Advocate General Eleanor Sharpston has published her opinion in Bougnaoui and ADDH  CJEU C-188/15, a reference from France about an employee who wore a hijab at work , was told by her employer to remove it while visiting a client after the client’s staff complained about her appearance and was dismissed after she refused to do so. In the course of the subsequent proceedings for unfair dismissal, the Cour de Cassation referred the following question to the Court of Justice under Article 267 TFEU:
“Must Article 4(1) of [Directive 2000/78] be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?” .
AG Sharpston’s opinion
In her general remarks, AG Sharpston notes that
“The issues that arise in this Opinion do not relate to the Islamic faith or to members of the female sex alone. The wearing of religious apparel is not limited to one specific religion or to one specific gender. In some cases, there are what may be termed absolute rules, although these will not necessarily apply to all adherents of the faith in question or in all circumstances. In other cases, there may be one or more styles of apparel available to adherents, who may choose to wear them either permanently (at least when in public) or at times and/or places they consider appropriate. Thus, by way of example only, nuns in the Roman Catholic and Anglican faiths were traditionally required to wear a form of habit incorporating a headdress or veil. In some orders, that distinctive apparel may now be replaced by a small discreet cross pinned to ordinary civilian apparel. Similarly, the use of the kippah by male adherents to the Jewish faith is well known. While there is considerable debate as to whether there is an obligation to cover the head at all times (rather than only when at prayer), many orthodox members of the faith will do so in practice. Male adherents to the Sikh faith are, in general, required to wear a dastar (or turban) at all times and may not remove it in public” .
The legislation and case-law of member states on wearing religious dress in employment varied widely . France and Belgium prohibited clothing that concealed the face in public places; and while not specifically targeted at the employment sector, the scope of the prohibition might inevitably restrict the ability of certain persons (including Muslim women wearing the burqa or niqab) to gain access to the employment market . France and Belgium prohibited public employees from wearing religious symbols in the workplace on grounds of laïcité and neutralité , while other states, such as Denmark, the Netherlands and the UK took a more liberal view . There were equally wide variations in relation to private-sector employment . Moreover:
“Some perceive wearing the headscarf as a feminist statement, as it represents a woman’s right to assert her choice and her religious freedom to be a Muslim who wishes to manifest her faith in that way. Others see the headscarf as a symbol of oppression of women. Either view may no doubt find support in individual cases and particular contexts. What the Court should not do … is to adopt the view that, because there may be some occasions where the wearing of the headscarf should or could be deemed oppressive, that is so in every instance. Rather, I would adopt the attitude of the Strasbourg Court ..; the matter is best understood as an expression of cultural and religious freedom” .
She concludes that the Court should reply to the Cour de Cassation as follows:
“(1) A rule laid down in the workplace regulations of an undertaking which prohibits employees of the undertaking from wearing religious signs or apparel when in contact with customers of the business involves direct discrimination on grounds of religion or belief, to which neither Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation nor any of the other derogations from the prohibition of direct discrimination on grounds of religion or belief which that directive lays down applies. That is a fortiori the case when the rule in question applies to the wearing of the Islamic headscarf alone.
(2) Where there is indirect discrimination on grounds of religion or belief, Article 2(2)(b)(i) of Directive 2000/78 should be construed so as to recognise that the interests of the employer’s business will constitute a legitimate aim for the purposes of that provision. Such discrimination is nevertheless justified only if it is proportionate to that aim.” [135: emphasis added]
This the second recent hijab case to come before the CJEU. Advocate General Kokott published her opinion in Achbita & Anor v G4S Secure Solutions NV  CJEU C-157/15 in May, on a reference from the Belgian Cour de Cassation/Hof van Cassatie: we noted it here. AG Kokott concluded:
“(1) The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion under Article 2(2)(b) of that directive.
(2) Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.
In that connection, the following factors, in particular, must be taken into account:
- the size and conspicuousness of the religious symbol,
- the nature of the employee’s activity,
- the context in which she has to perform that activity, and
- the national identity of the Member State concerned.” [141: emphasis added]
In short, AG Sharpston and AG Kokott seem to have arrived at opposite views as to the general principle at stake. It is conceivably possible that the Court – assuming that it rules on the two cases separately – will find it possible to distinguish them on the facts; but the issue of principle appears to be the same in both.
It is notable that AG Sharpston begins her recital of the current law  by setting out the terms of Article 9 ECHR and goes on to analyse the relevant Strasbourg case-law in detail [45-57]. AG Kokott, on the other hand, restricts herself to an exposition of the terms of Directive 2000/78 and the applicable national law [7-15] and argues that the CJEU “following the practice of the ECtHR in relation to Article 9 ECHR and Article 14 ECHR should grant the national authorities, in particular the national courts, a measure of discretion which they may exercise in strict accordance with EU rules” .
AG Sharpston appears to attach much greater weight to Article 9 ECHR and the effect of the Treaty of Lisbon than does AG Kokott. Jean-Baptiste Jacquin, writing in Le Monde, suggests that the Court should now decide to join the two cases but cautions that the matter will not be resolved “until the second half of 2017”.
Finally, it should be emphasised that an AG’s Opinion, however thorough, judicious and carefully researched, is no more than that: an opinion. It does not bind the Court.