The Headscarf Debate Returns to Luxembourg: A Second Chance for Religious Freedom?
| Author | David Antonio Zuther |
| Position | LLB (University of Edinburgh) '22 |
| Pages | 86-114 |
86
The Headscarf Debate Returns to Luxembourg
Vol. VII
The Headscarf Debate Returns to Luxembourg: A
Second Chance for Religious Freedom?
David Antonio Zuther*
ABSTRACT
The CJEU’s July 2021 judgment in WABE and Müller (Joined Cases C-804/18 and C-
341/19) was anticipated by observers as a sequel to two earlier, highly controversial decisions
regarding EU anti-discrimination law and workplace bans on religious dress, Achbita and
Bougnaoui. In Achbita, the Court held that EU law permitted employers to prohibit employees
from wearing Islamic headscarves and other religious symbols as part of a corporate neutrality
policy. These earlier judgments were roundly criticised by commentators as weakening the
protection from religious discrimination in the workplace. This contribution will engage with the
Court’s recent judgments, summarising first the decisions in Achbita and Bougnaoui and the
criticism directed at them. It will then consider the framing of the preliminary references in
WABE and Müller before turning to the Opinion of Advocate General Rantos and the Court’s
judgment. This contribution concludes that the Court’s recent judgment addresses many of the
key problems with Achbita and Bougnaoui - in particular, the role of fundamental rights in the
proportionality assessment as well as the ability of Member States to go beyond the minimum
standard set by Union law. However, other issues remain open, so these decisions represent an
important but cautious step forward from the perspective of religious freedom and non-
discrimination in the workplace.
* LLB (University of Edinburgh) ‘22.
2021
LSE LAW REVIEW
87
INTRODUCTION
In July 2021, the CJEU’s judgment in WABE and Müller
1
was handed down.
Both cases arrived as preliminary references from German courts and concerned
Muslim women who had been disciplined by their employers for wearing
headscarves to work. Those cases in many ways represented a sequel to the
Court’s 2017 judgments in Achbita
2
and Bougnaoui
3
in which the CJEU interpreted
the meaning of religious discrimination for the purposes of the Employment
Equality Directive
4
for the first time.
In Achbita, the Court found that an employer’s corporate neutrality policy
prohibiting employees from wearing any visible signs of their religious,
philosophical, or political convictions and beliefs may justify indirect
discrimination on the basis of religion or belief, within the meaning of Article
2(2)(b) of the Employment Equality Directive. In Bougnaoui, it ruled that a
customer’s wish not to be served by a headscarved employee could not constitute
a ‘genuine and determining occupational requirement’ - a defence to direct
discrimination - within the meaning of Article 4(1) of the Directive.
The twin judgments in Achbita and Bougnaoui made waves far beyond the
world of EU lawyers. As they related to debates about pluralism, tolerance,
integration, and diversity which were then and are now a cause of contention
across Europe, the rulings were widely reported in the press and discussed in
academia. Both the reach of the decisions and the tenor of the relevant responses
to them are perhaps best illustrated by the fact that the New York Times editorial
1
Joined Cases C-341/19 and C-804/18 IX v WABE eV and MH Müller Handels GmbH v
MJ, EU:C:2021:594.
2
Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding
v G4S Secure Solutions NV, EU:C:2017:203.
3
Case C-188/15 Asma Bougn aoui and Association de défense des droits de l’homme (ADDH) v
Micropole Univers SA, EU:C:2017:204.
4
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 (Employment
Equality Directive).
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