Interpreting Freedom of Religion or Belief in Different Legal Sources

Since the United Nations established the Declaration of Human Rights in 1954, people have been attempting to incorporate the rights of others into their actions. One of the current challenges concerns the freedom of religion and belief and the discrimination that often appears when certain religious groups are not understood in society. With regards to this issue, the Directorate General for Internal Affairs Policy Department on Citizens’ Rights and Constitutional Affairs of the EU, along with the experts Chiara Favilli and Nicole Lazzerini from the University of Florence, produced a study on “Discrimination(s) as emerging from petitions received.” These are guidelines and interpretations, which can be found in their entirety here.

Here we provide a reproduction of the section on Religion or Belief:

2.8 Religion or Belief

Art. 19 TFEU, Art. 21(1) CFR and Directive 2000/78/EC mention religion amongst the prohibited grounds of discrimination. The word religion is associated with the term belief. The prohibited ground of discrimination must therefore be interpreted by considering both concepts which equally appear in international conventions aimed to recognise freedom of religion (notably Art. 9 ECHR and Art. 18 ICCPR). Based on the case law of the ECtHR, which must be considered under Article 52(3) CFR, the terms should be interpreted broadly, notably as encompassing also the discrimination of churches or, in general, groups around which a religious activity is organised. These terms must be understood as providing protection in relation to any belief, not only those connected in any way to a deity, but also non-religious belief systems, i.e. sets of ideas and opinions on life and lifestyle. The concept of non - violence and pacifism offers an example because it goes beyond the conceptualisation of peaceful relations between states and rather involves various aspects of human relations. By contrast, mere opinions do not fall within the protected scope of the ground concerned.

It is doubtful whether sects may also be granted protection under the rules on freedom of religion as well as under the rules concerning discrimination on grounds of religion. Generally speaking, the term ‘sect’ refers to a group which, under the mantle of religion, carries out activities which are illegal or even harmful to its followers, sometimes violating their dignity. In its 1996 resolution on cults in Europe the European Parliament affirmed that freedom of religion can be limited when an organisation commits acts of torture, inhuman and degrading treatment or involves serious forms of psychological subjugation, thus urging countries to be cautious in granting the status of religious confession to sects whose methods are seriously questionable.

Interesting developments occurred relating to the dialogue with churches, religious associations or communities and philosophical and on - confessional organisations required under Article 17(3) TFEU. Where the EU institutions have a duty to promote and maintain the religious dialogue with churches and religious organisations, Article 17(1 - 2) TFEU refers to national law of the Member States for any issues related to the status of churches and non-confessional organisations under their jurisdiction. Member States therefore retain exclusive competence in the management of religious and philosophical diversity in the internal legal order. The EU only has a duty to promote a dialogue and not to prejudice the status of churches and religious associations and communities.

Before the introduction of Art. 19 TFEU the CJEU had the opportunity to consider the religious factor as a justification for derogations to the freedom of movement of citizens. In an old EU staff case the CJEU held that, when organising competitions, the EU institutions shall consider religious requirements where duly communicated (for instance in relation to holy days), in order to allow all participants to take the tests.

More interesting are the two cases, decided in 2017 by the CJEU, which dealt with wearing religious clothing, notably the headscarf. Two employers, one in Belgium and the other one in France, had dismissed two Muslim women because they wore a headscarf at work despite having been asked to refrain from doing so. When they refused to comply with this request, their employment was terminated. The judgments were much awaited, because different Advocates General had endorsed different approaches, notably concerning the meaning of 'direct' and 'indirect' discrimination and the concept of 'genuine and determining occupational requirements' provided by Directive 2000/78/EC at Article 4(1).

In Bougnaoui, the CJEU qualified the meaning of ‘religion’ according to Article 10 CFR which corresponds to Article 9 ECHR. The Court then qualified both dismissals as different treatments indirectly based on religion or belief according to Article 2(2)(b) of Directive 2000/78/EC. This led the Court to explore whether such different treatments were objectively justified by a legitimate aim by the employer ‘of a policy of neutrality vis-a-vis its customers, and if the means of achieving that aim are appropriate and necessary’. As far as the exception provided for in Art. 4(1), when a ‘genuine and determining occupational requirement’ occurs, the CJEU clearly states that ‘it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement [...]’. It follows from the information set out above that the concept of a ‘genuine and determining occupational requirement’ within the meaning of that provision refers to a requirement which is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer. Consequently, the answer to the question put by the referring court is that Article 4(1) of Directive 2000/78 must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

In G4S Secure Solutions the CJEU proposed the same reasoning as regards Bougnaoui, as far as the qualification of the difference of treatment as a case of discrimination indirectly based on religion is concerned. According to the Court, under Article 2(2)(b)(i) of Directive 2000/78 such a difference of treatment does not, however, amount to indirect discrimination within the meaning of Article 2(2)(b) of the Directive if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. The Court then states‘ that the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate and stemming from the freedom to conduct a business that is recognised in Article 16 CFR’. The Court then clarifies that such a policy of neutrality ‘is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to have contacts with the employer’s customers’.

This interpretation is in line with the ECtHR case law on freedom of religion (Art. 9 ECHR), where the Court has stated that a limited restriction on the freedom of religion is admissible within the framework of the Convention. In the reasoning of the CJEU a key role is played by a policy of neutrality already existing in the company before the dismissal and by its practical implementation. In order to be admissible the prohibition of wearing visible religious clothing must be ‘strictly necessary for the purpose of achieving the aim pursued’. Therefore, national judges have to assess if ‘taking into account the inherent constraints to which the undertaking is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S, faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her’. In summary, the Court leaves it to national judges to strike a balance between, on one hand the legitimate aim pursued by an employer through a policy of neutrality and, on the other the restrictions on the freedom of religion which may be limited to what is strictly necessary.



CJEU              Court of Justice of the European Union

CFR                Charter of Fundamental Rights of the European Union

ECHR             European Convention on Human Rights and Fundamental Freedoms

ECtHR            European Court of Human Rights

TFEU              Treaty on the Functioning of the European Union


Source: European Parliament