On November 28, 2032, the CJEU issued a judgment in case C-148/22, concerning the interpretation of Article 2(2)(a) and (b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“Directive”).

Article 2 of the Directive defines the term “discrimination,” distinguishing its direct and indirect forms, and states i.a. that indirect discrimination occurs when a provision, criterion, or seemingly neutral practice may lead to a particular disadvantage for persons of a given religion or belief, disability, age or sexual orientation, to other persons unless such provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The case concerned a member of the contract staff of the Commune d’Ans (municipal authority of Ans in Belgium), who after several years of working in the latter, applied for permission to wear a headscarf at work in February 2021. The municipal council rejected the request and temporarily prohibited the plaintiff from wearing symbols that reveal her religious beliefs while performing her professional authority, until the adoption of general regulations regarding the wearing of such symbols in municipal administration. Then the commune council changed the work regulations in force, including a ban on all commune employees from wearing any visible symbol at work that could reveal their beliefs, particularly religious or philosophical ones, regardless of whether these employees are in contact with the citizens.

The last condition is crucial, as the scope of the plaintiff’s duties did not require contact with public service users. Moreover, the national court referring the case to the CJEU also considered it important. It emphasizes that the ban on wearing the Islamic headscarf by the plaintiff constitutes different treatment historically, as discretely worn symbols revealing religious beliefs have been tolerated and are still tolerated at the workplace by the commune. Furthermore, the court stressed that this different treatment finds no grounding in the provisions of the Belgian anti-discrimination law, which states that they can only be justified by genuine and determining occupational requirements, as the plaintiff performed her duties mainly without contact with users of the public services. The referring court also noted that the prohibition seems to apply mostly to women (since they are those who are wearing headscarves in the Islamic religion) and may therefore constitute indirect discrimination on grounds of sex.

The CJEU did not agree with the referring court’s position, claiming that: each Member State, including, where appropriate, its infra-State bodies, “must be afforded a margin of discretion in designing the neutrality of the public service which it intends to promote in the workplace.” Therefore, it can apply a policy of „exclusive neutrality” to create a completely neutral administrative environment, which can be considered objectively justified by the purpose of the Directive. Similarly, the state (or local authorities) may choose a different policy of neutrality, such as a general and undifferentiating permit to wear visible symbols of beliefs, particularly philosophical or religious, including in contact with users of public services, or a prohibition of wearing such symbols limited to situations involving such contacts.

What the CJEU emphasized, however, is that an eventual ban must be enforced against everyone. Member States’ discretion should be subject to review by national and EU courts. What particularly is to be checked is whether the measures taken are in principle justified and proportionate. In the present case, the CJEU stated that it is for the referring court to examine whether the municipality pursues the objective of ensuring the neutrality of the public service by the prohibition in a manner truly consistent and systematic to all employees.

Concerning the problem of possible discrimination based on sex raised by the national court, the CJEU avoided answering this question, considering it inadmissible because this type of discrimination falls within the scope of application of another directive (Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation), which was not related to the question of the referring court.

The CJEU further noted that the referring court did neither provide any information allowing it to determine the factual situation on which the question of discrimination on grounds of sex was based nor did it give the reasons why an answer to that question would be necessary to resolve the dispute in the main proceedings.

The discussed judgment is another verdict of the CJEU consenting, under the Directive, to the use of compulsory philosophical or religious neutrality in the workplace. Another case also referred by a Belgian court—Case C-344/20—concerned a woman wearing an Islamic headscarf who approached the defendant, a cooperative limited liability company whose main activity consists of the letting and operating of social housing, willing to undergo an unpaid internship lasting several weeks. The cooperative’s work regulations included a provision stating that “workers undertake to respect the company’s strict policy of neutrality” and that those workers “will therefore make sure not to manifest in any way, either by word or through clothing or any other way, their religious, philosophical or political beliefs, whatever those beliefs may be.” The plaintiff refused to stop wearing the headscarf during the internship but suggested that she could wear a different type of head covering. The cooperative refused, arguing that wearing any type of head covering is prohibited in its facilities, and refused to accept the plaintiff for the internship. In this case, the CJEU also pointed out that a provision of a workplace’s work regulation prohibiting workers from expressing their religious or philosophical beliefs, regardless of their nature, including words, clothing, or any other means of manifesting, does not constitute discrimination, within the meaning of the Directive, towards workers willing to exercise their freedom of religion by wearing a visible sign or clothing resulting from religious precepts, provided that this provision is applied generally and without distinction.

To conclude, a common denominator of the CJEU’s interpretation of the provision of the Directive indicated at the beginning is that the Court consents to the use of compulsory philosophical or religious neutrality in the workplace, provided that it is applied equally to all persons subject to it.