· The Court of Justice of the European Union has given a judgement recognising the anticipation of prohibiting the wearing of spiritual symbols in the workplace as public administration offices.
· In the Court's view, the public administration, in order to establish a completely neutral administrative environment, may prohibit the wearing of any visible symbols in the workplace revealing belief in the planet or religion.
· The Polish Constitution orders public authorities to keep impartiality in worldview matters and to guarantee freedom of expression of religious, worldview and philosophical beliefs in public life.
· Restrictions on the expression of spiritual beliefs can only be introduced to defend “the safety of the state, public order, health, morality or the freedom and rights of others”.
Case of a Belgian woman
On 28 November 2023. The Court of Justice of the European Union has commented on compliance with Directive 2000/78/EC with the provisions of the Staff Regulations on the prohibition of any spiritual symbol. The case afraid a female working as head of the office in the local government administration of 1 of the municipalities in Belgium. This function was performed without contact with citizens. In February 2021, an worker applied for a licence to wear a “bust at work”. The application was rejected and she was banned from wearing symbols at work revealing her spiritual beliefs. In March 2021, a fresh working regulation was enacted, introducing an work of ‘exclusivity’ in the workplace. According to the fresh principle, “a individual is obliged to observe the rule of neutrality, meaning that he refrains from all forms of proselytism and is prohibited from wearing any visible symbols that could indicate his ideological or worldviewal affiliation or his political or spiritual beliefs. This rule applies both to the worker’s contacts with citizens and to his relation with supervisors and another co-workers.”
In response, the female brought an action to the court arguing that her spiritual freedom had been violated and that she was besides discriminated against on grounds of religion. The Liège Labour Court decided to stay the proceedings and to mention the questions referred for a preliminary ruling to the Court in order to find whether the rules on strict neutrality laid down by the municipality lead to discrimination contrary to Union law (Council Directive 2000/78/EC of 27 November 2000 laying down general framework conditions for equal treatment in employment and occupation).
TEU: Establishing a completely neutral working environment in public administration is compatible with European Union law
In the judgement in question, the judges stated that ‘the interior regulation of the municipal administration prohibiting, in a general and non-differentiated manner, the employees of that administration from wearing all visible symbols at the workplace revealing, in particular, the views of the planet or religion may be justified by the will to establish, in view of the context of the functioning of that administration, a completely neutral administrative environment, provided that the regulation is appropriate, essential and proportionate in the light of that context and taking into account the various rights and interests involved’.
In another words, in the light of the judgement given, the provisions of the employment regulations of undertakings prohibiting workers from expressing their religious, worldly or political beliefs by expression, dress or otherwise does not constitute direct discrimination ‘on grounds of religion or belief’ within the meaning of Directive 2000/78/EC. This provision must only be applied in a general and non-discriminatory manner to all employees in the public administration concerned.
This is not the first ruling of the TEU on the employer’s ‘neutrality policy’
In the judgement of 15 July 2021, C-804/18, The Court held that employers have the right to conduct a policy of neutrality, which is an expression of the freedom to conduct business. At the same time, the judges stressed that on the part of the employer there is simply a request to show "the real request to conduct a business that is religiously and globally neutral" by indicating, for example, client expectations. The Court besides held that this request may be due to the adverse consequences that an employer might have had had had he pursued a different policy (e.g. by losing customers). Furthermore, in the opinion of the judges, specified policies should be applied consistently and consistently and adequately to the actual degree and importance of the possible consequences.
Similarly, 13 October 2022. The Court ruled in Case C-344/20, in which it pointed out that the provision of the employment regulations of undertakings prohibiting workers from expressing their spiritual beliefs, inter alia, by dress, does not constitute direct discrimination on grounds of religion or belief, provided that specified a provision is applied in a general and non-discriminatory manner. In addition, the Court stressed that employers may apply the alleged neutrality policy, but only where it is justified and necessary.
"wide framework" to defend the right to express spiritual freedom in the Polish Constitution
The right to spiritual freedom in the external sphere has been regulated in the Polish legal order at the level of the Constitution. In this context, Articles 25(2), 53(5) and 31(3) should be taken into account. The first of these provisions requires public authorities to stay impartial in worldview matters and to guarantee freedom of expression of religious, worldview and philosophical beliefs in public life. However, Article 53(5) regulates the regulation of freedom to express religion. According to that provision, any restrictions in this respect may be imposed only on the basis of the law and only in the case of a given case, namely in order to defend ‘the safety of the State, public policy, health, morals or freedoms of others’.
Article 31(3) of the Constitution lays down formal and substantive conditions allowing restrictions on rights and freedoms. The values justifying the regulation of freedom and rights include: safety or public order, environmental protection, protection of wellness and public morality, protection of the freedom and rights of others. Their catalogue is closed and cannot be interpreted expanding. Importantly, this provision introduces (aside from another conditions) a prohibition on restrictions if they may violate the "essentiality of freedom and rights". In another words, any regulation on the freedom of rights and freedoms, including spiritual freedom, must not violate certain of their fundamental elements ("core"), without which specified a law or freedom will not be at all.
As the representatives of the doctrine of constitutional law note, in Article 31(3) we find general rules for limiting all rights and freedoms. In the case of restrictions on freedom of conscience and religion of the latter, Article 53(5) applies, which does not accidentally have a narrower scope of conditions and a somewhat different "verbal table". The bodymaker did so on intent to supply “the widest possible framework for the realisation of spiritual freedom”. Consequently, the legislator, in order to restrict spiritual freedom in the external sphere, must fulfil both the conditions of Article 53(5) and the additional conditions of Article 31(3) of the Constitution.
‘Neutrality’ or ‘unbiasedness’?
In the context of the introduction of the ban on the wearing of spiritual symbols by public administration employees, it is hard to recognise that the wearing of e.g. a cross on a chain or a medal (e.g. as souvenirs of the First Holy Communion) will in any way contribute to the safety of the state. It would besides be absurd to say that specified conduct is incompatible with public order, health, morality or is contrary to the freedoms and rights of others. On the another hand, the judgement of the TEU shows a dangerous direction towards the European Union. We already have a gender-neutral language and gender-neutral education. This EU has besides been joined by climate neutrality, which involves, for example, plans to introduce in Polish cities Clean Transport Zone. Now a "neutral" public administration has joined this group.
Perhaps the remedy to the failure of trying to make everything "neutral" is the concept adopted by the Polish legislature in Article 25(2) of the Constitution. The unbiasedness of authorities in spiritual or world-looking matters better ensures that individuals exercise their rights and creates an environment of tolerance and common acceptance for different views than an order to keep in the external sphere the appearance of no belief or belief.
Dr. Kinga Szymanska – Analyst of the Ordo Iuris investigation and Analysis Centre
== sync, corrected by elderman == @elder_man
