The Advocate General of the European Court of Justice has said that where applied in a general and undifferentiated way, such a rule may be justified by the desire of a municipal authority to put in place an entirely neutral administrative environment.
A female employee of the municipal authority of Ans in Belgium was prohibited from wearing the Islamic headscarf in her workplace. The municipal authority thereafter amended its terms of employment, henceforth requiring its employees to observe strict neutrality, prohibiting any form of proselytising and banning the wearing of overt signs of ideological or religious affiliation. The employee claims that, in doing so, the municipal authority infringes her freedom of religion.
The Labour Court of Liège (Belgium), before which the employee brought proceedings, considers that the prohibition laid down by those terms of employment does not constitute direct discrimination on the grounds of religious or philosophical belief, but seemingly indirect discrimination based on those criteria. That court is uncertain whether, under the ‘anti-discrimination’ Directive in the field of employment, the imposition of ‘exclusive and absolute’ neutrality on all the employees of a public service (even those who have no direct contact with users of the public service) constitutes a legitimate aim and whether the means used to achieve that aim (the prohibition on the wearing of any signs of belief) are appropriate and necessary.
In his Opinion, Advocate General Anthony Collins (the AG) finds that the Ans municipal authority’s terms of employment do indeed fall within the scope of the directive in so far as that directive concerns both the public sector and the private sector, and that a prohibition such as the one at issue comes under the scope of ‘employment and working conditions’ within the meaning of that directive. He also observes that the concept of ‘religion’ in that directive covers both the fact of having a belief and the manifestation of religious faith in public, such as a woman wearing the Islamic headscarf. In his view, the general framework established by the directive leaves a margin of discretion to the Member States which is particularly broad where the principles at stake may involve their national identities. The imposition of restrictions on the freedom of public sector employees to manifest their political, philosophical or religious beliefs in the performance of their duties may be of such importance in some Member States that it forms part of their national identities, inherent in their fundamental structures, political and constitutional.
The AG takes the view that a public body’s terms of employment which prohibit employees from wearing any visible sign of political, religious or philosophical belief in the workplace does not constitute direct discrimination on the grounds of religion or belief, for the purposes of the directive, provided that that prohibition is applied in a general and undifferentiated way. Regarding whether that prohibition constitutes indirect discrimination, the AG considers that, while it is apparently neutral, it is possible that the prohibition in practice affects a certain category of persons more, such as the municipal authority’s employees who observe religious precepts requiring them to wear certain clothing, and in particular female workers who wear a headscarf on account of their Muslim faith. He adds that such a difference of treatment would nonetheless not constitute indirect discrimination if it were objectively justified by a legitimate aim and if the means employed to achieve that aim were appropriate and necessary. The desire to pursue a policy of political, philosophical and religious neutrality within a public body is, in absolute terms, capable of constituting a legitimate aim, in particular for the purpose of respecting the philosophical and religious beliefs of citizens as well as the need to ensure equal and non-discriminatory treatment of users of the public service. In addition, the existence of an objective justification for establishing such a distinction relates to the different conceptions of neutrality in Belgium.
The AG finds that the municipal authority, in adopting the prohibition at issue, deliberately opted for ‘exclusive neutrality’, with a view to putting in place an ‘entirely neutral administrative environment’. He considers that it is for the municipal authority to demonstrate that that choice responds to a genuine need, and for the Labour Court of Liège to assess, from two perspectives which are not necessarily cumulative, whether that demonstration is well-founded. First, according to the AG, the Labour Court of Liège should take into account the apparent absence of any legislative or constitutional obligation in Belgium requiring employees of a municipal authority to observe exclusive neutrality. Second, it should be ascertained whether the facts justify the municipal authority’s choice.
In that regard, the fact that the wearing of signs of philosophical or religious belief is unconditionally permitted in other cities of Belgium legitimately raises the question whether the prohibition at issue is appropriate