28) Furthermore, for interference with the fundamental right of freedom of religion as laid down in Article 4(1) of the GG to be established, the Bundesverfassungsgericht (Federal Constitutional Court, Germany) requires, in addition to the existence of a legitimate aim, that the external expression of religion must entail a sufficiently specific risk for interests protected by the GG. The referring court states that, in its view, in the light of the significance of the fundamental right to freedom of religion and of the principle of proportionality laid down in Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), it is not enough for the employer to express the wish to appear neutral to customers, without having to suffer an economic disadvantage arising from the lack of neutrality, for the right which it derives from Article 16 of the Charter on the freedom to conduct a business to take priority over the freedom of religion. The referring court explains that it feels that that interpretation is confirmed by the judgment in Bougnaoui and ADDH, in which the Court held that an employer’s willingness to take account of a customer’s wishes to no longer have that employer’s services provided by a female employee wearing an Islamic headscarf cannot be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of Directive 2000/78.

29) Nevertheless, the referring court is prevented from upholding IX’s action because of the Court’s interpretation of Article 16 of the Charter in the judgments in G4S Secure Solutions and Bougnaoui and ADDH to the effect that the employer’s wish for its employees to project religious neutrality is sufficient in itself as objective justification for a difference of treatment indirectly based on religion, so long as that difference of treatment is appropriate and necessary. According to the referring court, WABE has not demonstrated to the requisite legal standard economic losses or a specific risk to the legal interests of third parties which could justify a decision to dismiss IX’s action also pursuant to Article 4 of the GG.

30. It is in those circumstances that the Arbeitsgericht Hamburg (Labour Court, Hamburg) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does a unilateral instruction from the employer prohibiting the wearing of any visible sign of political, ideological or religious beliefs constitute direct discrimination on the grounds of religion, within the meaning of Article 2(1) and 2(2)(a) of … Directive [2000/78], against employees who, due to religious covering requirements, follow certain clothing rules?

(2) Does a unilateral instruction from the employer prohibiting the wearing of any visible sign of political, ideological or religious beliefs constitute indirect discrimination on the grounds of religion and/or gender, within the meaning of Article 2(1) and 2(2)(b) of Directive [2000/78], against a female employee who, due to her Muslim faith, wears a headscarf?

In particular:

(a) Can [indirect] discrimination on the grounds of religion and/or gender be justified under Directive [2000/78] with the employer’s subjective wish to pursue a policy of political, ideological and religious neutrality even where the employer thereby seeks to meet the subjective wishes of his customers?

(b) Do Directive [2000/78] and/or the fundamental right of freedom to conduct a business under Article 16 of the [Charter] in view of Article 8(1) of Directive [2000/78] preclude a national regulation according to which, in order to protect the fundamental right of freedom of religion, a ban on religious clothing may be justified not simply on the basis of an abstract capacity to endanger the neutrality of the employer, but only on the basis of a sufficiently specific risk, in particular of a specifically threatened economic disadvantage for the employer or an affected third party?’

...

36) The referring court states that, in the light of the judgments in G4S Secure Solutions and Bougnaoui and ADDH, the difference of treatment invoked by MJ cannot constitute direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78, and that, in the present case, the issue is a difference of treatment indirectly based on religion for the purposes of Article 2(2)(b) of that directive. That court states that it assumes that the employer’s wish to project an image of neutrality towards customers is covered by the freedom to conduct a business, as provided for in Article 16 of the Charter, and thus constitutes a legitimate aim. The court entertains doubts whether only a prohibition of any visible form of religious expression is appropriate in order to pursue the aim of a policy of neutrality within the undertaking or whether a prohibition restricted to conspicuous, large-scale signs of political, philosophical or religious beliefs in the work place is sufficient in that regard, provided that that policy is implemented in a consistent and systematic manner.

37) Furthermore, the referring court asks whether, when examining the appropriateness of the means of achieving the aim of neutrality, for the purposes of Article 2(2)(b)(i) of Directive 2007/78, a balance may be struck between the competing interests, namely, on the one hand, Article 16 of the Charter and, on the other hand, Article 10 of the Charter and Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), on the freedom of thought, conscience and religion, or whether such a balancing act is to be performed only upon application of the internal rule to the individual case, for example where an instruction is issued to an employee or notice of dismissal is given.

...

39) Lastly, that court wishes to know whether EU law (here: Article 16 of the Charter) precludes the possibility of incorporating national fundamental rights into the examination of the validity or invalidity of an instruction adopted by an employer with a view to establishing a policy of neutrality.

 

40) It is in those circumstances that the Bundesarbeitsgericht (Federal Labour Court) stayed proceedings and decided to refer the following questions to the Court for a preliminary ruling:

‘(1) Can established indirect unequal treatment on grounds of religion within the meaning of Article 2(2)(b) of Directive [2000/78], resulting from an internal rule of a private undertaking, be justifiable only if, according to that rule, it is prohibited to wear any visible sign of religious, political or other philosophical beliefs, and not only such signs as are prominent and large-scale?

(2) If Question 1 is answered in the negative:

(a) Is Article 2(2)(b) of Directive [2000/78] to be interpreted as meaning that the rights derived from Article 10 of the [Charter] and from Article 9 [ECHR] may be taken into account in the examination of whether established indirect unequal treatment on grounds of religion is unjustifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large-scale signs of religious, political or other philosophical beliefs?

(b) Is Article 2(2)(b) of Directive [2000/78] to be interpreted as meaning that national rules of constitutional status which protect freedom of religion may be taken into account as more favourable provisions within the meaning of Article 8(1) of Directive [2000/78] in the examination of whether established indirect unequal treatment on grounds of religion is justifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large-scale signs of religious, political or other philosophical beliefs?

(3) If Questions 2(a) and 2(b) are answered in the negative:

In the examination of an instruction based on an internal rule of a private undertaking which prohibits the wearing of prominent, large-scale signs of religious, political or other philosophical beliefs, must national rules of constitutional status which protect freedom of religion be set aside because of primary EU law, even if primary EU law, such as, for example, Article 16 of the [Charter], recognises national laws and practices?’

...

65) However, there may be other reasons for an employer pursuing a policy of political, philosophical or religious neutrality. For instance, the origin of such a policy may be the wishes of customers that the undertaking adopts such an approach. In the present case, as the Instructions state, WABE’s objective is to ‘guarantee the children’s individual and free development with regard to religion’. (22) The parents of those children may not want their children’s teachers to manifest their religion or beliefs in the workplace. In that regard, it should be noted that, under Article 14(3) of the Charter, the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions is to be respected, in accordance with the national laws governing the exercise of that right.

66) Furthermore, an employer’s wish to project an image of neutrality towards its customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter, (23) in accordance with which the freedom to conduct a business in accordance with EU law and national laws and practices is recognised.

...

72) In that regard, although the referring court seeks the interpretation of Directive 2000/78 and not of Article 10 of the Charter, (29) I consider it important to refer to the case-law of the European Court of Human Rights (‘the ECtHR’). Here, Case C‑341/19 concerns a private undertaking which operates a chain of drugstores. There is a judgment of the ECtHR which is directly relevant to the question of the wearing of religious clothing in a private undertaking: the judgment in Eweida and Others v. the United Kingdom. (30)

...

80) In other words, there appears to me to be room between, on the one hand, granting complete freedom to workers to wear signs of political, philosophical or religious beliefs in the workplace, which an employer may opt to apply in the context of its freedom to conduct a business under Article 16 of the Charter, (38) and, on the other hand, the prohibition of any visible sign of a political, philosophical or religious nature, with a view to applying a policy of neutrality, which the employer may likewise decide to implement. (39) The policy of neutrality can therefore take several forms, provided that it is pursued in a consistent and systematic manner.

...

90) By part (a) of its second question in Case C‑341/19, the referring court asks, in essence, whether Article 2(2)(b) of Directive 2000/78 is to be interpreted as meaning that the rights laid down in Article 10 of the Charter and in Article 9 ECHR may be taken into account in the examination of whether indirect unequal treatment on the grounds of religion or belief and resulting from an internal rule of a private undertaking is appropriate and necessary.

91) In that regard, the referring court asks whether, with a view to examining whether such a difference of treatment is appropriate, a balance may be struck between competing interests namely, on the one hand, Article 16 of the Charter and, on the other hand, the freedom of thought, conscience and religion laid down in Article 10 of the Charter and in Article 9 ECHR.

...

93) In paragraphs 38 and 39 of the judgment in G4S Secure Solutions, the Court held that an employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate, and that an interpretation to the effect that the pursuit of that aim allows, within certain limits, a restriction to be imposed on the freedom of religion is borne out by the case-law of the ECtHR in relation to Article 9 ECHR.

94) The Court made reference to Article 16 of the Charter and to Article 9 ECHR solely in the context of examining whether a legitimate aim exists, within the meaning of Article 2(2)(b)(i) of Directive 2000/78, with regard to the implementation of an undertaking’s policy of neutrality towards its customers.

...

96) In the first place, as the Commission rightly noted in its written observations, the prohibition of discrimination on the grounds of religion or beliefs is unquestionably linked to the protection of the right to freedom of religion, since such discrimination affects the freedom of a person to practise his religion freely and openly. However, the prohibition of discrimination on the grounds of religion or beliefs, as provided for in Article 21(1) of the Charter, and the freedom of thought, conscience and religion, as laid down in Article 10 of that Charter, constitute fundamental rights which must be clearly distinguished. (43)

97) It is important to recall that Directive 2000/78 gives concrete expression to Article 21 of the Charter, which, as regards its mandatory effect, is no different, in principle, from the various provisions of the founding Treaties prohibiting discrimination on various grounds, even where the discrimination derives from contracts between individuals. (44) The sole purpose of that directive is therefore to combat discrimination on the grounds, inter alia, of religion or beliefs. It does not seek to guarantee the protection of the freedom of religion, strictly speaking, as provided for in Article 10 of the Charter.

...

99) In the third place, I am of the opinion that if all the rights enshrined in the Charter are applied simultaneously with a view to interpreting Directive 2000/78, the end result could be that it is impossible to implement fully and uniformly the provisions of that directive, whilst respecting the objectives of the Directive, which is solely concerned with the principle of non-discrimination in employment and occupation.

100) I therefore propose that part (a) of the second question in Case C‑341/19 be answered to the effect that Article 2(2)(b) of Directive 2000/78 is to be interpreted as meaning that the rights laid down in Article 10 of the Charter and in Article 9 ECHR may not be taken into account in the examination of whether indirect unequal treatment on the grounds of religion or belief and resulting from an internal rule of a private undertaking is appropriate and necessary.

...

102) As a preliminary point, I note that, by its questions referred for a preliminary ruling, the referring court has asked the Court for an interpretation of Directive 2000/78 and not of Article 10 of the Charter. I will therefore consider the third question in Case C‑341/19, which follows on from the first and second questions, in the light of that directive, as part of the examination of indirect unequal treatment on the grounds of religion or belief.

103) As I have stated in point 97 of this Opinion, Directive 2000/78 does not seek to guarantee the protection of the freedom of thought, conscience and religion provided for in Article 10 of the Charter. Accordingly, account cannot be taken of that freedom when examining the appropriateness and the necessity of the means implemented to achieve the undertaking’s aim of neutrality. The same interpretation must be adopted in relation to the freedom to conduct a business enshrined in Article 16 of the Charter, which is not a fundamental right pursued by that directive.

104) In those circumstances, where the principle of non-discrimination as provided for in Directive 2000/78, which gives concrete expression to Article 21 of the Charter, is not undermined, I am of the view that the Member States remain at liberty to apply the national law covering the legal situation concerned.