EU normative instruments protecting the “ethical core” of

The European Union protects the “ethical core” of secularism, which comprises the recognition of freedom of religion and the prohibition of discrimination on religious grounds, by virtue of two regulatory instruments. On the one hand, the Charter of the Fundamental Rights of the European Union (Charter) enshrines both religious freedom (Art.10) and the prohibition of discrimination based on inter alia religion (Art. 21).¹²² On the other, Directive 2000/78/EC lays down the prohibition of discrimination on different grounds, including religion, in the field of employment.

4.1.1. Art. 10 and Art. 21 Charter

Within the EU legal order, religious freedom is mainly protected by Art. 10 Charter, which at its paragraph 1 enshrines that

«Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom , either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance».

As confirmed by the official Explanations of the EU Charter, this formulation is virtually identical to that of Art. 9(1) ECHR. Conversely, whereas the second part of the latter disposition provides limitations on freedom of thought, conscience and religion, Art. 10 Charter does not contain similar restrictions. Nevertheless, by virtue of Art. 52(3), Charter articles that correspond to ECHR provisions must be given the same meaning and scope as those laid down in the ECHR.¹²³ Art. 10 Charter is thus to be interpreted as allowing limitations on religious freedom when they are «necessary in democratic society for the protection of public order, health or morals, or for the protection of the rights and

122 Beside such dispositions that protect the individual dimension of religious freedom, it is worth highlighting that Art. 22 Charter also enshrines that the Union shall respect cultural, religious and linguistic diversity.

123 «In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of t hose rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law to providing more extensive protection».

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freedoms of others», as set out in Art. 9(2) ECHR. Such limitations can be introduced only in relation to the external realm of freedom of religion. Indeed, even though the Charter does not provide a definition of the term “religion”, the CJEU has affirmed that this concept must be understood as covering both typical dimension of personal faith - i.e. «the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public».¹²⁴ The former dimension enjoys absolute protection and cannot be violated under any circumstances, so that «a man who has faith but no deeds is a believer who enjoys absolute protection under human rights law».¹²⁵ On the other hand, the latter cannot be considered an absolute right and can thus be limited for the reasons laid down in Art. 9(2) ECHR.

The effective enjoyment of the right to freedom of religion is also protected by Art. 21 Charter, which, at its paragraph 1, prohibits

«any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation ». [emphasis added]

This disposition displays some differences from analogous provisions contained in other human rights instruments. Firstly, whereas in most other tools, such as Art. 14 ECHR, the prohibition of discrimination has effect solely in relation to the enjoyment of substantive rights and freedoms protected by said instruments, the wording of Art. 21(1) Charter enshrines such prohibition in a general manner. Since the official Explanations affirm that

«in so far as [Art. 21] corresponds to Article 14 of the ECHR, it applies in compliance with it», someone may conclude that Art. 21(1) Charter has an ancillary nature too.

Nevertheless, scholars do not endorse this interpretation¹²⁶ and, in 2005, Protocol No. 12

124 Judgment G4S Secure Solutions, above, para. 28; Judgment Bougnaoui and ADDH, above, para. 30.

125 P. SLOTTE, What is a Man if He Has Words but Has No Deeds? Some Remarks on the European Convention of Human Rights, in Ars Disputandi. 11, 2011, p. 268.

126 See E.DECAUX, Commentaire de l’Article II-81, Paragraphe I, Non-Discrimination, in L.

BURGOURGUE-LARSEN, A. LEVADE, F. PICOD (eds.), Traité Établissant une Constitution pour l’Europe. Partie II. La Charte des Droits Fondamentaux de l’Union Européenne – Commentaire article par article, Bruylant, 2005, p. 296 ; F. SPITALERI, Art. 14, in S. BARTOLE, P. DE SENA, V.

ZAGREBELSKY (eds.), Commentario breve alla Convenzione Europea dei Diritti dell’Uomo, Cedam, 2012, p. 548.

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came into force extending the scope of Art. 14 ECHR to «any right set forth by law», turning the prohibition of discrimination there enshrined into a free-standing right.¹²⁷ Secondly, the Charter stands out for the number of discrimination grounds it prohibits.

Not only Art.21(1) Charter forbids discrimination based on the seven grounds mentioned in Art. 19 TFEU (sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation), but adds to the list five further grounds (genetic features, political or any other opinion, membership of a national minority, property and birth). Furthermore, as suggested by the phrase “such as”, Art.21(1) Charter is to be interpreted as an open-ended list of status discrimination grounds, so that it can extend to virtually any ground of discrimination.¹²⁸ In light of this, the Explanations felt the urge to highlight that Art. 21(1) Charter «does not create any power to enact anti-discrimination laws» in those areas falling outside the field of application of EU law, but «only addresses discriminations by the institutions and bodies of the Union themselves […] and by member States only when they are implementing Union law».¹²⁹

4.1.2. Directive 2000/78/EC

Directive 2000/78/EC, i.e. the so-called Employment Equality Directive, enshrining prohibition of discrimination on the basis of inter alia religion in the workplace, is the second normative tool through which the Union protects the “ethical core” of secularism.

This instrument was adopted under what is currently Art. 19 TFEU,¹³⁰ which provides the EU institutions with powers to combat discrimination, and aims to fight discrimination

127 See also European Court of Human Rights, Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention, 31 December 2020, p. 9, available at https://www.echr.coe.int/Documents/Guide_Art_14_Art_1_Protocol_12_ENG.pdf (last accessed on 31 December 2021).

128 See for instance Court of Justice of the European Union, judgment of 7 February 2019, Case C-49/18, Escribano Vindel, EU:C:2019:106, para. 58, in which the CJEU considered length of service as a discrimination ground falling under the scope of Art. 21(1) Charter.

129 See for instance Court of Justice of the European Union, judgment of 18 December 2014, Case C-354/13, Kaltoft, EU:C:2014:2463, in which a challenge to national action whereby a public employee was dismissed on grounds of obesity was considered as falling outside the scope of Art. 21(1) Charter.

130 «[...] the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation».

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on the grounds of «religion or belief, disability, age or sexual orientation as regards employment and occupation».¹³¹ In this regard, it is interesting to notice that the CJEU had already issued numerous rulings regarding alleged discrimination on grounds of disability¹³², age¹³³ or sexual orientation¹³⁴ since 2003. Yet, it is only since 2017 that religious discrimination has been addressed. The Directive's field of application covers the conditions for access to employment and vocational guidance, the employment and working conditions (including dismissals and pay) and the membership of an organization of workers or employers.¹³⁵ Conversely, the Directive does not apply to State social security or protection schemes.¹³⁶

In relation to the principle of equal treatment, the instrument sets out a fundamental distinction between direct and indirect discrimination. The former category includes all those cases in which «one person is treated less favorably than another is, has been or would be treated in a comparable situation».¹³⁷ However, exceptions are contemplated if in light of the nature of the occupational activity and of the context in which it is carried out, a characteristic related to a discriminatory ground constitutes «a genuine and determining occupational requirement», provided that the aim is legitimate and the requirement is proportionate.¹³⁸ The latter category refers to those circumstances «where an apparently neutral provision, criterion or practice would put […] at a particular disadvantage»¹³⁹ a person by virtue of one of the grounds covered by the Directive. Every act or behavior which aims to consciously prejudice a person by virtue of his/her group

131 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303 of 2.12.2000, Art. 1. [emphasis added]

132 Among the others, Court of Justice of the European Union, judgment of 11 April 2013, Cases C-335/11 and C-337/11, HK Danmark, EU:C:2013:222; Court of Justice of the European Union, judgment of 4 July 2013, Case C-312/11, Commission v. Italy, EU:C:2013:446.

133 Among the others, Court of Justice of the European Union, judgment of 22 November 2005, Case C-144/04, Mangold, EU:C:2005:709; Court of Justice of the European Union, judgment of 16 October 2007, Case C-411/05, Palacios de la Villa, EU:C:2007:604; Court of Justice of the European Union, judgment of 13 September 2011, Case C-447/09, Prigge and Others, EU:C:2011:573.

134 Among the others, Court of Justice of the European Union, judgment of 1 April 2008, Case C-267/06, Maruko, EU:C:2008:179; Court of Justice of the European Union, judgment of 10 May 2011, Case C-147/08, Römer, EU:C:2011:286.

135 Directive 2000/78, above, Art. 3(1).

136 Ibid., Art. 3(3).

137 Ibid., Art. 2(2)(a).

138 Ibid., Art. 4(1).

139 Ibid., Art. 2(2)(b).

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belonging therefore amounts to direct discrimination. Conversely, conducts resulting from the application of criteria which, despite being formally neutral, have concrete adverse effects on the members of a specific group constitute indirect discrimination.

Such definition of indirect discrimination expressly allows its objective justification. Art.

2(2)(b)(i) Directive 2000/78 permits a measure that is prima facie indirectly discriminatory to be lawful where it is «objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary».

The Directive also allows churches and other organizations the ethos of which is based on religion or belief to derogate from the anti-discrimination provisions in case «a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organization's ethos».¹⁴⁰ Directive 2000/78 further specifies that its provisions are without prejudice also to those national measures which, in a democratic society, are deemed necessary to maintain both public security and public order and to protect health.¹⁴¹ In addition, in order to ensure full equality in practice, the instrument recognizes that Member States are permitted to maintain or adopt additional specific measures aimed at preventing or compensating for disadvantages linked to any of the discrimination grounds covered by the Directive itself.¹⁴²

4.2. An assessment of EU secular character in light of the Preamble of the Lisbon Treaty