Opinion of Advocate General Rantos, IX v. WABE eV and MH Müller Handels GmbH v. MJ,Cases C-804/18 and C-341/19, CJEU, 25 February 2021
In the Joined Cases C-804/18 IX/WABE e.V. and C-341/19 MH Müller Handels GmbH/MJ, Advocate General Rantos addresses the issue of the compatibility with EU law of a prohibition imposed by a private company on its employees to wear conspicuous signs of political, ideological or religious beliefs at the workplace. In this regard, the Advocate General considers that a policy of ideological or religious neutrality of an employer in its relations with customers is not per se incompatible with the use, by employees, of visible religious signs, provided, however, that they are small and not noticeable at first glance.
The Advocate General argues, in particular, that while the prohibition of wearing at the workplace any visible sign of political, ideological or religious conviction is permissible by virtue of a policy of neutrality of the company, the employer is nevertheless free, in the context of its freedom to conduct business, to prohibit only the use of large signs (e.g. the Islamic veil). Such a prohibition must be pursued in a consistent and systematic manner, which is a matter for the referring court to verify. To support this argument, reference is made to a precedent of the Court, i.e. the G4S Secure Solutions judgment (see judgment of 14 March 2017, G4S Secure Solutions, C-157/15), where it had been held that the prohibition of the visible wearing of any sign of religious conviction in the workplace was appropriate to ensure the proper application of a policy of neutrality of the company, provided that this policy was pursued in a truly consistent and systematic manner.
Finally, the Advocate General considers whether the Directive on equal treatment in employment and occupation (Council Directive 2000/78/EC of 27 November 2000, which crystallizes a general framework for equal treatment in employment and occupation) must be interpreted as precluding a national court from applying national constitutional provisions protecting freedom of religion when examining an instruction based on an internal rule of a private company concerning the prohibition of wearing in the workplace signs of political, religious or other ideological beliefs. Specifically, German constitutional provisions provide that an employer's willingness to pursue a policy of religious neutrality with respect to customers is legitimate (only) if the absence of such neutrality would cause economic harm.
On this topic, the Advocate General considers that it is necessary to take into account the different approaches of the Member States with regard to the protection of freedom of religion: in his opinion, the German national provisions do not conflict with Directive 2000/78/EC. Indeed, they do not prohibit a policy of political, ideological or religious neutrality on the part of an employer, but merely establish an additional requirement for implementation, namely the existence of a sufficiently concrete threat of economic disadvantage to the employer or a third party concerned. Accordingly, the Advocate General concludes that a national court may apply constitutional provisions protecting freedom of religion when examining the conformity with the Directive (referred to above) of an internal rule of a private company prohibiting the wearing at the workplace of signs of political, ideological or religious beliefs. However, such provisions must not undermine the principle of non-discrimination enshrined in the Directive, which is (always) a matter for the national court to verify.
(Comment by Alessandro Cupri)