Headscarves return to the CJEU: Unfinished business
| Date | 01 February 2020 |
| Published date | 01 February 2020 |
| Author | Erica Howard |
| DOI | 10.1177/1023263X19889247 |
| Subject Matter | Articles |
Article
Headscarves return to the CJEU:
Unfinished business
Erica Howard*
Abstract
In 2017, the CJEU brought out its judgments in two cases concerning bans on the wearing of Islamic
headscarves at work as possible discrimination on the grounds of religion or belief under Directive
2000/78/EC. These judgments led to heavy criticism, mainly because the CJEU did not do a rig-
orous proportionality test and left a number of questions open. Two recent preliminary references
from courts in Germany present the CJEU with an opportunity to expand on the earlier judgments
and to answer the questions they left open. It is submitted that the CJEU should deal with this
unfinished business in a way which respects Europe’s religious diversity and ensures that the
ground of religion and belief does not become the poor relation of EU anti-discrimination law.
Keywords
Islamic headscarves, religious discrimination, direct discrimination, indirect discrimination,
proportionality test, charter of fundamental rights of the EU
1. Introduction
In March 2017, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued
its first two judgments concerning prohibitions on the wearing of Islamic headscarves at work as
possible discrimination on the grounds of religion or belief under Directive 2000/78/EC.
1
The
* Middlesex University, UK
Corresponding author:
Professor Erica Howard, School of Law, Middlesex University, The Burroughs, Hendon London NW4 4BT, UK.
E-mail: e.howard@mdx.ac.uk
1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation, [2000] OJ L 303/16 (Directive 2000/78/EC). These cases are: Case C-157/15 Samira
Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v. G4 S Secure Solutions NV,
EU:C:2017:203; Case C-188/15 Asma Bougnaoui, Associationde D ´
efense des Droits de l’Homme (ADDH) v. Micropole
Univers SA, EU:C:2017:204.
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(1) 10–28
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X19889247
maastrichtjournal.sagepub.com
MJ
MJ
judgments were criticised quite heavily in the literature for a number of different reasons, including
that they left some questions open.
2
There are, at present, two preliminary references to the CJEU
from different courts in Germany concerning the wearing of Islamic headscarves at work.
3
It is
argued here that the questions asked in these two preliminary references address a number of the
points of criticism raised against the judgments in Achbita and Bougnaoui. The CJEU will,
therefore, have an opportunity to expand on and explain its earlier decisions and, contrary to what
it did in the 2017 decisions, take a lead in the protection offered by EU law against religion or
belief discrimination. This article starts with a short summary of Achbita and Bougnaoui and an
overview of the criticism raised against these cases. Then, the two preliminary references and the
questions asked, including the views of the referring courts, will be examined. It will be argued that
the CJEU should reply to the preliminary questions referred to it in such a way as to provide
protection against religion or belief discrimination which is as strong as the protection provided by
EU law against the other grounds of discrimination covered. If the CJEU does not do this, it will
leave religious minorities without the protection provided for other minorities.
2. Achbita and Bougnaoui
Both Achbita and Bougnaoui concerned women who wanted to wear an Islamic headscarf to work
and, when their employer asked them to remove their headscarf, they refused to do so and were
then dismissed. Ms Achbita was a receptionist working for G4 S who was permanently contracted
out to a third party. When she informed her employer that she wanted to start wearing the Islamic
headscarf to work, G4 S replied that this was against their rule that employees could not wear
visible signs of their political, philosophical or religious beliefs in the workplace. The Belgian
Court of Cassation asked the CJEU if this was direct discrimination on the ground of religion or
belief contrary to Article 2(2)(a) of Directive 2000/78/EC. Ms Bougnaoui worked as a design
engineer for Micropole and she occasionally went out to work at customers’ sites. She was asked to
remove her headscarf after a customer’s staff member complained about it and, when she refused,
she was also dismissed. The French Court of Cassation asked the CJEU whether the wish of a
customer to no longer have services provided by an employee wearing a headscarf was a genuine
and determining occupational requirement under Article 4(1) of Directive 2000/78/EC. It is worth
noting that there were diverging opinions of the Advocates General
4
in these cases.
2. See E. Howard, ‘Islamic Head Scarves and the CJEU: Achbita and Bougnaoui’, 24 Maastricht Journal of European and
Comparative Law (2017) p. 348-366 and the literature referred to there. See also: M. Bell, ‘Leaving Religion at the
Door? The European Court of Justice and Religious Symbols in the Workplace’, 17 Human Rights Law Review (2017),
p. 784-796; S. Hennette-Vauchez, ‘Equality and the Market: the Unhappy Fate of Religious Discrimination in Europe’,
13 European Constitutional Law Review (2017), p. 744-758; S. Jolly, ‘Religious Discrimination in the Workplace: the
European Court of Justice Confronts a Challenge’, 3 European Human Rights Law Review (2017), p. 308-314; T.
Loenen, ‘In Search of an EU Approach to Headscarf Bans: Where to go After Achbita and Bougnaoui?’, 10 Review of
European Administrative Law (2017), p. 47-73; L. Vickers, ‘Achbita and Bougnaoui: One Step Forward and Two Steps
Back for Religious Diversity in the Workplace’, 8 European Labour Law Journal (2017), p. 232-257; E. Relano Pastor,
‘Religious Discrimination in the Workplace: Achbita and Bougnaoui’, in U. Belavusau and K. Henrard (eds.) EU Anti-
Discrimination Law Beyond Gender (Hart Publishing, 2019), p. 183-202.
3. Case C-804/18 IX v. Wabe e.V., [2019] OJ C 182/4, 27 May 2019; Case C-341/19 MH Mu¨ller Handels GmbH v. MJ,
[2019] OJ C 225/20 (lodged 30 April 2019).
4. Opinion of Advocate General Kokott in Case C-157/15 Achbita v. G4 S, EU:C:2016:38; Opinion of Advocate General
Howard 11
To continue reading
Request your trial