The European Union is no longer a community of interests, it is a community of values. If anyone had any doubts about it, a brief look at the cases being brought before the Court of Justice on the thorny issue of religion provides a very blunt answer. In sixty years of European integration, religion has been a missing part of Europe’s narrative, both in policy and in law. Religion only made its appearance in very discreet cases, when, for example, the right of a staff member to practice his or her religion was constrained by staff regulations, or when a national court questioned if the data gathered for a web page of the local parish was subject to data protection rules. Religion was not an issue at the heart of the discussions on integration, and the Court of Justice made no effort in bringing the subject to the forefront of the debate.
This has changed radically in the shortest of time-spans.
In only a year and a half, the Court of Justice has been forced to deal with crucial issues such as the Islamic headscarf at work (Achbita and Bougnaoui), the scope of constitutional autonomy of religious organizations (Egenberger), the due protection of religious rites in EU regulatory provisions (LMIOPA), the enforcement of State Aid rules to religious schools (Congregación de Escuelas Pías), as well as issues of data protection applied to door-to-door activities by religious organizations (Tietosuojavaltuutettu). It’s not a bad record for a court that has kept a conscious distance from the issue for six decades. Out of the blue, to the surprise of many, religion is now a source of key societal issues being brought at the forefront of the Court’s agenda.
First, it’s important to focus on the way in the way in which the cases are reaching the Court. All the cases are being brought through preliminary references made by national courts. There is not a single infringement action or action of annulment. National courts are the promoters of this new trend in the case-law, not EU Institutions nor Member State governments. Once again, it is thanks to the dialogue between judges that key societal issues make it to the Luxembourg court.
Second, all the cases (with the exception of Congregación de Escuelas Pías) focus on the Charter and how it can condition the interpretation or validity of EU secondary rules. National judges are not so much concerned about the data protection Directive, or the equality Directive. What they really are questioning is the interpretation of these instruments in light of the Charter, because they are aware that the Charter has introduced change. The barrage of cases on religion is good proof that the Charter is not business as usual, but quite the contrary.
Third, it is interesting to see how Member States are shying away from these cases in the course of the proceedings. The judgments show that Member States do not really want to be involved in these discussions and therefore they do not submit written or oral observations. The governments of the Member States from where the reference comes will usually intervene, but considering the stakes at hand it is surprising to watch how other countries that struggle with many of these issues at home prefer to keep a low profile at the European level. The only Member State that seems to have an interest and intervenes in most of the cases is the United Kingdom.
Fourth, it is also striking to see how the Court of Justice deals with the very well-established case-law of the European Court of Human Rights, either by ignoring it or minimizing its relevance. There is an odd citation here and there, but that is it. It is obvious that the Court of Justice wants to have its own say in the matter, but at the same time it is aware that it cannot fully ignore the findings of the Strasbourg court, which has been dealing with these matters for decades. There is no engagement with the Strasbourg case-law, only a diplomatic gesture recognizing its existence, but not much more. This is, yet again, another example of how the Court of Justice, as a general rule, wants to keep an autonomous interpretation of the Charter, using Strasbourg as a minimal reference for basic orientation and not much more.
And lastly, what about the substance of the rulings? What is the Court of Justice really saying about religion and, more specifically, freedom of religion? In this regards, I am afraid to say that the answer is: “not much”! Once again, the Court of Justice is relying on the effectiveness of EU law and other familiar tools as a means to avoid the thorny issues. In Egenberger it is quite clear: the substance of the case is relegated to the question of whether the fundamental right to an effective judicial protection must be safeguarded, thus allowing labor courts to review the hiring decisions of religious schools in Germany. Therefore, in the eyes of the Court it is not so much about religious autonomy, but mostly about effective judicial protection. The same applies to Achbita and Bougnaoui, in which a key issue, such as the wearing of the headscarf at work, is handled as a question of discrimination on the grounds of religion, not religious freedom, and eventually it is dealt through a rather poor proportionality test. And of course, if there are superfundamental rights involved, freedom of religion will not stand a chance and will be sacrificed in the name of the what seems to be Court’s true religion: privacy.
Unfortunately, we are not really grasping what is the Court’s vision of religion, but at the same time we are envisioning how a fundamental right is born, takes its first steps and slowly evolves in EU law. It is always a sluggish and gradual process in which the Court hides under its more familiar tools, but eventually it is dragged (mostly by national courts) into taking a stance. I am optimistic and I believe that it will take some time, maybe a few years, until religion becomes another relevant pillar of the Court’s fundamental rights case-law. But for the time being, it is work in progress.
Despite our Differences 