Headscarves and the CJEU: Protecting fundamental rights and pandering to prejudice, the CJEU does both
| Author | Erica Howard |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1177/1023263X221080557 |
| Subject Matter | Articles |
Headscarves and the CJEU:
Protecting fundamental rights
and pandering to prejudice,
the CJEU does both
Erica Howard *
Abstract
The CJEU judgment in the two latest Islamic headscarf cases was handed down in July 2021. The
judgment allows employers to ban the wearing of religious and other symbols by employees, but it
does specify under what conditions this can be done. This article builds on a previous article on
the opinion of AG Rantos and the Shadow Opinion of former AG Sharpston and analyses the judg-
ment in detail. It argues that the judgment is an improvement on the previous CJEU headscarf
judgments in that it provides more protection for fundamental human rights. However, the
CJEU also appears to allow employers to a certain extent to pander to the prejudicial wishes
of their customers. The article concludes that the judgment presents a small glimmer of hope
that the CJEU might be moving –albeit very slowly - towards more protection of Muslim
women who want to wear headscarves at work for religious reasons.
Keywords
Islamic headscarves, employment, religion or belief discrimination, direct and indirect
discrimination, justification
1. Introduction
In an earlier article published in this journal in 2021,
1
the Opinion of Advocate General (AG)
Rantos in two cases, referred by German courts, concerning the wearing of Islamic headscarves
*
Law, Middlesex University, London, UK
Corresponding author:
Erica Howard, Law, Middlesex University, The Burroughs, London NW4 4BT, UK.
E-mail: e.howard@mdx.ac.uk
1. E. Howard, ‘Headscarves and the CJEU: Protecting Fundamental Rights or Pandering to Prejudice’,28Maastricht
Journal of European and Comparative Law (2021), p. 648, written and accepted for publication before the CJEU judg-
ment was handed down.
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(2) 245–262
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221080557
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at work –IX v. Wabe eV and MH Müller Handels GmbH v MJ –was examined.
2
The article also
analysed the Shadow Opinion of former AG Sharpston in these cases.
3
It was argued that the
opinion of AG Rantos appeared to give both public and private employers almost carte blanche
to adopt neutrality policies in their workplaces based on the wishes (or prejudices) of their custo-
mers. This left the Court of Justice of the European Union (CJEU) with two choices: protecting the
fundamental rights of employees or allowing employers to pander to prejudice.
The Grand Chamber of the CJEU handed down its judgment in these two joint cases on 15 July
2021,
4
building on the CJEU’s earlier two judgments concerning Muslim women who wanted to
wear headscarves at work for religious reasons.
5
Former AG Sharpston explains that the CJEU
joined these two cases and allocated them to the Grand Chamber because the references in Wabe
and Müller showed that the judgment in Achbita was unclear and left national courts and employers
wondering how it should be applied.
6
The CJEU judgment in Wabe and Müller can be said to
explain that, although employers can ban employees from wearing religious, philosophical and pol-
itical symbols at work, they can only do so under certain conditions specified in the judgment. It will
be argued here that the CJEU appears to have done a little of both: on the one hand, it gives more
protection to fundamental rights but, on the other hand, it appears to allow employers to pander to
the prejudices of customers against employees wearing headscarves for religious reasons. It must be
noted that the CJEU comes to different conclusions to AG Rantos on a number of points and that it
makes very little reference to the Opinion in its judgment.
This article starts with a short recap of the earlier CJEU judgments in Achbita and Bougnaoui,
which is followed by a summary of the facts and the questions asked by the referring courts in Wabe
and Müller. The judgment of the CJEU is then analysed and a number of issues highlighted: the
definition of religion or belief in EU law; whether there was direct or indirect discrimination;
what needs to be taken into account when assessing whether the latter is objectively justified;
and the status of national provisions when these give wider protection.
2. Achbita and Bougnaoui
Achbita, a Muslim woman, worked for G4S as a receptionist who was permanently contracted out
to a third party. After she worked for G4S for three years, Achbita expressed her wish to wear an
Islamic headscarf at work, but was told that she could not do so as this was against the strict neu-
trality rule which prohibited the wearing of any visible signs of political, philosophical or religious
2. Opinion of AG Rantos in Joined Cases C-804/18 IX v. Wabe eV and C-341/19 MH Müller Handels GmbH v. MJ, EU:
C:2021:144. On these preliminary references see: E. Howard, ‘Headscarves Return to the CJEU: Unfinished Business’,
27 Maastricht Journal of European and Comparative Law (2020), p. 10.
3. The cases were allocated to AG Sharpston in 2019, but after she left office in September 2020, they were reallocated to
her successor, AG Rantos. Because the former AG and her team had already done much of the work for the opinion, she
wrote a Shadow Opinion to contribute to the debate in this area, see: E. Sharpston, ‘Shadow Opinion of Former Advocate
General Sharpston: Headscarves at Work (Cases C-804/18 and C-341/19)’,EU Law Analysis, 23 March 2021, http://
eulawanalysis.blogspot.com/2021/03/shadow-opinion-of-former-advocate.html.
4. Joined Cases C-804/18 IX v. Wabe eV. and C-341/19 MH Müller Handels GmbH v. MJ, EU:C:2021:594. See on these
cases also: E. Howard, ‘Headscarf Wearing Employees and the CJEU: What Employers Can or Cannot Do’ERA Forum
(published online 22 September 2021).
5. Case C-157/15 Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v. G4S Secure
Solutions NV, EU:C:2017:203; Case C-188/15 Asma Bougnaoui, Association de Défense des Droits de l’Homme
(ADDH) v. Micropole Univers SA, EU:C:2017:204.
6. E. Sharpston, EU Law Analysis (2021), para. 79.
246 Maastricht Journal of European and Comparative Law 29(2)
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