Religious freedom of worker and neutrality of public offices. The ruling of the Court of Justice of the European Union dated 28 November 2023.

Just over two years after the ruling of 15 July 2021 in joined cases nos. C-804/16 and C-341/19, the Court of Justice of the European Union returns to the issue of the carrying of religious symbols in the workplace, this time with specific regard to the public sector in Belgium. This is a highly topical issue, as demonstrated by the innovations introduced, in this specific area, by the French law 2021-1109 confortant le respect des principes de la République.

The case defined by the Grand Chamber of the Court of Luxembourg on 28 November 2023 in case C/148-22 concerns the request of a female worker employed by a dependent municipal body to wear the Islamic headscarf during working hours.

Although the work activity was carried out mainly without contact with users (back office), the Council of the Municipality of Ans (Belgium) prohibited the worker from showing off symbols that revealed her religious beliefs pending the issuing of municipal legislation relating to use of religious symbols within the administration.

Following the requests of the municipal board, the Ans Municipal Council proceeded to modify the regulation by accepting a model of "exclusive neutrality" which imposed on all employees the prohibition of any form of proselytism and the prohibition of wearing "visible signs" of their belonging ideological or religious, regardless of contact or otherwise with users of public services (art. 9).

Complaining about the violation of her right to religious freedom, the worker thus proposed an injunction action before the Labor Court of Liège, challenging both the decisions of the municipal council and the new provisions of the municipal regulation.

Hence the reference for a preliminary ruling to the Court of Justice of the European Union, which was however limited by the referring judge to the verification of the compatibility aspects of the art. 9 of the Ans’ municipal regulation with the European Union anti-discrimination law, and specifically with the art. 2, paragraph 2, letter. a) and b) of Directive 2000/78. In other words, the Court was asked to evaluate, firstly, whether the organization of a totally neutral administrative environment and the ban, extended to all employees, from wearing signs that could reveal religious beliefs constituted direct discrimination and, secondly, whether this ban, mainly affecting female workers, could integrate a hypothesis of indirect discrimination based on gender.

Having set the reference in these terms, the preliminary questions on which the Court of Luxembourg was called upon to rule coincided with those already brought to its attention in the judgment defined by the previous ruling of 2021.

The Court's decision to deem the organization of a totally neutral working space compatible with European anti-discrimination law, in accordance with what the Court had already decided in its 2021 ruling for the private sector, therefore appeared predictable in its outcome.

Even in the text of a ruling limited to the examination of anti-discrimination law aspects, the Court's reference to the possible adoption by member states of "another policy of neutrality", implemented through " a general and undifferentiated permission for the wearing of visible signs of beliefs – philosophical or religious in particular – including in contacts with users, or a prohibition on the wearing of such signs limited to situations involving such contacts”.

In effect, these alternative solutions seem to constitute organizational models capable of guaranteeing a non-differentiated and uniform provision of public services without requiring a significant compression of the right to religious freedom of workers, in compliance with the art. 22 of the Charter of Fundamental Rights of the European Union (The Union shall respect cultural, religious and linguistic diversity), not even mentioned in the ruling of the Court.

Fabio Balsamo