Opinion of Advocate General Medina delivered on 28 April 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:328
• Date: 28 April 2022
• Celex Number: 62020CC0344
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 28 April 2022(1)

Case C‑344/20

LF

v

SCRL

(Request for a preliminary ruling from the Tribunal du travail francophone de Bruxelles (Brussels Labour Court (French-speaking), Belgium))

(Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Discrimination on the grounds of religion or belief – Internal neutrality rule of a private undertaking – Prohibition on the wearing of any visible political, philosophical or religious signs in the workplace – Religious clothing obligations – Article 8 – More favourable provisions in national law to the protection of the principle of equal treatment – Margin of discretion of the Member States – Religion and religious beliefs as an autonomous ground of discrimination)

I. Introduction

1. This request for a preliminary ruling follows directly on from the judgments of the Court in G4S Secure Solution, (2)Bougnaoui and ADDH (3) and WABE, (4) concerning discrimination on the grounds of religion or belief within the meaning of Directive 2000/78. (5) The reference results from proceedings between LF and SCRL where a spontaneous application for an internship was not taken into consideration due to the refusal of the candidate to comply with the internal neutrality rule imposed on the undertaking’s employees. That rule prohibited the manifestation of any religious, philosophical or political belief, in particular through clothing, in the workplace. (6)

2. The present case invites the Court to address, once again, the question of whether employees of a private undertaking, including interns, can be prohibited from wearing certain clothing based on religious precepts in their place of work. It also calls for an examination of the discretion afforded to Member States, pursuant to Article 8 of Directive 2000/78, to adopt provisions which are more favourable to the protection of the principle of equal treatment than those laid down in that directive, in particular by treating religion and religious beliefs as an autonomous ground of discrimination. According to the Court’s request, the present Opinion shall be confined to that latter question.

II. Legal framework

A. European Union law

3. Directive 2000/78 establishes a general framework for equal treatment in employment and occupation. Its aim is to combat discrimination on the grounds of ‘religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’. (7)

4. For the purposes of Directive 2000/78, the ‘principle of equal treatment’ means that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive. (8)

5. In particular, direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of those grounds. (9) By contrast, indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons, (10) unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (11)

6. Directive 2000/78 shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others. (12)

7. Member States may also provide that a difference of treatment, which is based on a characteristic related to any of the grounds enshrined in Directive 2000/78, shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. (13)

8. Finally, for the purposes of the present case, it is important to bear in mind that recital 28 of Directive 2000/78 states that the directive only lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of Directive 2000/78 should not serve to justify any regression in relation to the situation which already prevails in each Member State. Moreover, under the heading ‘Minimum requirements’, Article 8(1) of Directive 2000/78 provides that Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in that directive. Article 8(2) of Directive 2000/78 also establishes that the implementation of that directive shall, under no circumstances, constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by that directive.

B. Belgian law

9. The Loi du 10 mai 2007 tendant à lutter contre certaines formes de discrimination (Law of 10 May 2007 to combat certain forms of discrimination; ‘the General anti-discrimination law’) (14) transposes Directive 2000/78 into Belgian law. (15) Its purpose is to create a general framework for combating discrimination in the fields of employment and occupation. (16) It applies to employment relationships, (17) which include, inter alia, relationships that are formed as part of unpaid work, of work carried out pursuant to an internship or apprenticeship, or arising from work experience agreements. (18)

10. The criteria protected against discrimination are listed in Article 4(4) of General anti-discrimination law as ‘age, sexual orientation, civil status, birth, financial situation, religious or philosophical belief, political belief, trade union belief, language, current or future state of health, disability, physical or genetic characteristics or social origin’.

11. According to Article 7 of the General anti-discrimination law, any direct distinction based on one of the protected criteria referred above constitutes direct discrimination, unless that direct distinction is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. However, Article 8(1) of the same law provides that a direct distinction based, inter alia, on religious or philosophical belief can be justified only by genuine and determining occupational requirements.

III. Facts, procedure and the questions referred

12. LF, the applicant in the main proceedings, is Muslim and wears the Islamic headscarf. SCRL, the defendant undertaking, is primarily engaged in the letting and operating of social housing intended for people with reduced access to the private rental market.

13. In March 2018, LF applied for an unpaid internship of six weeks’ duration in SCRL as part of her vocational studies in office automation. She was invited to an interview a week later, during which she was asked whether she would agree to comply with the neutrality rule promoted within the undertaking. According to that rule, laid down in the terms of employment of SCRL, ‘workers undertake to respect the company’s strict policy of neutrality. They 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’. When questioned on this point, LF replied that she would refuse to remove her headscarf to comply with that rule.

14. Given that no further action was taken on her application, in April 2018, LF renewed her request for an internship with SCRL proposing to wear another type of head covering. However, in response to that communication, SCRL informed her that she could not be offered an internship as no type of head covering was permitted on its premises, whether it be a cap, a hat or a scarf.

15. LF brought an action for a prohibitory injunction before the referring court, challenging the refusal to offer her an internship, which she considers to be based directly or indirectly on her religious beliefs and, consequently, on a violation of the provisions of the General anti-discrimination law. (19)

16. The referring court takes the view that LF’s application for an internship with SCRL constitutes an employment relationship which falls within the scope of Directive 2000/78 and the General anti-discrimination law. It considers, however, that the interpretation of the concept of direct discrimination on the grounds of religion or belief, within the meaning of Article 2(2)(a) of Directive 2000/78, requires further clarification from the Court. Among the issues raised by the referring court is whether it may exercise any discretion in carrying out the assessment of the comparability of situations, which, according to the judgment in G4S Secure Solutions, is incumbent on national courts to undertake and from which it may be inferred that there has been direct discrimination.

17. The referring court also questions whether the Court, in the judgment in G4S Secure Solutions, intended to merge religious beliefs, philosophical beliefs and political beliefs into a single protected criterion, such that there is no longer any need to distinguish between those grounds of discrimination. That would imply that Article 1 of Directive 2000/78 is to be interpreted as meaning that religion and belief are two sides of the same protected criterion. In the view of the referring court, the answer to that question is...