The jurisprudence of the CJEU on Article 17 TFEU and the EU’s duty to respect the status of churches and religions under national law has changed significantly over time. Early case law reflected a narrow interpretation of Article 17 TFEU, emphasizing strong protection of religious freedom. More recent decisions, however, demonstrate a broader reading of the provision which goes hand in hand with a wide margin of appreciation afforded to Member States, not only regarding the freedom of religion but also the prohibition of discrimination on grounds of religion. With the latter, the CJEU effectively adopts a low level of scrutiny, thereby stepping back and giving way to the vindications of national sovereignty. These developments may seem topic specific, in the sense that the first judgements concerned the protection of employees against religious employers, and the latter controversial expressions of Islam (ritual slaughter and headscarves). Nevertheless, when the CJEU chooses to adopt a broad interpretation of Article 17 TFEU – even at the expense of the fundamental freedoms of the internal market – it seems warranted to flag a case of potential national sovereignty creep, that does not augur well for the effective protection of the freedom of religion and related human rights.

Article 17 TFEU: a gate towards a broad margin of appreciation

When the Treaty of Lisbon enshrined with Article 17 TFEU in the foundational treaties that “(t)he Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States”, this raised concerns about a possible transposition of the broad margin of appreciation for religious matters generally that is visible in the case law of the ECtHR into CJEU jurisprudence. The margin of appreciation doctrine of the ECtHR has triggered a rich literature, several of which are critical about the way in which that Court uses this doctrine in its jurisprudence in general, and for the freedom of religion in particular, because of its threat to the effective protection of human rights. The ECtHR started from the premise that because of the lack of European consensus concerning the relation between church and state, States have a broad margin of appreciation in these matters. Granting States a broad margin of appreciation to decide which limitations to the manifestation of religion amount to violations, implies that the Court adopts a low level of scrutiny. This in turn potentially undermines the effective protection of the freedom of religion. What is more, granting States a broad margin of appreciation is problematic since the ECtHR thus “steps back”, does not take up its supervisory role and gives way to national sovereignty. Notwithstanding these fundamental criticisms, the Court has over time steadily extended the reach of “church-state relations”, to about any religious matter or as it postulates in S.A.S v France “as regards Article 9 ECHR in general” (para 129).

It is well known that the CJEU was heavily inspired by the ECHR and the jurisprudence of the ECtHR in its development of human rights as general principle of EU law. While since the adoption of the EU Charter, the CJEU increasingly develops its human rights jurisprudence in reference to the EU Charter, the ECtHR jurisprudence still exerts considerable influence on the human rights jurisprudence of the CJEU. Even the EU Charter confirms (in Article 52(3)) that in case of corresponding rights “the meaning and scope of those rights shall be the same as those laid down by the said Convention”. Nevertheless, the same provision does add that “(t)his provision shall not prevent Union law providing more extensive protection.” In other words, Article 52(3) of the EU Charter justifies both that the ECtHR jurisprudence still has a strong influence on the jurisprudence of the CJEU, and that the CJEU could choose to provide a higher level of protection of fundamental rights, by for example not following lines of jurisprudence granting a broad margin of appreciation to States and pitching the level of scrutiny higher.

Article 17 TFEU: a range of possible interpretations

Article 17(1) TFEU is meant to reflect the division of competence in the EU, in the sense that the relationship between churches and the state is a matter of national competence that is not conferred on the EU (Article 5(2) TEU; see also Robbers discussed by Colombo), which can be related to Article 4(2) TEU as the EU duty to protect the member States’ national identities. However, there are different interpretations of where and how the competence line is drawn. As was visible in the above description of the jurisprudence of the ECtHR the expression “the status under national law of churches and religious associations or communities in the Member States” can be interpreted narrowly or broadly. Some argue that Article 17 only requires the EU to refrain from regulating matters that are concretely characterized by a high rate of denominational specificity (see Bruno de Witte for a similarly narrow reading of Article 4(2) TEU). Others interpret Article 17 as a safeguard clause in favor of national sovereignty more generally for religious matters, also going beyond questions of denominational autonomy. This broader reading of Article 17 TFEU goes hand in hand with the adoption of a broad margin of appreciation in relation to Article 10 of the EU Charter and a similar low level of scrutiny for the prohibition of discrimination on grounds of religion (as regulated in Directive 2000/78). Inversely, when the CJEU is seen to grant States a broad margin of appreciation regarding the freedom of religion and the prohibition of discrimination on grounds of religion, this signals a broad(er) reading of Article 17 TFEU. Instead of EU competence creep, this development would rather point to “national sovereignty creep”.

The first judgements on Article 17 TFEU

In the first judgements on Article 17 TFEU the CJEU clearly indicated its intent to adopt the narrow reading of Article 17 and thus scrutinize religious matters suitably strictly, not granting States a broad margin of appreciation. In IR and Egenberger the CJEU underscored that member States cannot exempt the employment related decisions of religious organisations as employers from the operation of EU non-discrimination law (para 48 and 56-58 respectively). The CJEU furthermore interpreted the exception for “genuine occupational requirement” suitably narrowly by requiring these to be proportionate to the specific functions of the position concerned. In these contestations of decisions of religious employers towards their employees because the latter would not respect the religious ethos of the employer, the CJEU has been most vigilant to protect the freedom of religion of the employees.

A broad margin of appreciation, Article 17 TFEU and national sovereignty creep

Subsequent judgments have revealed that the CJEU has adopted a broader reading of Article 17 TFEU though. In a range of judgements concerning ritual slaughter and the wearing of headscarves at work, the CJEU has indeed chosen to explicitly adopt the ECtHR’s grant of a broad margin of appreciation for the freedom of religion (Article 10 of the EU Charter) and has even further extended this to the prohibition of discrimination on grounds of religion (Directive 2000/78 EC), thus stepping back and giving way to national sovereignty vindications.

Freedom of religion and ritual slaughter

Since the adoption of the EU Charter, there have been several cases that concern the regulation of ritual slaughter. When evaluating these cases, it is important to keep in mind that ritual slaughter may have a very long history in Europe (predating Christianity), but already since the 1840s the movements to ban this practice demonstrated how animal welfare considerations and prejudice against religious minorities often go hand in hand. It is equally important to know that the EU legal framework regarding the killing of animals – Regulation 1099/2009, animal welfare under Article 13 TFEU and the freedom of religion under Article 10 of the EU Charter, does not indicate that the freedom of religion, including its manifestation through ritual slaughter, would be less protection worthy than animal welfare. Yet, in the two cases addressing the regulation of ritual slaughter, the level of scrutiny applied by the CJEU has been inadequate: the Court has failed to detect instances of hidden direct discrimination. Once again, the CJEU can be seen to “step back” and allow national sovereignty creep.

In Liga van Moskeeën the CJEU had to determine whether the strict norms of a Regulation violated the freedom of religion because it would impede the permission of additional slaughter houses for ritual slaughter to address the peak demand of the Feast of Sacrifice. The judgement has triggered considerable criticism in at least two respects. First, the CJEU did not acknowledge that this seemingly neutral rule of demanding requirements for slaughter houses has a dispropoportionate impact for religious groups that need ritually slaughtered meat in significantly higher concentrations only for particular religious festivals. Not providing an exception for these temporary peak demands potentially amounts to a case of indirect discrimination on grounds of religion. Unfortunately, the CJEU did not even acknowledge this potential, unlike the Advocate General in that case (AG Wahl). Second, the CJEU also did not take into account the Islamophobic or racialized context in which initiatives to ban ritual slaughter emerge and get stronger.

In Centraal Israëlitisch Consistorie van België and Others the CJEU had to evaluate whether an absolute obligation of reversible stunning (which cannot result in the animal’s death) could be imposed without violating the freedom of religion, because this type of stunning would respect the requirements of ritual slaughter. Notwithstanding the arguments of orthodox groups that do not accept reversible stunning, the CJEU opined that the freedom of religion would not be violated. The CJEU arrived at this conclusion while fully embracing the ECtHR line of jurisprudence on the broad margin of appreciation of States in religious matters (para 67). The very low level of scrutiny the Court thus adopts implies that the CJEU actually “steps back”, and returns the matter to the national sovereignty sphere.

Discrimination on grounds of religion, neutrality policies of employers and headscarves

In one of the early judgements on Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, the CJEU adopted suitably strict scrutiny with regard to discrimination on religious grounds. In its preliminary ruling in Achatzi, the CJEU allowed a Member State to recognize religious minorities’ holy days as public holidays, as long as it respects the prohibition of discrimination on grounds of religion by not privileging one religious minority over others (paras 79-82). Put differently, the CJEU strongly affirmed that decisions that affect actual working days through the selection of religious days as public holidays are fully subject to EU law and its prohibition of discrimination on grounds of religion.

However, in the long line of cases concerning neutrality measures of employers that translate in prohibitions on wearing headscarves at work, the CJEU’s level of scrutiny is in several respects sub-optimal, also because the CJEU chose to extend the broad margin of appreciation to the prohibition of discrimination on grounds of religion. From the first judgements, the Court has chosen not to adopt a critical baseline about neutrality policies that prohibit the wearing of visible signs of political, philosophical, or religious beliefs. The CJEU opined that such neutrality measures would not amount to direct discrimination on grounds of religion as long as they would be applied generally and consistently, even when these policies are put in place following an employee’s request to wear a headscarf (Achbita, paras 29-32). The Court did acknowledge that such a neutrality policy puts persons adhering to certain religions at a particular disadvantage and could thus amount to indirect discrimination on grounds of religion (Achbita para 37-38).

Critical observations are in order regarding both the CJEU’s limited attention for hidden direct discrimination and the (degree of) guidance it provides to national courts about the justification for indirect discrimination. As regards the former, the Court has been suitably strict when the neutrality policies obviously targeted headscarves, whether because a client requested no headscarves (Bougnaoui) or because the policy was limited to conspicuous large signs (Müller, para 73). Notwithstanding the fact that several national courts have asked questions inviting the Court to consider more subtle cases of possible hidden direct discrimination, the CJEU has so far chosen to ignore these questions, inviting suitable criticism.

Regarding the latter, the CJEU’s initial guidance to the national courts about parameters to evaluate the proportionality of neutrality policies, given the disparate impact on persons who want to wear religious signs/clothes at work (e.g. in Achbita), was minimal. In subsequent cases, the CJEU does become more demanding and increases its level of scrutiny (cf. a similar phenomenon in the jurisprudence of the ECtHR). In both Wabe and Müller, also followed in SCRL, the CJEU indeed imposes a more rigorous justification test by requiring employers to prove economic harm (a sufficiently specific risk to its business activities) if they would not have neutrality policies (Wabe para 64; Muller paras 76 and 85).

However, this trend to restrict at least the extent to which private employers can impose neutrality rules on their employees has not been extended to the sphere of public employment. In Commune d’Ans, the CJEU continues its narrow reading of what neutrality measures would amount to direct discrimination. In its evaluation of possible indirect discrimination, the CJEU’s level of scrutiny is too light, as it chooses to extend the broad margin of appreciation concerning the freedom of religion to the prohibition of discrimination on grounds of religion. In Commune d’Ans the CJEU considers that municipalities can choose which vision of neutrality they opt for: exclusive neutrality, inclusive neutrality or something in between (paras 33-35). The Court could have deduced from the fact that neutrality can be conceived “inclusively” namely by allowing the wearing of all visible signs of political, philosophical or religious beliefs, that exclusive neutrality (not allowing any) would be disproportionate. Instead, the CJEU steps back and leaves the matter in the sovereign sphere of the Member States, which is in line with a broad reading of Article 17 TFEU.

The CJEU does add that a policy of strict neutrality can only be adopted by a municipality, provided that the policy is applied consistently and indiscriminately and that it is ultimately necessary and proportionate (para 37). Arguably, the latter is interesting, as it seems to open the possibility for the national court, conscious of the context of Islamophobia throughout Western Europe, to opine that a strict neutrality policy would not be proportionate, exactly because neutrality can also be conceived in an inclusive manner.

Either way, it should be underscored that the CJEU’s extension of the broad margin of appreciation (from the freedom of religion) to the prohibition of discrimination on grounds of religion does not have a precedent in ECtHR case law. Indeed, although the ECtHR has so far refused to acknowledge explicitly that religion is a suspect ground of differentiation – which would trigger heightened scrutiny (leaving a very narrow margin of appreciation) – it nevertheless tends to scrutinize disadvantageous treatment on grounds of religion rather closely and has not granted States a broad margin of appreciation in the matter.

Article 17, status of religions under national law, and the internal market fundamental freedoms

In a more recent preliminary ruling on state funding for denominational schools (Freikirche), the CJEU accepted that this funding could be limited to schools of religions that are recognized under national law, notwithstanding its exclusion of schools of religions that are recognized in other Member States, and the related restriction on the freedom of establishment (para 30-31). The Court here relies explicitly on Article 17 TFEU when discussing the justification of the restriction of the freedom of establishment (running a school on a stable basis concerns the freedom of establishment). The case suggests a broad interpretation of “the status under national law of churches and religious associations or communities” that carves out a broad range of religious matters from the freedom of establishment (paras 41-43). It is remarkable, to say the least, that the CJEU seems willing to even reduce the protection of one of the four freedoms central to the internal market to safeguard States’ broad margin of appreciation in religious matters. Such an extensive reading of Article 17 TFEU, “and the related national sovereignty creep”, obviously does not augur well for the effective protection of the freedom of religion and related human rights, as was already visible in the Commune d’Ans judgement which followed a few months later.

Conclusion

The various jurisprudential lines of the CJEU discussed here unfortunately show that Article 17 TFEU has over time indeed induced, or at least enabled, the CJEU’s adoption of the ECtHR’s jurisprudence on the broad margin of appreciation for the freedom of religion at large. What is more, the CJEU has even chosen to extend the broad margin of appreciation to the prohibition of discrimination on grounds of religion. When an international court grants states a broad margin of appreciation, it adopts a low level of scrutiny, which in turn threatens the effective protection of the fundamental rights concerned. A low level of scrutiny also implies that the court is stepping back and ultimately gives way to national sovereignty (vindications). It may have seemed that the adoption of the broad margin of appreciation was specific to controversial manifestations of Islam. However, when the CJEU chooses to adopt a broad interpretation of Article 17 TFEU, even when this means an encroachment on the fundamental freedoms of the internal market, it seems warranted to flag a case of potential national sovereignty creep, that does not augur well for the effective protection of the freedom of religion and related human rights.