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Curia - Collaborative Interpretive Planning App Wniosek o wydanie orzeczenia w trybie All types of dates Date of delivery Date of the Opinion Date of the hearing Date of the lodging of the application initiating proceedings. Convention No111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation. EU law. 38The referring court considers that, in order to be able to resolve the dispute before it, it must assess the legality of the instruction given to MJ by MH and the internal directive, in the light of the limitations placed on the right of an employer to give instructions under the first sentence of Paragraph106 of the GewO. WABE pursues a policy of political, philosophical and religious neutrality in respect thereof. dra J.Babiskiego Samodzielny Publiczny Zakad Opieki Zdrowotnej w Krakowie, C16/19, EU:C:2021:64, paragraph33). Judgment of the Court (Grand Chamber) of 22 December 2022 (requests for a preliminary ruling from the Tribunal darrondissement de Luxembourg CURIA - Documents This compensation shall not exceed three monthly salaries in the event of non-recruitment, if the employee would not have been recruited if the selection had been made without unequal treatment. MH Mller Handels GmbH, by F.Werner, Rechtsanwalt. 9Under Paragraph4(1) and (2) of the Grundgesetz fr die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) of 23May 1949 (BGBl. . CURIA - List of results 37MJs action before those courts was upheld and MH subsequently brought an appeal on a point of law before the Bundesarbeitsgericht (Federal Labour Court, Germany), in which it also argued that it is apparent from the judgment of 14March 2017, G4S Secure Solutions (C157/15, EU:C:2017:203), that it is not necessary to establish specific economic harm or a reduction in customers in order for a prohibition on manifesting beliefs to be validly applied. The case-law of the Court of Justice, specifically the judgments of 14March 2017, G4S Secure Solutions (C157/15, EU:C:2017:203), and of 14March 2017, Bougnaoui and ADDH (C188/15, EU:C:2017:204), does not provide an answer to that question. Article2(2)(a) of that directive provides that, for the purposes of applying Article2(1) thereof, direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article1 of that directive, which include religion or belief. That is the case, for example, of parents right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs recognised in Article14 of the Charter or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children with the aim, inter alia, of guaranteeing the free and personal development of children as regards religion, belief and policy, as mentioned in the staff instructions adopted by WABE. 63In that regard, as regards the condition relating to the existence of a legitimate aim, an employers desire to display, in relations with both public- and private-sector customers, a policy of political, philosophical or religious neutrality may be regarded as legitimate. IX learned of those instructions on 31May 2018. (b)Is Article2(2)(b) of Directive [2000/78] to be interpreted as meaning that national rules of constitutional status which protect freedom of religion may be taken into account as more favourable provisions within the meaning of Article8(1) of Directive [2000/78] in the examination of whether established indirect unequal treatment on grounds of religion is justifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large-sized signs of religious, political or other philosophical beliefs? This develops appreciation and respect for other religions, cultures and beliefs. As IX again refused to remove the headscarf, she was sent home and temporarily suspended. It is non-partisan and non-denominational. If it were to be concluded that the rights at issue arising from the Charter cannot be taken into consideration in the context of that examination, the question would then arise as to whether a national constitutional provision, such as Article4(1) and (2) of the GG, protecting freedom of religion and belief, may be regarded as more favourable provisions within the meaning of Article8(1) of Directive 2000/78. In support of her action, MJ invoked her freedom of religion, protected by the GG, while claiming that the policy of neutrality sought by MH does not enjoy unconditional priority over the freedom of religion and must be subject to a proportionality test. Employees shall not wear any signs of their political, philosophical or religious beliefs that are visible to parents, children and third parties in the workplace. CURIA - Documents 40If it were to be concluded that the latter, limited prohibition is sufficient, the question would arise whether the prohibition at issue in the main proceedings, which appears necessary, is appropriate, within the meaning of Article2(2)(b)(i) of Directive 2000/78. EUR-Lex - 61984CJ0178 - EN - EUR-Lex The texts governing procedure can be consulted on the Curia site (https://curia.europa.eu). 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 the grounds referred to under Paragraph1. In order to guarantee the childrens individual and free development with regard to religion, belief and politics, employees are required to observe strictly the requirement of neutrality that applies in respect of parents, children and third parties. 2. It follows that, for the purposes of the application of Directive 2000/78, the terms religion and belief must be analysed as two facets of the same single ground of discrimination. Xuereb, L.S. In addition, in the same recital, the EU legislature also referred to the constitutional traditions common to the Member States, as general principles of EU law. Those instructions state, inter alia, that WABE is non-denominational and expressly welcomes religious and cultural diversity. 44In order to answer that question, it should be noted that, in accordance with Article1 of Directive 2000/78, the purpose of that directive is to establish a general framework for combating 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. Although it is for the referring court to verify that point, it should be noted that, according to the findings of that court, the rule at issue in Case C804/18 concerns, statistically, almost exclusively female workers who wear a headscarf because of their Muslim faith, and the Court therefore starts from the premiss that that rule constitutes a difference of treatment indirectly based on religion. 20Under Paragraph134 of the Brgerliches Gesetzbuch (Civil Code), any legal act contrary to a statutory prohibition shall be void unless otherwise provided by law. 36MJ brought an action before the national courts seeking a declaration that that instruction was invalid and compensation for the damage suffered. (3)If Questions 2(a) and 2(b) are answered in the negative: In the examination of an instruction based on an internal rule of a private undertaking which prohibits the wearing of prominent, large-sized signs of religious, political or other philosophical beliefs, must national rules of constitutional status which protect freedom of religion be set aside because of primary EU law, even where primary EU law, such as, for example, Article16 of the [Charter], recognises national laws and practices?. 1949 I, p.1, the GG): (1)Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable., (2)The undisturbed practice of religion shall be guaranteed.. In the exercise of that discretion, the employer must also take into account disabilities of the employee., The disputes in the main proceedings and the questions referred for a preliminary ruling. In July 2016, MH instructed her to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs. 39In the present case, the referring court considers that MHs internal directive, which has the nature of a general rule, constitutes unequal treatment indirectly based on religion, for the purpose of Paragraph3(2) of the AGG and Article2(2)(b) of Directive 2000/78. Rossi and I.Jarukaitis, Judges. 7Article3(1) of Directive 2000/78 states as follows: Within the limits of the areas of competence conferred on the [European Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (c)employment and working conditions, including dismissals and pay; 8Article8(1) of Directive 2000/78 provides: 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 this Directive.. General Court rules on Such documents in essence 28On 4June 2018, IX came to work again wearing a headscarf. 54Since it appears from the file before the court that WABE also required another employee wearing a religious cross to remove that sign, it appears prima facie that the internal rule at issue in the main proceedings was applied to IX without any difference of treatment by comparison with any other person working for WABE, with the result that it cannot be considered that IX suffered a difference of treatment directly based on her religious beliefs, for the purpose of Article2(2)(a) of Directive 2000/78. Under Article2(1) of that directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article1 thereof. Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons at a particular disadvantage compared with other persons on any of the grounds referred to under Paragraph1, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.. Moreover, IX cannot be transferred to a post which does not involve contact with the children and their parents since such a post does not correspond to her abilities and qualifications. In order to determine whether that policy is sufficient to justify objectively a difference of treatment indirectly based on religion or belief, it must be verified, as can be seen from paragraph64 above, whether it meets a genuine need on the part of the undertaking. 77In that regard, it should be noted that a policy of neutrality within an undertaking, such as that referred to by the first question in Case C341/19, can be effectively pursued only if no visible manifestation of political, philosophical or religious beliefs is allowed when workers are in contact with customers or with other workers, since the wearing of any sign, even a small-sized one, undermines the ability of that measure to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality. In that context, it asks whether a difference of treatment based on religion and/or gender may be justified by a policy of neutrality established in order to take account of customers wishes. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article1. Part (b) of the second question in Case C804/18 and part (b) of the second question in Case C341/19. The referring court asks in that respect whether it is necessary, in examining the appropriate nature of that prohibition, to weigh the rights laid down in Article16 of the Charter against those laid down in Article10 of the Charter or whether that weighing should occur only when applying the general rule in the individual case concerned, for example when an instruction is given to an employee or when an employee is dismissed. Although the application of an internal rule such as that referred to in paragraph52 above is indeed capable of causing particular inconvenience for such workers, that has no bearing on the finding, set out in that paragraph, that that rule, reflecting a policy of political, philosophical and religious neutrality on the part of the employer, does not, in principle, establish a difference of treatment between workers based on a criterion that is inextricably linked to religion or belief, within the meaning of Article1 of Directive 2000/78. Such conflicts, arising from the different religions and cultures represented in the undertaking, have already occurred several times in the past. 43By its first question in Case C804/18, the referring court asks, in essence, whether Article1 and Article2(2)(a) of Directive 2000/78 must be interpreted as meaning that an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace constitutes, with regard to workers who observe certain dress codes based on religious precepts, direct discrimination based on religion or belief, within the meaning of that directive. Following MJs refusal to comply with that request, she was sent home. 72In that regard, it should be noted at the outset that, although that question is premised on the existence of indirect discrimination, the fact remains that, as, inter alia, the European Commission argued in its observations in Case C341/19, an internal rule of an undertaking which, like that at issue in that case, prohibits only the wearing of conspicuous, large-sized signs is liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering. 1 This request for a preliminary ruling relates to the interpretation of Articles 2 (1) and 135 (1) of Council Directive 2006/112/EC of 28 November 25In March 2018, WABE adopted the Instructions on observing the requirement of neutrality with a view to applying them in its establishments. Accordingly, a difference of treatment, such as that referred to in part (a) of the second question of Case C804/18, does not amount to indirect discrimination, within the meaning of Article2(2)(b) of Directive 2000/78, if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary (see, to that effect, judgment of 14March 2017, Bougnaoui and ADDH, C188/15, EU:C:2017:204, paragraph33). 73As pointed out in paragraph52 above, unequal treatment resulting from a rule or practice which is based on a criterion that is inextricably linked to a protected ground, in the present case religion or belief, must be regarded as being directly based on that ground. WABE argues that, by its judgment of 14March 2017, G4S Secure Solutions (C157/15, EU:C:2017:203), the Court definitively ruled on the question of the balancing of fundamental rights in the light of the Charter in the case of a requirement of neutrality imposed by the employer. EUR-Lex - 62011CJ0219 - EN - EUR-Lex Share. CURIA - Documents - curia.europa.eu CURIA - Documents - europa.eu 84It must therefore be observed that the interpretation of Directive 2000/78 thus adopted is in accordance with the case-law of the Court and that it ensures that, when several fundamental rights and principles enshrined in the Treaties are at issue, such as, in the present case, the principle of non-discrimination enshrined in Article21 of the Charter and the right to freedom of thought, conscience and religion guaranteed in Article10 of the Charter, on the one hand, and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions recognised in Article14(3) of the Charter and the freedom to conduct a business recognised in Article16 of the Charter, on the other hand, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them (see, to that effect, judgment of 17December 2020, Centraal Isralitisch Consistorie van Belgi and Others, C336/19, EU:C:2020:1031, paragraph65 and the case-law cited). After she refused to remove that headscarf, she was temporarily suspended by the head of the child day care centre. 82Accordingly, when examining whether the restriction resulting from a measure intended to ensure the application of a policy of political, philosophical and religious neutrality is appropriate, within the meaning of Article2(2)(b)(i) of Directive 2000/78, account must be taken of the various rights and freedoms in question. 87Moreover, the framework thus created shows that, in Directive 2000/78, the EU legislature did not itself effect the necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment, for the purposes of Article2(2)(b)(i) of that directive, but left it to the Member States and their courts to achieve that reconciliation (see, by analogy, judgment of 17December 2020, Centraal Isralitisch Consistorie van Belgi and Others, C336/19, EU:C:2020:1031, paragraph47). Part (a) of the second question in Case C804/18. 76As noted in paragraph63 above, a policy of neutrality may constitute a legitimate aim, within the meaning of Article2(2)(b)(i) of Directive 2000/78. 4/12/2021 CURIA - Documents - Refworld 58As a preliminary point, as regards the existence of indirect discrimination on the grounds of gender, referred to in this question, it should be noted that, as the Advocate General observed in point59 of his Opinion, that ground of discrimination does not fall within the scope of Directive 2000/78, which is the only EU law measure to which this question relates. 4Recitals1, 4, 11 and 12 of Directive 2000/78 state as follows: (1)In accordance with Article6 [TEU], the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4November 1950] and as they result from the constitutional traditions common to the Member States, as general principles of [EU] law. 52As regards, more specifically, the question whether an internal rule of a private undertaking prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace constitutes direct discrimination on the grounds of religion or belief, within the meaning of Article2(2)(a) of Directive 2000/78, the Court has already held that such a rule does not constitute discrimination of that sort provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs (judgment of 14March 2017, G4S Secure Solutions, C157/15, EU:C:2017:203, paragraphs30 and 32). In that connection, the following regulations serve as principles for specifically observing the requirement of neutrality in the workplace. 49It is also apparent from the case-law of the Court that, by referring, first, to discrimination on any of the grounds referred to in Article1 of Directive 2000/78 and, secondly, to less favourable treatment on any of those grounds, and by using the terms another [person] and other persons, the wording and the context of Article2(1) and (2) of that directive do not permit the conclusion that, regarding the protected ground of religion or belief referred to in Article1 thereof, the prohibition of discrimination laid down by that directive is limited only to differences in treatment between persons having a particular religion or belief and those who do not. In the event of a violation of the prohibition of discrimination, the employer shall be under the obligation to compensate the damage arising therefrom. Thus, the referring court states that it will have to examine, first, whether that instruction and the internal directive on which it is based constitute unequal treatment within the meaning of Paragraph3 of the AGG and whether that unequal treatment constitutes unlawful discrimination. Language of document : ECLI:EU:C:2022:272. 88Consequently, Directive 2000/78 allows account to be taken of the specific context of each Member State and allows each Member State a margin of discretion in achieving the necessary reconciliation of the different rights and interests at issue, in order to ensure a fair balance between them. 86As regards, in the second place, the question whether a national provision relating to freedom of religion and conscience may be regarded as a national provision which is more favourable to the protection of the principle of equal treatment, within the meaning of Article8(1) of Directive 2000/78, it should be borne in mind that, as is apparent from its title, that directive establishes a general framework for equal treatment in employment and occupation, which leaves a margin of discretion to the Member States, taking into account the diversity of their approaches as regards the place accorded to religion and beliefs within their respective systems. the Swedish Government, by H.Eklinder, C.Meyer-Seitz, H.Shev, J.Lundberg and A.Falk, acting as Agents. 15Paragraph2(1) of the AGG provides: For the purposes of this Act, any discrimination within the meaning of Paragraph1 shall be inadmissible in relation to: 1.conditions for access to dependent employment and self-employment, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of professional hierarchy, including promotion; 2.employment conditions and working conditions, including pay and reasons for dismissal, in particular in contracts between individuals, collective bargaining agreements and measures to implement and terminate an employment relationship, as well as for promotion; 16Paragraph3(1) and (2) of the AGG provides: 1. (a)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 the grounds referred to in Article1; (b)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 unless: (i)that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, 5.

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