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N. Ahmadi 12465941

European Union Law T. A. J. Vandamme

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Abstract ... 3

Methodology ... 4

Deconstructing Achbita: a caselaw analysis... 5

1.1 Legislative context ... 5

1.2 Nondiscrimination Caselaw in Practice ... 7

1.3 Achbita: a case analysis ... 10

1.4 European Court of Human Rights ... 11

1.5. A-G Kokott and the anti-Islamic sentiment within Europe ... 12

1.6 Direct Discrimination, Bougnaoui and Advocate General Sharpston ... 15

1.7 Intersectional Discrimination of Muslim Women ... 17

Conclusion ... 19

Redemption through the Free Movement framework of Article 45 TFEU ... 20

Introduction ... 20

2.1 Scope of Article 45 TFEU ... 21

2.2 Direct – Horizontal Effect ... 21

2.3 (In)Direct Discrimination and Market Restrictions ... 22

2.4 Market Access Approach... 22

2.5 Justifications ... 24

Conclusion ... 25

3. Neutrality Policies & 45 TFEU ... 26

Introduction ... 26

3.1 Conditions of employment and workers ... 27

3.2 Is Neutrality an obstacle? ... 28

3.3 Comparison – Achbita within Free Movement ... 29

3.4 Pressing needs in the General Interest ... 31

Conclusion ... 33

Bibliography ... 35

Cases ... 35

European Court of Human Rights ... 36

Caselaw – Other ... 37

Legislation ... 37

A

The Achbita1 case sent a ripple effect through the European Union (EU), taking the form of

the metaphorical butterfly beating its wings and producing a tornado elsewhere. That tornado most likely erupted in the lives of Muslim women throughout the EU, for whom access to the labor market as full members of society shattered. The European Union in theory reflects a utopian society: a shared desire to create an area of peace, unity and prosperity turned into the Union we know today, founded on values of equality, human dignity, fundamental rights, freedom, pluralism, tolerance and justice, a place where the rights of minorities are protected.2

The present-day reality is turning this vision into more of a dream, the degradation of these values as a result of relentless Islamophobia, polarization, discrimination and

politicized fear of the ‘other’ is causing minority rights to dissolve.3 The rise of populist

movements that thrive on nationalist agendas and fuel anti-EU sentiment are silencing liberal voices and reducing protection for minority groups.4 Still, the Court of Justice is known for

resilience and unwavering willingness to ensure the effectiveness of EU law. It holds a position where it can induce compliance, strengthen fundamental rights and apply creative solutions to produce desired outcomes.5

In Achbita, creative reasoning was applied, but to the detriment of non-discrimination law. The principal mode of conduct, which requires a weighing of interests, resisting blanket-bans, proportionality reviews, recourse to effective judicial, and the obligation of judging on a case by case basis whether rights can be restricted, was not applied. Consequently, a ‘neutrality policy’ in the form dictated by the Achbita case constitutes a legal vacuum through which Muslim women can be excluded and dismissed from employment.

In this thesis, a novel approach is taken to consider whether redemption can be found in free movement law, a theory that has not yet been considered. Could a neutrality policy impede the freedom of movement of workers?

1 Case C-157/15 Achbita [2017] ECLI:EU:C:2017:203 (Achbita)

2 Treaty on European Union (Consolidated Version) [2002], OJ L C326/13 art. 2; (TEU)

3 M. Magid, (2020) Europe has an Islamophobia problem. Who’s going to stop it?, Euractiv 17 Jan 2020 accessible at:

https://www.euractiv.com/section/freedom-of-thought/opinion/europe-has-an-islamophobia-problem-whos-going-to-stop-it/

4 FRA (2020), Fundamental Rights Report – Opinions, p. 7

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The principal aim of this thesis is to answer the following question through descriptive, evaluative and comparative research:

‘Could neutrality policies form an obstacle to the free movement of workers,

guaranteed by article 45 Treaty on the Functioning of the European Union (TFEU), as a non-discriminatory measure restricting market access?’

The research considers the complexity of reconciling the Achbita judgment with the legislative context in which it exists. Literature on this topic shows consensus on technical errs made in the judgment, and unalignment with existing standards.6 This thesis considers

that ‘neutrality’ constitutes a legal vacuum in which Muslim women are subjected to prohibited discrimination. Sociological and political context are used to adduce possible motives of the Court, emphasizing the necessity of changing the precedence of the principal case.

The cases analyzed are selected for their relevance for the comparison and value as indicators of scope or interpretative standards. The thesis aims to motivate a new approach towards neutrality, in line with EU law.

Chapter 1 descriptive research of the legislative context surrounding the case, on the basis of legislative texts. A caselaw analysis of the scope and application of

non-discrimination law, including Achbita, follows. The Opinions of the Advocate Generals in the Achbita and Bougnaoui cases are evaluated on technical reasoning and arguments. This produces an overview of the standard method of application applied by the Court, whether extensive or narrow interpretation is considered and how stringent justifications are reviewed. The research question implies that the current precedent should be overruled, to that end this chapter offers the motivation for that presumption, which relies on the argument that the case is technically incompatible with the existing norms and effectiveness of EU law and shows possible motives that result from political pressure or prejudices.

6 Examples include: Henrard, K., U. Belavusau. EU Anti-Discrimination Law Beyond Gender, Bloomsbury Publishing, 2018; Alidada, K. Religion,

Equality and Employment in Europe, Bloomsbury Publishing, 2017; B. Khader, Muslims in Europe: Construction of a “Problem” in: Acemoglu, D. et

Chapter two portrays the legislative framework of article 45 TFEU7. Evaluative and

descriptive research based on caselaw and literature produces the personal scope of workers, the rights and prohibitions of 45 TFEU, including the possibility of horizontal direct effect, possible justifications and the review of the Court. These are considered insofar as they are relevant to produce an answer to the research question: whether, within this framework, neutrality policies are conditions of work, constitute a breach, and how proportionality and legitimacy would be assessed. The outcome legitimizes the choice of comparative research. The sources used primarily consist of caselaw, Opinions of Advocate Generals and EU documents and reports.

Chapter three is both evaluative and comparative. Within the framework of free movement of workers, neutrality policies are evaluated as potential breaches of article 45 in fictional situations, drawing inspiration from the reasoning of the Court and the concept of the market-access approach. Most importantly, the stringent review of the Court is applied to assess compliance of neutrality with a legitimate aim in the general interest, proportionality and subsidiarity, on the basis thereof a conclusion can be drawn to answer the research question, can the current precedent be overturned within the field of free movement law?

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This chapter lists the applicable law in the Achbita8 case and interpretation and background

thereof. The case was ruled under the ambit of EU non-discrimination law9, articles 1, 2 and

4 Framework Directive 2000/78, 10 of the Charter of Fundamental Rights, and 9 European Convention of Human Rights.10 The case answered whether a blanket-ban on political,

philosophical and religious manifestation constituted discriminatory treatment prohibited by the Framework Directive.

The Framework Directive facilitates the principle of equal treatment in employment, it prohibits discrimination on grounds of religion or belief, disability, age or sexual

7 The Directives are considered briefly, but article 45 TFEU is used for this framework. 8 Achbita, 2017.

9 EU non-discrimination law refers to the Framework Directive in this thesis, as the other sources of non-discrimination offer different levels of

protection.

10 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 (hereinafter

orientation in employment.11 The non-discrimination principle reflects the founding

principles of the European Union (EU) as well as various instruments of international law, and emphasizes its necessity to achieve a high level of employment, economic integration and battle social exclusion throughout the EU.12 The same principles are found in articles 2

and 3 of the Treaty on the European Union (TEU) indicating that non-discrimination constitutes a vital part of the of the EU legal order and its progression towards a tolerant, pluralistic union striving for a high level of employment.13 In many ways, discrimination is

antithetical to the values and objectives at the center of EU law. Reducing discrimination benefits both the EU, its citizens and the Member States.14 The principle of equal treatment is

therefore woven into the structure of the Treaties, contained in the Charter, and applicable as a general principle of law.15

The Framework Directive contains an absolute prohibition for direct discrimination, but allows some lenience for indirect discrimination.16 Indirect discrimination can be justified

if a measure pursues a pressing need of the general interest, through means that are

considered appropriate and necessary.17 This well-known formula of justifications opens the

door for a wide range of aims governed by the context and circumstances of the case.

Different treatment on the basis of a characteristic of the grounds in article 1 is allowed only on the basis of the express exceptions, and genuine occupational requirements of article 4 (1).18

Qualifying direct discrimination is done by considering the metrics used to

differentiate, which often explicitly relate to a protected ground.19 Consider the following

measure: a company requires employees not to show any visible indications of same sex

preference to project neutrality. The measure undeniably targets a group based on a protected

ground, visible at first sight. Some employees could feel pressured to conceal their identity, conform to a standard they might be uncomfortable with, and pretend their partner is a friend at work.20 The comparator group, consisting of heterosexuals, would not be affected at all, or

barely.21 Indirect discrimination seems neutral and applicable to everyone, but produces a

11 Id. preamble rec. 9-12. 12 Id. rec. 1-5

13 TEU, art. 2-3.

14 TEU, preamble, recital 12

15 European Charter of Fundamental Rights (Charter), art. 20-21, 23; Case C-144/04, Werner Mangold v. Rüdiger Helm [2005] E.C.R. I-9981 16 Framework Directive, article 2 (b)

17 Id.

18 Framework Directive, art. 4(1)

19 C. Tobler (2008), Limits and potential of the concept of indirect discrimination, Luxembourg: Office for Official Publications of the European

Communities, p. 48, DOI: 10.2767/56607

20 Homosexual identities are often stereotyped or compared to heterosexual gender norms which presuppose ‘masculinity’ and ‘femininity’ are

mutually exclusive. To that end, read: Imitation and Gender Subordination by Judith Butler

similar effect of disadvantaging a group with the protected characteristic.22 A recruiter

requiring that candidates are at least 1,70m would create a disadvantage for women, who are often shorter and would be less likely to fulfill this criteria.

The correct classification is crucial for the affected party, where indirect discrimination is concerned, article 2 (2)(b)(i) exempts such a measure if it pursues a legitimate aim through appropriate means, and is proportionate.23 Justifying different

treatment on the basis of a character related to a protected ground, requires a much higher standard.24

Finally, fundamental rights that correspond with the rights in the ECHR must be interpreted as containing the same scope and meaning, according to the Charter.25 The

freedom of religion26 should therefore grant the same protection as article 9 of the ECHR,

which includes the manifestation of religion in public spaces.27

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This chapter illuminates the scope and applicability of nondiscrimination law, a few cases are considered. The first case concerns the scope of the Framework Directive. The Coleman28

case was brought by a mother who suffered unfavourable treatment by her employer after giving birth to a disabled child. Considering her claim, the Court found no reason to interpret the scope of the principle of equal treatment and the ratione personae thereof, strictly.29

Doing so, it reasoned, would be liable to reduce the effectiveness the Directive.30 In Feryn31,

an employer publicly stated that he would not hire ‘immigrants’, although no identifiable complainant existed the Court considered that a statement as such would dissuade candidates from applying, and therefore qualified as direct discrimination on grounds of race/ethnicity under Directive 2000/43.32 The same is true when such statements emanate from employees

without recruitment capacity33.

In Maruko34 a widower applied for a survivor’s pension after his partner passed but

was denied, their registered partnership did not qualify as marriage, although this was not

22 C. Tobler. (2008), p. 48. 23 Framework Directive, 2(2)(b)(i) 24 FRA (2010), p. 43.

25 Charter, art. 52(3).

26 Charter, art. 10; ECHR, art. 9.

27 See: Council of Europe, Guide on article 9 of the ECHR.

28 Case C-303/06, Coleman v. Attridge Law and Steve Law [2008] ECLI:EU:C:2008:415 29 Coleman, p. 46.

30 Coleman, p. 50-51.

31 Case C-54/07, CGKR v Firma Feryn [2008] ECR I-05187 32 Feryn, p. 23, 25.

33 Case C-81/12 Asociaţia ACCEPT v. Consiliul Naţional pentru Combaterea Discriminării, ECLI:EU:C:2013:275. par. 47 34 Case C-267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [2008] ECR I-01757

possible for same-sex couples. He claimed discrimination on grounds of sexual orientation. The Court interpreted the pension as ‘pay’ in context of article 141 TEU, preventing that the pension was excluded on the basis of recital 13 of the preamble.35 Recital 22 excludes

benefits of marital status the scope of the Framework Directive, but Court applied circular reasoning by considering that civil status might be a Member State competence, but Member States must act in accordance with EU law when exercising that competence and therefore the exclusion could not preclude the application of the Directive.36 The Court gave clear

guidance for the referring court in the direction of finding that direct discrimination on the ground of sexual orientation had occurred, and should be always be considered to occur when different treatment is based on marital status.37

The Court often interprets the scope of the Framework Directive extensively, while the limitations have also been interpreted restrictively. In Egenberger38, an applicant applied for

a vacancy posted by a religious charity, which required church membership. She was not hired and filed a claim for discrimination on grounds of (non)religion. The charity relied on article 4 (2) which was transposed beyond its actual scope into German law, precluded strict judicial review, the charity itself reviewed whether the conditions constituted a genuine occupational requirement. The Court in this case read 4(2) in light of 47 of the Charter to ensure judicial protection, and considered article 21 had direct horizontal effect, contrary to article 51.39 The Court considered the absence of independent review to reduce effectiveness

of the Directive.40 It outlined the objective criteria of 4(2), which should apply exceptionally

and required a fair balance be struck between both interests.41 The meaning of ‘genuine,

legitimate and justified’ ‘depends on an objectively verifiable existence of a direct link

between the occupational requirement and the activity, following either from the nature of the activity or else from the circumstances in which the activity is carried out.’42 Proportionality

was necessary to ascertain whether a ‘probable and substantial risk of causing harm to its ethos or right of autonomy’ existed that justified imposing the exemption, subject to review by a court. Article 4(2) did not mention proportionality, but it applied as a general principle.43

In comparison, there was no mention of a general principle of proportionality in Achbita, neither were her interests remotely considered or even ascertained, whereas a

35 Maruko, p. 46, 56 36 Maruko, p. 59-60. 37 Maruko, p. 71-73.

38 Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung, [2016] ECLI:EU:C:2018:257 39 Egenberger, par. 47-49

40 Id. par. 46 41 Id. par. 50-53 42 Id, par. 62-63 43 Id, 62-68.

possible burden for the employer considering a different position for her, was substantial enough to justify dismissal.44

In FOA45 the Court ruled that obesity could apply as disability if certain requirements

are met.46 Finally, in Wolf 47 an age limit for firefighters, based on physical capacities related

to age and substantiated with scientific evidence, was considered a genuine occupational requirement.

A few things can be deduced from the caselaw. The first observation shows that the Court uses interpretative mechanisms to broaden the scope and protection. Examples include discrimination by association/discrimination by abstract, horizontal direct effect of the Charter and application of general principles of law.48 The second observation shows that the

principle of effectiveness is applied to motivate extensive interpretation. Third, in case of a fundamental rights clash, the Court requires that interests be weighed to strike a fair balance. As far back as in the Johnston49 case, a stringent approach can be seen in cases where

differentiation takes place. The Court requires not only sound reasoning when considering justifications, it requires subsidiarity and proportionality to be fulfilled. The approach taken in these cases ensures that the protection of the Framework Directive is effective, allows recourse to judicial review, and provides concrete guidance for referring courts.

The contradictory approach taken in Achbita is problematic on several grounds, some of these relate to reduced legal certainty and effectiveness, but beyond the legal realm the human cost must also be considered. A-G Poiares Maduro formulated the moral values underlying the principle of equality strikingly.50

To determine what equality requires, recall its underlying values of human dignity and personal autonomy. Human dignity requires at the bare minimum the recognition of each individual’s worth, their life is valuable by virtue of their humanity, and no life is less valuable than another - Individuals and political institutions must not act in a way that denies the intrinsic importance of every human life.’51

The deferential approach taken by the Court created a precedent of which the effects go beyond the Achbita case. National courts have previously ruled in favor of applicants in similar cases throughout the EU, but it is unlikely that this will still be the case.52

Diminishing the visibility of minorities happens at the cost of human dignity and more importantly, tolerance.53

44 Je Suis Achbita!, International Journal of Constitutional Law, (2017) Volume 15, Issue 4, pp. 879–906, https://doi.org/10.1093/icon/moy001 45 Case C-354/13, FOA v KL [2014] ECLI:EU:C:2014:2463

46 FOA, 53.

47 Case C-229/08, Colin Wolf v Stadt Frankfurt am Main [2010] ECLI:EU:C:2010:3 48 Feryn, Egenberger, and see: Case C-144/04, Mangold [2005] ECR I-09981

49 In Case 222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, [1986] ECR 01651 the Court did not accept the

argument that female police officers would not be trained to handle guns in order to protect them from physical harm, when no evidence could be provided that men do not face the same risk.

50 Coleman, Opinion of AG Poiares Maduro 51 AG Poiares Maduro, par. 8-10.

52 BVerfGE 138, 296; BGBl 2015 I 429; A.R. 11/2142/A

53 Walzer (1997) sees different meanings of tolerance, one touches upon the respect for personal autonomy: ‘from a moral stoicism: a principled

1.3

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Samira Achbita (applicant) had been employed as a receptionist by G4S for three years, she was employed for an indefinite period. As a Muslim, she decided to start wearing a headscarf to work, and notified her employer of her decision. G4S confronted her with an unwritten policy that prohibited religious, philosophical and political symbols, to project neutrality. This policy was unwritten, but eventually led to the dismissal of Ms. Achbita for noncompliance. The case boiled down to the question of whether the neutrality policy was compatible with the Equality Directive: whether it directly or indirectly discriminated against religious employees, and if so, could it be considered that an interference was justified? The applicant relied on article 2(2)(a) of the Framework Directive. The freedom of religion of article 10 Charter is equal to article 9 ECHR, which protects the forum internum as well as the forum

externum. Manifestation of religion is thus protected, albeit subject to restrictions. An act that

is intimately linked to religion, falls within the protection of article 9.54

On distinguishing between direct and indirect discrimination, direct discrimination often explicitly mentions or relies on a protected ground.55 The contested policy relies on an

explicit, protected characteristic: visible symbols of a religious nature. The comparator group would have to consist of atheists, who are not affected by this rule. Indirect discrimination on the basis of religion could be considered if the policy prohibited head garments.56 In the present

case, direct discrimination is obvious.

The correct classification of the policy as directly discriminatory would have required G4S to justify the measure as constituting a genuine occupational requirement within the context and specific nature of the activity pursued, requiring necessity and proportionality, and only exceptional application of 4(1).57 The Court refers to art. 16 Charter and considers the

freedom to conduct a business legitimizes a desire to project neutrality.58 This policy should

be genuine, systematic and consistentally applied.

The unwritten policy of G4S, at no earlier point in time having been codified, could have indicated that the issue at hand was related to a bias towards the headscarf. There is a noticeable

54 Council of Europe, Guide on Article 9 of the European Convention of Human Rights, p. 11/12. Available at:

https://www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf

55 C. Tobler (2008), p. 29 56 Id.

57 C-416/13, Vital Perez [2014] ECLI:EU:C:2014:2371, p. 44. 58 Achbita, p. 38.

absence of any consideration of the applicant’s interests, a general principle of equal treatment or proportionality, or even her right to effective judicial review. Comparing this to a Dutch Equal Treatment decision on a similar case: neutrality is legitimate, but with no proof substantiating that a headscarf is incompatible, less intrusive means should be considered. 59

The most important issue that arose from the Achbita case however, is the established inequality between the employer’s interest and that of the employee. While the case revolves around anti-discrimination legislation, it is the employer who prevails in this case. The judgment accredits weight to the importance of the employer’s interest and his right under article 16 of the Charter, as well as a right not to be unduly burdened when considering the employees faith.60 The construction of the case has become a clash of fundamental rights, the

right to conduct a business, and the freedom of religion in plain sight, rather than a right to equal treatment.

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In this chapter, the ECHR is discussed insofar the interpretation of fundamental rights and caselaw are relevant. By virtue of 52 (3) Charter, the rights of the Charter are equal to the Convention.61 On the scope of freedom of religion, one case stands out in particular: Eweida.62

The Court referred to paragraph 94 of the case in Achbita, stating that freedom of religion is subject to limitations.63 Although the reference was not motivated and passed

briefly, Eweida is remarkably relevant for the present judgment. The case concerned an employee who wore the cross as a stewardess, and was asked to cover it in compliance with the ban on religious symbols, which she refused. Although no article 16 Charter exists in the Convention, the ECHR considered neutrality legitimate.64 It took a very different approach

when it carefully weighed the interests at stake, to ascertain whether the interference was necessary, appropriate, and most importantly, proportional. To that end, ‘necessity’ required either grounds of health or safety, or otherwise a seriousness of self-definition as a religiously neutral company. In contrast, the ECHR regards the value of communicating the religious conviction that stands at the central tenet of their life for an employee as legitimate as well, and worthy of protection. In consideration, an employer wishing to uphold a corporate image,

59 Commissie gelijke behandeling, 22 juni 2001 60 Achbita, 37-38.

61 Art. 52 (3) Charter

62 Eweida v United Kingdom [2013] ECHR 37; in Achita, p. 39. 63 Id.

cannot overrule that value.65 It is furthermore relevant to note that the ECHR brings up the

fact that no evidence was provided, which would be a reasonable consideration.

The ECHR regards religious freedom as ‘one of the foundations of a “democratic

society” within the meaning of the Convention’.66 It plays a vital role in the conception of a

persons identity and view of the world.67 In the words of the ECHR:

‘the pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.’68 and ‘a healthy democratic society needs to tolerate and sustain

pluralism and diversity’.69 The same values as those at the core of the EU legal order are

considered in this case, and not surprisingly. Tolerance, fundamental rights, and equality are inseparable.

The Court referred to the case to ascertain that limitations could be placed on religious freedom, but it failed to read into the requirements to justifiably interfere with this right. The ECHR examined the factual context and consistently applied its scrutiny on interferences being prescribed, legitimate, necessary and proportionate. The Court failed on all these accounts, and more importantly, it did not provide guidance on the substance or the relevant factors to include when ascertaining what these interests are for the employer. Where fundamental rights are concerned, the focus in the Achbita case has not properly shifted away from the corporate interests of an employer.

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This chapter analyses the Opinion70 of Advocate General Kokott (Kokott), which formed the

basis of the principal case. Some important conclusions can be drawn from it. First, the reference to the sensitivity of the subject which she attributes ‘to the influx of third country migrants and how to integrate them.’ As a member of the Court, such a bias is problematic. The influx of third country migrants is related to war, degradation of living conditions caused by persisting poverty, and persecution.71 The question of integration is ambiguous, many

displaced persons have established themselves, adapted to new languages, opened businesses, taken up jobs and adapted to their new environment. Integration however, is a two way street.

65 Id., 94

66 Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A 67 Eweida, p. 79

68 Id. p. 79 69 Id. p. 94

70 Achbita, Opinion of AG. Kokott, 71 UNHCR. , p. 8.

Framing it as a one-way street is problematic, as Klarenbeek writes, the latter approach denies the ‘insiders’ role in adjusting to the newcomers:

‘integration portrayed as a one-sided affair: outsiders need to integrate with insiders, not the other way around. If outsiders do not identify with insiders, outsiders have an integration problem. If insiders do not identify with outsiders, it is still the outsiders with an integration problem’.72

The fundamental question according to Kokott is the following:

‘Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the

more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.’73

This approach indicates a lack of regard for the applicant as an autonomous person, whose rights are worthy of protection. The correct approach would frame the situation as the right of an EU citizen not to be discriminated against on the basis of her religion. This approach is also incompatible with the universality of human rights law.74 Neither the Charter nor the European

Convention of Human Rights contain a limitation on the amount of minorities that should be tolerated within a State.75 Yvonne Donders argues to the contrary: cultural rights, equal

treatment and non-discrimination are reconcilable.76 Human rights grant people a minimum

level of basic rights that are necessary to ensure human dignity and freedom within a State without distinguishing on the basis of religion, ethnicity, nationality or any other protected ground.77

Moreover, the central question according to A-G Kokott touches closely upon a similar question: whether, and at what point the anti-Islam sentiment that is present within the European States should be adhered to. Categorizing Muslims as a religious minority that are alien to the state and incompatible with its culture, are deemed to constitute steps towards acts of exclusion and discrimination of Muslims by the anti-racism Commission of the Council of Europe.78 While many European States have taken an anti-pluralistic stance, contrary to the

72 L. M. Klarenbeek, (2019), p. 9. 73 Opinion of AG Kokott, par 1-3. 74 Y. Donders, (2010) p. 16

75 ECHR: all persons within the jurisdiction of the contracting states, see for similar wording: the Universal Declaration of Human Rights art. 2, International Covenant on Civil and Political Rights art. 2.

76 Y. Donders, (2010), p. 17.

77 Y. Donders, & Y. Vleugel. (2016). pp. 323.

78 Council of Europe, Annual report against Racism and Intolerance (2019), p. 7, 8 and 11. Available at:

founding values of the Union, this should not be of influence on the impartiality of the Court.79

Rather, it should be a factor of consideration when the rights of minorities facing exclusion and discrimination on large scale is concerned.80 The applicant should not be viewed as anything

other than an EU citizen whose fundamental right to manifest her religion was interfered with. The notion that minorities can be required to assimilate into the society in which they are present, fails to view the position of the Court and the State as the bearer of positive and negative obligations connected to the human rights that a citizen enjoys.81 Forcing assimilation

through exclusion and legal pressure will lead to marginalization.82

AG Kokott argues that although the act of wearing a headscarf is protected by the freedom of religion, it is a conscious choice, not a physical or personal characteristic and therefore cannot amount to direct discrimination.83 Following this reasoning, the

effectiveness of such protection would be rendered meaningless. Vickers84 compares this to

the consideration that pregnant women do not choose to lose rights either. Reframing acts stemming from religious mandates as ‘modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here’ reduce the scope of non-discrimination and equality law. Furthermore, comparing the impact of the measure between religions is the incorrect application of the comparator group.85 To show similar line

of reasoning: discrimination against people in a same-sex relationship should not be justified by comparing the situation to that of a bisexual person in a straight relationship, this

comparator is not affected at this time, but would be affected after changing partners. A different interpretation would retract from the rationale of non-discrimination law.

Finally, A-G Kokott makes a comparison with a genuine occupational requirement.86

In this context, no reference is made to the clause in the G4S policy that prohibits ‘giving expression to any ritual arising from beliefs’.87 This means that beyond the neutrality towards

customers, certain acts such as prayers or fasting are also prohibited by the policy. A genuine occupational requirement must be interpreted strictly and only in very limited circumstances, be accepted as legitimate, indicating that the standard is high and does not allow for leeway

79 Y. Donders. (2020). p. 52-71.

80 An example of this anti-Islamic sentiment is the Austrian ban on headgear in primary schools targeting Muslim girls, the government has clarified

that it is meant to target Muslim girls, yarmulkes and patkas are exempted: https://www.dw.com/en/austria-bans-muslim-headscarf-in-primary-schools/a-48756057

81 Assimilation presumes a newcomer is willing to dispose of his cultural identity completely, whereas integration can only occur when dominant

society is open and welcoming to cultural diversity: J. Phillimore, Restrictionalism versus Liberalism? In: S. Momodou, (2009) Europe’s Established

and Emerging Immigrant Communities: Assimilation, Multiculturalism or Integration, Trentham Books p. 50-51

82Parekh, B. (1995) p. 431-438. 83 Kokott, p. 112 – 117.

84 L. Vickers, ‘ECJ Headscarf Series 2: The Role of Choice; and the Margin of Appreciation’, (Strasbourg Observers, 8 September 2016) Available

at: https://strasbourgobservers.com/2016/09/08/blog-series-the-role-of-choice-and-the-margin-of-appreciation/

85 FRA, Discrimination Categories and Defenses, p. 29-31.

86 Kokott, par. 64 87 Kokott, par. 17

where fundamental rights are restricted by this criteria.88 It would therefore not seem plausible

that the employer is granted a great amount of discretion in this field, where dress codes do not influence the capability or the quality of the work concerned, nor relate to safety or hygienic measures, but restrict the employees fundamental freedom.

A-G Kokott considers otherwise, and places the interest of the employer at a standard that trumps the freedom of religion in every sense, as long as it does not see to the forum

internum of the employee. The Opinion offers little regard for the interpretation and protection

granted by the ECHR. The question arises whether this Opinion, that is meant to guide the Court on resolving the matter at hand, has influenced the interpretation in such a way that the balancing act has been tilted towards the benefit of the employer in a substantial way.89

1.6

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This chapter discusses the case rendered on the same day of the principal case: Bougnaoui90.

A-G Sharpston presents a thorough review of compatibility of neutrality with the Framework Directive and principles of subsidiarity and proportionality. Her Opinion upholds the standard of protection of the Court.

The Bougnaoui case concerned a dismissal related to a customer presenting a problem with the headscarf worn by the employee, presumably linked with her religious preference.91

In this case, no consistent and systematic policy existed that prohibited religious symbols, customer preference was the explicit motivation.92 Direct discrimination is easier to establish

in this case, the matter was specifically connected with the headscarf. However, in Achbita, the issue was also presented in connection to the headscarf worn by the employee, the policy had not been implemented at any time before the matter concerning the headscarf had presented itself. While the Bougnaoui case was triggered by a customer preference, the Achbita case might have indicated an employer’s preference of the same kind.93

The fundamental difference in how these cases have been concluded does not rectify that companies can uphold a neutrality policy that imposes a blanket ban on the wearing of religious symbols or garments. Rather, Bougnaoui excludes the possibility to justify

88 C-416/13, Vital Perez [2014] EU:C:2014:2371, par. 47

89 Kokott, par. 94, deems such a policy absolutely necessary, no evidence is required to this end however. 90Case C-188/15, Asma Bougnaoui and (ADDH) v Micropole SA, [2017] ECLI:EU:C:2017:204

91 Bougnaoui, par. 32

92 Bougnaoui, par. 25

93 The GCC found that religious symbols on employees did not imply a lack of neutrality, nor proselytizing behavior BVerfG, Case No. 1 BvR R

dismissals related to direct discriminatory preferences of customers, but does not preclude imposing such a policy when no mention of customer preferences is made.94 A reference to

the Feryn95 case should point out that a discriminatory customer preferences towards

religious employees should not guide a company recruitment policy, nor should it uphold employment conditions that dissuade certain groups from applying.

Whether this might be the case, can be incurred when the minority concerned in the cases raised before the Court are viewed in their context, and the effect of the policy on the position of the employees concerned. The Bougnaoui case therefore provides no relief for the Muslim employee who is targeted by a neutrality rule within a state where anti-Islam

tendencies are present in alarming rates. Such a rule may be instated under the pretense of neutrality towards customers, but the inspiration for that neutrality may still be fueled by discriminatory preferences that are present in the state concerned.

A-G Sharpston takes a different approach compared to AG Kokott.96 She considers

that the inextricable nature of religious preference and mandates can be applied differently among adherents of a religion. Not all Muslim women wear headscarves for example, and not all Jewish men consider that the kippah is in fact a religious mandate.97 She considers that the

choice of religious expression depends on the autonomy of the employee, as it constitutes an important facet of human dignity.98 This categorization aligns with the interpretation of the

freedom of religion by the ECHR, and positions the employee as an autonomous party with a vested interest that deserves recognition and protection.99

Another critical point that is made by Sharpston in paragraph 91 concerns the

requirement that the justification of article 4 (1) is prescribed by the law of the Member State, and cannot simply be instated by a company that wishes to restrict a fundamental right in any way.100 Furthermore, a restriction may not constitute a blanket ban on all activities pursued

by a given employee, it must be subjected to intense scrutiny to truly assess whether, in the circumstances and context of the activities concerned, it fulfills the requirements of a genuine and determining occupational requirement.101

The conclusion drawn in is that a blanket-ban on religious symbols cannot constitute a genuine occupational requirement, not in light of a neutral ban, nor as the result of a customer

94 Bougnaoui, par. 32.

95 Feryn [2008], par. 29.

96Bouanoui, Opinion of AG Sharpston

97 O. Slapak and E. Juhasz (2005). Jewish Dress. In Encyclopedia of Clothing and Fashion, Charles Scribner's Sons. p.284-288, Available at:

https://link-gale-com.proxy.uba.uva.nl:2443/apps/doc/CX3427500332/GVRL?u=amst&sid=GVRL&xid=4e16ec77

98 Sharpston, p. 29, 30, 33, 73-74.

99 Compare paragraph 78 to paragraphs 44-49 of A-G Kokotts opinion. 100 Id. p. 91.

preferring that employees refrain from wearing a veil.102 The consideration of indirect

discrimination starts at paragraph 109 and portrays the merits of the Achbita case quite strikingly. The considerations present an understanding of the substantial rights and interests of employees that must be weighed against the interest of the employer. The freedom to conduct a business is acknowledged, not as an absolute right, but as a right that is subject to limitations when it clashes with the fundamental rights and freedoms of others.103 Through

her reasoning, A-G Sharpston presents an approach that balances the interests concerned. By constructively portraying the substance of the rights in question, the limitations that may be imposed as legitimate aims and reasons to do so can be ascertained by national courts.

The lack of caselaw regarding this subject matter makes such guidance for national courts valuable and essential to ensure the effectiveness of EU law. The Opinions and judgments in Achbita and Bougnaoui portray an alarming discrepancy in the understanding of fundamental rights and equality law in the face of this subject matter.

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The term ‘intersectionality’ first appeared in 1989 in a paper written by Crenshaw. She used it to underline the experience of black women who are subjected to multiple types of

discrimination by virtue of their intersecting identities as women of color.104 The concept has

since been introduced into the framework of equality and human rights law. A few examples include a definition by the Commission on the Convention of Rights of People with

Disabilities: ‘Intersectional discrimination refers to a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable and thereby expose relevant individuals to unique types of disadvantage and discrimination’.105

Muslim women in Europe are exposed to gender discrimination combined with other forms of exclusion, aggression, stereotyping and inequality based on (perceived) religion and ethnicity.106

They have consistently been stereotyped as a homogenous group of weak and oppressed women who support domestic violence, homophobia and gender inequality, lacking autonomy and agency. They are linked to ‘terrorism’ and considered a ‘threat to

102 Id. P. 108 103 Id. p. 112-119.

104 Crenshaw, K. "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and

Antiracist Politics," University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8.Available at: http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8

105 CRPD Committee, General Comment No 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (2018). See for example, para 19 106 European Network against Racism (2016), Forgotten Women: the Impact of Islamophobia on Muslim Women, p. 3-4.

Western values’, considered as dangerous and out of place within Europe.107 This stereotype

has been enforced through continuous media portrayal and anti-Islam political discourse within Member States. Throughout the EU, legislation has been enacted that prohibits Islamic garments. These measures, ranging from burqa bans to bans on headscarves in primary schools and even universities, diminish the visibility of these women in public and enforce the view that they are voiceless victims who cannot act in their own interest.

One consequence of this view can be seen in ECHR judgments, where a reflection of this stereotype is noticeable in several cases concerning the headscarf. In Dahlab 108, the

ECHR stated that the headscarf was imposed on women by a religious precept that was difficult to reconcile with principles of equality between men and women, tolerance and non-discrimination, and that it might have proselytizing effect on others. This was reiterated in

Sahin 109, where the mere sight of a woman wearing a headscarf was considered a threat to

democracy, equality and secularism.110 These judgments were not based upon proof, nor the

circumstance of the case, and most likely present the existence of a stereotype.

Judge Tulken’s dissenting opinion challenged this conclusion, she stressed that the Court could not base this view on the facts of the case, the persons concerned, nor on any other form of evidence, and more importantly, that such a generalizing view may not be imposed upon women by a Court.111 Over the years, the ECHR softened this stance and

finally in S.A.S.112 contravened this view:

‘The Court is aware that the clothing in question is perceived as strange by many of those who observe it. It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. Moreover, it does not have any evidence capable of leading it to consider that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others.’113

Although a burqa-ban was upheld in the case, the view of the Court progressed significantly since 2004. In their dissenting opinions, Judges Nussberger and Jäderblom emphasized that the arguments raised in favour of such a ban were based on presumptions, not facts, and were rejected by the applicant.114 In their words:

107 See footnote 37 ENAR, p. 3.

108 Dahlab v. Switzerland, Application no. 42393/98, ECHR 2001-V. 109 Sahin v. Turkey, Application no. 44774/98, par. 109.

110 Sahin, par. 111

111 See the dissenting opinion of Judge Tulkens in Sahin, par. 10-16 112 S.A.S. v. France, Application No. ECHR 695.

113 ‘’ Id. par. 120.

‘even assuming that such interpretations of the veil are correct, it has to be stressed that there is no right not to be shocked or provoked by different models of cultural or religious identity, even those that are very distant from the traditional French and European lifestyle’.115

Still, the ECHR has not offered much solace for Muslim women, politically sensitive issues often lead to the Strasbourg Court deferring to the margin of appreciation of Contracting States.116

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In the face of existing prejudices, marginalized groups who are portrayed by them remain in the shadows where they cannot defend themselves as autonomous beings, whose religious preference is not a weapon of indoctrination nor a symbol of their oppression.117 The ECHR

reflected existing prejudices about Muslim women in its judgments, but rectified these in S.A.S.

The Court and AG Kokott framed the Achbita case as a question about the limits of pluralism and tolerance towards minorities, rather than a restriction of fundamental rights. This approach disregards the human dignity that depends upon the enjoyment of universal human rights. Furthermore, the approach in Achbita is inconsistent with the Court

interpreting the Framework Directive extensively. The legal vacuum that now exists in the form of neutrality policies, enables the exclusion of Muslim women from the employment market through blanket-bans on religious symbols, that might be based on prejudices. This is contrary to the principles of uniformity of EU law and undermines the effective application of equality law throughout the Union.

115 ‘’ Id

116 Letsas, G. A Theory of Interpretation of the European Convention of Human Rights, Oxford University Press, 2007, doi:

10.1093/acprof:oso/9780199203437.001.0001. p. 120 and further.

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Throughout the EU, workers are granted the right to take up employment and for that purpose, settle within a Member State other than their own. This fundamental freedom finds its legal basis in article 3 (2) of the TEU and articles 20 and 45-48 TFEU, as well as

Directive 2004/38/EC and Regulation (EU) No 492/2011.118 It ensures that migrant workers

are treated as equals to nationals in host Member States in terms of employment conditions, and falls within the objective of facilitating full employment and prosperity throughout the Union.

Simultaneously, this freedom has been contested throughout the years and regarded as a threat to nationals who face competition in their labor markets. In order to maintain the effectiveness of this right, the Court has developed a considerable amount of caselaw on potential breaches of this freedom, ranging from discriminatory to non-discriminatory measures. The judicial review of contested measures is stringent when allegations of discriminatory breaches are made in the realm of free movement law, to ensure that Union law is consistent and effectively applied. The opposite is true for equality law, which has not developed in a similar consistent and progressive way, but has been applied restrictively in some cases, and extensively in others.119

The possibility exists that the disparities that emerge on account of neutrality policies eventually leads to a claim under article 45.120 A caselaw analysis in this chapter will

delineate what is caught by article 45, and how such breaches may be justified. Reg 492/2011 is the lex specialis of article 45, this thesis will refer to article 45 however, as the rights derived from both should be considered equal.

118 Consolidated Versions of the Treaty on the European Union and the Treaty on the Functioning of the European Union [2016] OJ C 202. 119 For extensive application, see cases Egenberger, Coleman

restrictive application can be seen in the cases C-443/15 Parris v. Trinity College Dublin, ECLI:EU:C:2016:897; Achbita; Bougnaoui.

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In Lawrie Blum121 the Court delineated the definition of ‘worker’, the embodiment of who

enjoys protection under article 45 TFEU. It applies to EU nationals in a Member State other than their home State and is defined as: ‘any person performing for remuneration work the nature of which is not determined by himself for and under the control of another, regardless of the legal nature of the employment relationship.’122 This broad interpretation generally

applies to anyone who is in employed under contract and receives pay in return.123 Lastly, the

application of this regime requires that an EU citizen moves to another Member State to find employment or returns to their own Member State after having exercised this right, known as the inter-state element.124

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The Court established that by virtue of its primacy, primary law containing an obligation that is precise, clear and unconditional and does not call for additional measures, can have direct effect in van Gend & Loos. 125 Direct effect allows citizens to rely on such rights in national

courts against the State, which risks liability by incorrect or non-implementation of Union law.126 In the absence of direct effect, national courts must interpret provisions in accordance

with EU law insofar possible to ensure compliance and conformity.127

Can the same be said of private relationships, between citizens and private entities? The question of horizontal direct effect is particularly relevant for a claim against an

employer. The Court has affirmed the possibility of horizontal direct affect in several cases, first and foremost in Defrenne128 where it declared that: ‘the fact that provisions of the Treaty

are addressed to Member States did not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down.’129

Direct effect of article 45 was emphasized in van Duyn130, and horizontal application in

121 Case 66/85 Lawrie Blum [1986] ECR 2121; 122‘’ Id. par. 12, and case 53/81, Levin, ECR 1982 -01035

123 Case C-456/02, Trojani v. Centre public d’aide, ECR 2004 I-07573. 124 Case C-370/90 Surinder Singh [1992] ECR I-04265, par. 19.

125 The doctrine of direct effect follows from C-10/61, Van Gend & Loos, ECLI:EU:C:1963:1 126 Cases C-6 & 9/90 Francovich and Others [1991] ECR I-5357

127 Case C-106/89, Marleasing v La Comercial Internacional de Alimentacion, ECR I-04135 128 Case 43/75 Defrenne v Sabena [1976] ECR 455

129 Ibid, par. 31.

Angonese131. The Court further clarified that measures in any form may be challenged, not

only state measures.132 This confirmation of horizontal application and direct effect enables

citizens throughout the EU to rely on the obligations arising from article 45 TFEU in court against their private employers.

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Judging by its wording, the prohibition contained in article 45 (2) TFEU seems to apply to direct discriminatory measures. The Court began extending the prohibition contained in paragraph 2 in 1973 in Sotgiu133. In this judgment, the concept of covert discrimination was

construed and indirectly discriminatory measures were classified as breaches of the non-discrimination rule. Such measures do not discriminate on grounds of nationality, but they apply to the detriment of migrant workers, parallel to the concept of indirect discrimination.

Soon after, in O’Flynn, the Court added another element to the prohibition: ‘a provision must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers, and there is a risk that it would place the former at a disadvantage’.134 This nuance clarified that negative effects do not require demonstration, as

the Court clarified that the mere possibility of a measure having detrimental effect on migrant workers is enough to establish a breach.135

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The prohibition of non-discriminatory measures and the novel market-access approach emerged in the Bosman136 case, this case fundamentally broadened the scope of the

prohibition of paragraph 2. The crux of the case revolves around the notion that rules which do not discriminate by law or fact, on the basis of nationality, may be caught by article 45 (2) TFEU if: ‘they affect the player’s opportunities for finding employment and the terms under which such employment is offered’.137 The contested measure in the case was set by UEFA,

131 Case C-281/98 Angonese [2000] ECR I-4139 par. 32-36.

132 Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405 133 Case 152/73 Sotgiu v. Deutsche Bundespost [1974] ECR 153. par. 11. 134 Case C-237/94 O’Flynn v. Adjudication officer [1996] ECR I-02617

135 Recently reaffirmed in C-496/15, Eschenbrenner, ECLI:EU:C:2017:152, par. 36. 136 Case C-415/93 Bosman [1995] ECR I-4921

and required teams pay a transfer fee for players wishing to change teams. The Court took this opportunity to emphasize that the rules governing the freedom of movement are intended to facilitate the pursuit of economic activity by citizens throughout the Union, and preclude measures which place migrant workers at a disadvantage in this pursuit, or hinder their access to the market in any way.138 This approach went beyond the discrimination approach to

ensure that no creative obstructions remain, nor any other obstruction to facilitate the internal market.139

The Bosman cased was not one of its kind, in the cases Kraus140 and Terhoeve141 the

Court did not question discriminatory effects but assessed whether the measures were liable to deter free movement rights or rendered them less attractive.142 In Casteels143 the Court

reiterated that the application of article 45 TFEU is not limited to prohibiting discriminatory practices, but precludes any measure that renders the free movement of workers less

attractive.

These cases concluded that the prohibited measures of 45 (2) TFEU consisted of discriminatory and indirectly discriminatory measures that were liable to negatively affect migrant workers who had taken up employment in another Member State, as well as measures that did not discriminate in law or in fact, but could form obstacles to free

movement for workers. This applied to non-nationals as well as to nationals who had at some point made use of their free movement rights, and therefore were governed both by the EU regime as the home state regime.

Walloon Government144 exemplifies the breadth of the prohibition, and the weight

accorded to the protection of this fundamental freedom. In short, the contested measure in the case was a care insurance scheme, dependent on residency within one of the autonomous regions in Belgium. The residency requirement was a consequence of the federal structure of Belgium which granted the autonomous regions exclusive competences within their

territories. The rule in question did not discriminate in law or in fact and perhaps even more importantly, workers living outside of Belgium were qualified to receive the insurance

scheme if they worked within the Flemish region. The contested measure also did not exclude anyone from moving to the Flemish region, but it simply did not cover the autonomous

138 Case C-18/95 Terhoeve [1991] ECR I-345 139 Casteels, p. 21-22.

140 Case C–19/92 Kraus [1993] ECR I-01663, par. 36-41. 141 Terhoeve, 44.

142 Inspiration drawn from: Barnard, C. (2012). EU Employment Law. Oxford University Press. p. 163-164. 143 Case C-379/09 Casteels v. British Airways [2011] ECR I-000, p. 22.

regions of Belgium where the Flemish entity had no competence. Still, the Court came to the conclusion that the measure was liable to deter citizens from making use of their free

movement right, if for any reason they would prefer to live in the Walloon region while working in the Flemish region. The residency requirement for the care scheme was therefore considered incompatible with article 45, despite the pressing justifications and nuances that existed in this particular case.

In Graf 145, the Court elucidates that measures may not constitute a breach if their

liability to act as an obstacle is too indirect and uncertain. This would be the case if they were dependent on a hypothetical and future event, a very narrow exemption. A-G Sharpston in her opinion concluded the following:

“-as regards the argument that legislation could have only a marginal effect on freedom of movement, in view of the limited nature of the amount of benefits in question and the number of persons concerned, it need merely be observed that the articles relating to the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited.” 146

In conclusion, the Court has created a strong line of EU defined criteria in its caselaw to ensure the effectiveness, uniformity and consistent application of EU law throughout the Union. In the spirit of this approach: the Court, when it finds that a measure hinders market access or renders the right to free movement less attractive, does not question for whom exactly, nor does it raise the question raised of how many citizens are affected, it merely ascertains that the obstacle is not hypothetical and uncertain, and will find a breach. The free movement of workers has always been one of the core rights and cornerstones of the internal market. It plays a fundamentally crucial role as one of the Treaty objectives and helps

facilitate integration, raise the standards of living, battle unemployment and increase prosperity throughout the Union.

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A measure such as the neutrality policy in Achbita, would most likely be considered

indirectly discriminatory or non-discriminatory but liable to hinder free movement. Measures of this kind may be objectively justified in pursue of a legitimate aim in the public interest, if

145 Case C‐190/98 Graf [2000] ECR I‐493

they are appropriate to ensure attainment thereof without going beyond what is necessary in that pursuit.147 A myriad of legitimate aims may be pursued depending on the context of the

case, as long as they comply with the principles of subsidiarity and proportionality. The rigorousness of the Court’s assessment of such breaches can be inferred from Bosman148 for example, where a legitimate aim was established, but the Court went on to

validate on what basis the fees pursuing this aim were calculated and included in its

examinations all factors that may be relevant: predicting the sporting future of young players, how many of these go on to play professionally, the actual cost borne by clubs, and whether less intrusive means existed to achieve the same result. This mode of conduct is the general approach of the Court, it will not consider a measure validated if its legitimacy cannot be substantiated with solid reasoning based on facts, clearly showing the necessity of the measure and not breaching the proportionality principle. Other examples that illuminate this strictness include the Court’s narrow interpretation of the exemption for public service employment and the caselaw on recognition of diplomas and other certificates.149

Justifications are viewed on a case-by-case basis and are always subjected to a review of subsidiarity and proportionality. The latter principle proves difficult to satisfy, the Court regards the choice of the least intrusive option as fundamental and will actively argue that other measures could have lead to the same result.

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The freedom of movement for workers has been shaping the European Union for over half a decade, and simultaneously, it has been solidified through legislative acts and the Court’s generous interpretation over the years.150 It can be considered as one of the driving forces to

realize many of the Union’s objectives: battling social exclusion, equality between men and women, economic and social cohesion, and the realization of an area without borders where prosperity of its citizens is realized. This is reflected in the preamble of Reg. 492/2011:

‘Freedom of movement constitutes a fundamental right of workers and their families. Mobility of labor within the Union must be one of the means by which workers are

147 Case C-212/06, Walloon Region v Flemish Region, ECR 2008 I-01683, par. 55. 148 Bosman

149 In C-340/89 Vlassopoulou [1991] ECR I-2357 the Court mandated that qualifications and knowledge attained in another Member State must be

examined, requiring a case by case consideration of the facts; In C-149/79, Commission v. Belgium, ECLI:EU:C:1980:297 the strict interpretation of the public service exemption requires two cumulative factors: exercise of powers conferred by public law and duties designed to safeguard the general interests of that State.

guaranteed the possibility of improving their living and working conditions and promoting their social advancement, while helping to satisfy the requirements of the economies of the Member States. The right of all workers in the Member States to pursue the activity of their choice within the Union should be affirmed.’

The Court has therefore interpreted the scope of the freedom extensively, in a number of ways. The first thereof is the broad definition of a worker, leaving very little room for

exceptions. The second is how the scope of the prohibition of discrimination has expanded to include potential covert discrimination as well as non-discriminatory obstacles that might impede market-access or render the freedom of movement less attractive. It furthermore defined the public service exemption narrowly, and requires that justifications for interferences are grounded in solid reasoning based on effectiveness, necessity and proportionality.

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The question raised in Achbita151 centered around the compatibility of the neutrality policy

and the prohibition of discrimination that follows from Directive 2000/78.152 This route

offered no protection for the applicant and furthermore resulted in a legal vacuum. Those facing exclusion in the employment market as a result of their manifestation of religion, are left with no recourse if the employer has followed the dictated construction for a neutrality policy. The existence of such exclusion seems incompatible with the objectives dictated by the Treaties as well as the extensive interpretation of the Framework Directive that the Court had given up to this point.

The Treaties have branded freedom of movement for workers as a crucial component to ensure improvement of living conditions and battle social exclusion, the Charter

guarantees the freedom of religion, fair and just working conditions which respect health, safety and dignity and a prohibition on discrimination.153 In this spirit, it is indispensable that

each citizen enjoys a level of personal autonomy as regards their religious beliefs and

151 Achbita

152 Framework Directive. 153 Charter, articles 10, 21, 31.

manifestations, without being subjected to discrimination or exclusion on the basis of it. Such exclusion leads to deterioration in the quality of life of those presented with an ultimatum: either give up a vital part of their identity and what they view as a moral duty dictated by a higher deity, or be excluded from finding employment and achieving financial independence.

The legality of neutrality policies is already leading to an increase in their prevalence throughout the Union, which could be detrimental for many citizens. A legal comparison of such a ban in free movement law could offer insight on whether recourse can be sought in this regime. This chapter will start with preliminary questions: does a neutrality policy correspond to what is governed by article 45? Could workers in the EU challenge such a measure under the current standards for obstacles? Once affirmed, the Court’s approach to obstacles of free movement can be applied to answer whether article 45 could provide a different outcome for a similar situation.

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The freedom of movement for workers, in substance, grants mobility and prohibits discrimination based on nationality as regards to employment, remuneration and other

conditions of work and employment. Those include among others, access to employment and conditions of dismissal.154 The scope of the prohibition has been discussed in the previous

chapters and includes non-discriminatory measures that could act as obstacles to the employment market of Member States.155 In Meyers the Court defined ‘access to

employment’ as the conditions that govern whether an employment relationship comes to be, as well as all influencing factors to be considered before making a decision on whether to accept a job offer.156 Employment and working conditions are to be interpreted broadly, and

neutrality policies presently can be considered requirements or conditions that govern whether someone will be employed and may remain employed in a company.157 This is

especially true for positions where employees are visible and engage with customers. The neutrality policy upheld by a company such as G4S may have a considerable impact on the labor market, the company operates in all Member States, employing 100.000 employees in Europe.158 It is the largest private employer in Europe and the largest employer

154 Directive 2014/54/EU of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of

movement for workers [2014] OJ L 128/8, article 2 (a) (b).

155 Bosman

156 Case C-116/94, Meyers v. Adjudication Officer [1995] ECR I-2131, par. 22 157 FRA,(2011)