Ronan McCrea, Professor of Constitutional and European Law, University College London

The Court of Justice recently issued five significant decisions regarding Directive 2000/78’s provisions on religious discrimination, a topic it hadn’t addressed in many years. This surge in rulings signifies the Court’s renewed focus on this area.

The latest case originated from Austria’s Supreme Court and concerned a law granting paid holidays on Good Friday to members of three minor Christian denominations, excluding others. Markus Achatzi, unaffiliated with these churches, contested his employer’s refusal to provide additional pay for working on Good Friday, claiming discrimination.

The Court determined that this Austrian law violated Directive 2000/78 and the EU Charter of Fundamental Rights’ Article 21, both prohibiting religious discrimination. It dismissed Poland’s argument that Article 17(1) TFEU, respecting national religious regulations, barred the Court’s involvement. The Court reiterated its stance that Article 17 merely expresses the Union’s neutrality toward Member States’ religious arrangements, not a blanket exemption from EU law compliance.

The Court ruled that granting holidays based solely on church membership constituted religious discrimination, rejecting Austria’s justification of Good Friday’s significance to those communities. The privilege lacked any requirement to observe religious duties, making recipients no different than any employee wanting Good Friday off. The law, providing paid holidays even if beneficiaries worked, further reinforced the Court’s view of direct discrimination.

The Court explored whether this discrimination was justified under the Directive. Article 2(5) allows exceptions for protecting others’ rights and freedoms, but the Court, emphasizing strict interpretation, found Austria’s law unnecessary for safeguarding religious freedom. Article 7(1) permits measures to address inequality, but the Court deemed the legislation disproportionate. It went beyond enabling religious observance, granting a full day off compared to limited time for other faiths’ ceremonies.

This ruling highlighted two issues: the horizontal direct effect of directives in private disputes within national law’s scope and the appropriate response to discriminatory privileges – leveling up (extending benefits) or leveling down (removing them). The Court, acknowledging the potential conflict between Austrian law and the Directive, emphasized national courts’ obligation to prioritize EU law objectives. It reiterated that Directive 2000/78 reflects the general principle against discrimination, directly applicable between individuals.

On leveling up or down, the Court stated that national courts must nullify discriminatory provisions and apply equal treatment, regardless of national legal competence. While this applies only with a valid point of reference, the Court found it in the Good Friday holiday provision, requiring national courts to recognize it for all employees, pending Austria’s legislative action to ensure equality.

Conclusion

This ruling reaffirms trends in interpreting Directive 2000/78’s religious provisions. The Court maintains a narrow view of Article 17 TEU, limiting it to state-religion relations, not a broad exemption from EU scrutiny. It favors an individualistic approach to religious freedom, opposing blanket advantages or disadvantages based on religion, consistent with the Strasbourg Court’s jurisprudence.

The Court’s preference for individual equality is evident in its criticism of Austria’s law. It highlighted the need to accommodate specific religious burdens rather than granting broad privileges. This raises questions about accommodating cultural religious practices not tied to devoutness, such as celebrating Eid without attending a mosque.

Finally, this case prompts broader questions about historically privileged minority religions in Europe. These groups often enjoy constitutional protections not always extended to newer, larger groups like Muslims. This discrepancy, coupled with individual rights considerations, creates tension. While respecting Member State autonomy in religious matters, the EU’s individualistic approach to religious freedom increasingly challenges blanket privileges for religious institutions and specific minorities.

Barnard & Peers: chapter 20

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