original approach to discrimination ever since the landmark Defrenne II ruling. AG Sharpston’s Opinion also reflects an evolutive vision of the status of fundamental freedoms and especially the freedom to conduct a business, the relative importance of which she tones down in light of the necessity to protect other fundamental rights (such as religious freedom). AG Kokott, on the other hand, is more protective of the freedom to conduct a business and she leaves more room for cultural, constitutional and ideological variations across Member States. Thus, Achbita and Bougnaoui, apart from providing the Court with an opportunity to give much awaited answers on questions of discrimination on the basis of religion, also nicely illustrate the role of the Advocates General, that is, providing the Court with a comprehensive overview of the stakes.
Catherine Warin, LL.M.
Ph.D candidate and Teaching Assistant, University of Luxembourg
 The references to Bougnaoui and Achbita are references to the Opinions on each case, since the rulings not having been issued to this date and this post focuses exclusively on the Opinions.
 As pointed out by AG Sharpston this issue has been discussed by AG Bot in another context: Opinion of Advocate General Bot in Joined Cases Y and Z, C‑71/11 and C‑99/11, EU:C:2012:224.
 See Judgment in Seigneur v ECB, F-95/14, EU:F:2015:155, para 59 and Judgment in Bowles v ECB, F-94/14, EU:F:2015:156, para 59 where the Civil Service Tribunal held that the choice to exercice representation mandates was part of the fundamental rights protected by Articles 27 and 28 CFR.
 Judgment in Defrenne, 43/75, EU:C:1976:56.Julie Fonseca