The 10th of all EU-r rights: the freedom of conscience, thought, religion and how the Charter contributes

We all would like to be free as a bird. And in a way we are: our thoughts are by definition free. Still, in a given society, there is a risk that our convictions or religions put limitations on our opportunties. Imagine, for instance, you were a medical doctor in a leading position who was fired because you didn’t sufficiently share the “ethos” of your employer – a Catholic clinic in Germany. This was the fate of of Professor Romuald, who was dismissed because he entered into a second, civil marriage after a divorce (he was married in accordance with the Roman Catholic rite). A ten year long legal dispute followed.[1] The story of Vera Egenberger is somewhat related, Vera – being a person of no denomination – was for that reason, not invited for a job interview at the “Evangelische Werk”.

The Charter right, in action

In both cases the employers could refer to the fact that the German constitution guarantees  “each religious society shall arrange and administer its affairs independently within the limits of the law that applies to everyone.”[2] And even EU legislation, more precisely Article 4(2) of the EU Antidiscrimination Directive 2000/78 provides some leeway by stating that churches and other organisations with a certain “ethos” may differentiate based on a person’s religion or belief, withoutthis  constituting discrimination.[3] Nevertheless, the Court found that in both cases  the Charter of Fundamental Rights poses some limits to this discretion, thereby providing protection to the two employees.[4]

The Charter provides that “Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance”.[5] So far, the provision has not been frequently used before national and EU courts.

While the EU does not hold a legislative competence to rule on religion, anti-discrimination[6] law opens up to EU influence as the ‘headscarf cases’ before the EU Court in Luxembourg also showed.[7] Freedom of religion plays also a role in EU asylum law: an asylum seeker qualifies as a refugee if he can make plausible that as “a result of exercising that freedom in his country of origin, [he] runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment”.[8]

Three example of how EU legislation engages with religion Member States have to make sure that whenever children are detained, they “ensure respect for their freedom of religion or belief” (Article 12(5) of Directive (EU) 2016/800 on procedural safeguards for children). EU legislation establishes that animals shall only be killed after stunning with the exception of animals “subject to particular methods of slaughter prescribed by religious rites (Art. 4(2) of Directive (EC) No 1099/2009 on the protection of animals at the time of killing).[9] In its external relations the EU committed to fight for the freedom of religion: EU Guidelines on the promotion and protection of freedom of religion or belief as adopted in 2013.

What do the constitutions of the Member States say?

The constitutions of all EU Member States have provisions on the freedom of conscience, thought and religion. The freedom of religion occupies an especially prominent place in these core legal texts. Often these provisions are not only about the freedom to believe in, and practice a religion (alone or in community with others) but also about how the respective State relates to religion and churches.[10]

Many constitutional texts underline that one cannot force anyone to join or practice a certain religion as the examples of Austria, Cyprus, Estonia, Finland, Luxembourg, Poland and Romania show.[11] That this also applies for coercion in other contexts is made explicit in the constitution of Sweden that prohibits coercing anyone “in a meeting for shaping of opinion or a demonstration or other manifestation of opinion, or to belong to a political association, religious community or other association of opinion”.[12] The Slovak constitution explicitly establishes a right to change ones religion[13] and the Greek constitution states that “Proselytism is prohibited”.[14]

A specific expression of the freedom of conscience is conscientious objection, in the context of the military service. Article 8 of the Charter states in its second paragraph: “The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.” Only a fourth of the Member States have such a clause in their constitutions, namely Austria, the Czech Republic, Germany, Poland, Portugal, Slovak Republic and Spain.[15] A religious conviction is however no excuse for violating the law – this is underlined in the constitutions of Belgium, Estonia, Greece, Lithuania and Luxembourg.[16]

So what?

While in general the European Union is rather agnostic about religion, once in a while religion is discussed in the process of European integration.[17] For instance when debating whether or not the EU treaties should include a reference to god[18] or when conducting the regular dialogue with churches, religious associations and non-confessional organisations[19]. The EU “endorses the notion that people should be free – at any time – to have, to profess, to maintain, to adopt, and to change their own beliefs”.[20] The effects of EU law become especially visible where the EU holds strong competences as is the case in the area of employment. It is to be expected that Charter rights such as Article 10 (but also others such as non-discrimination or the right to conduct a business) will increasingly play a role in managing diversity at the workplace and beyond.[21]

Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

[1] See CJUE, case C‑68/17, judgement of 11 September 2018.

[2] See Article 137 (3) of the Weimar Constitution (note that in accordance with Article 140 of the German Grundgesetz, the provisions of Articles 136 to 139 and 141 of the Weimar Constitution of 11 August 1919 are an integral part of the GG).

[3] The provision says: “Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.”

[4] Note that the relevant provisions are next to Article 10, mainly Article 21 (the prohibition to discriminate) and Article 47 (the right to a fair trial). Please also note that in the case of Egenberger a constitutional complaint is still pending before the German Constitutional Court: after the national labour court implemented the judgment of the CJEU, the Diakonie brought the case before the Constitutional Court. The complaint is admissible if the Constitutional Court considers the autonomy of the churches an integral part of Germany’s constitutional identity. See on this Sauer, Heiko, Kirchliche Selbst­bestimmung und deutsche Verfassungs­identität: Überlegungen zum Fall „Egenberger“, VerfBlog, 2019/5/03.

[5] Thereby, the Charter more or less copies the text of Art. 9 of the European Convention of Human Rights. Both provisions provide protection in three dimensions: the internal (the freedom to believe or not), the external (to act in line with these beliefs) and the collective (the relationship between the state and religious communities etc) dimensions.

[6] See Art. 19 TFEU and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

[7] In the case of Samira Achbita, the court found that a general rule in an undertaking providing that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs” does not necessarily constitute discrimination based on religion. See CJEU, case C-157/15, judgment of 14 March 2017. The outcome in the case of Asma Bougnaoui was different. She was fired because her wearing of a scarf irritated the her employer’s clients, who invoked a “principle of neutrality” and felt “obliged, vis-à-vis [their] customers, to require that discretion is observed as regards the expression of the personal preferences of [the] employees”. The court did not accept this argument and ruled that Art. 4(1) of Directive 2000/78/EC “must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf” does not qualify as “genuine and determining occupational requirement” justifying the dismissal. See CJEU, case C-188/15, judgment of 14.03.2017.

[8] See CJEU, Joined Cases C‑71/11 and C‑99/11, judgement of 5.09.2012.

[9] The respect for religious rites is even laid down in the EU treaties, see e.g. Art. 13 TFEU which states that in “formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”

[10] That the State is to be kept separated from the church(es) is spelled out in the constitutions of Bulgaria, France, Hungary, Latvia, Portugal and Slovenia (see Art. 13 (2) of the Bulgarian constitution, Art. 1 of the French constitution states that the Republic is “secular”, Art VII (3) of the Hungarian constitution, Art. 99 of the Latvian constitution, Art. 41 (4) of the Portuguese constitution, Art. 7 of the Slovenian constitution). The Irish constitution states that the State “does not endow any religion” (Art. 44.2.2.). The Spanish constitution says that “no religion shall have a state character” (Art. 16 (3)). The constitutions of Estonia (Art. 40) and Lithuania (Art. 43) underline that there is no “state church” or “state religion”. Other constitutions do, to the contrary show a preference for a certain religion such is the case in Bulgaria where Article 13 (3) states that “Eastern Orthodox Christianity shall be considered the traditional religion in the Republic of Bulgaria”. In Section 6 of the Danish constitution it is spelled out that the “King must be a member of the Evangelical Lutheran Church” – a job description that does not appear to leave much space for second thoughts. Many constitutions establish that churches are autonomous as is the case for Austria, Belgium, Czech Republic, Ireland, Poland and Romania (Art. 15 of the Basic Law on the General Rights of Nationals, Art. 21 of the Belgium constitution, Art. 16(2) of the Czech constitution, Art. 44.2.5. of the Irish constitution, Art. 25(2) of the Polish constitution, Art. 29(5) of the Romanian constitution. For Germany see above.) Interestingly, the constitutions of Bulgaria and Romania explicitly engage the State to ensure tolerance and respect amongst (the believers of) different denominations (Art. 37(1) of the Bulgarian constitution, Art. 29(4) of the Romanian constitution).

[11] Art. 14(3) of the Basic Law on the General Rights of Nationals, Art. 18(5) constitution of Cyprus, Art. 41 of the Estonian constitution, Section 11 of the Finnish constitution, Art. 20 of the constitution of Luxemburg, Art. 53(6) of the Polish constitution, Art. 29(1) of the Romanian constitution

[12] Chapter 2, Art. 2 of the Swedish constitution (Instrument of government).

[13] Art. 24(1) of the Slovak constitution.

[14] Art. 13(2) of the Greek constitution.

[15] Art. 9a of the Austrian constitution, Art. 15(3) of the Czech Republic, Art. 12a(2) of the German constitution, Art. 85(3) of the Polish constitution, Art. 41(6) of the Portuguese constitution, Art. 25(2) of the Slovak constitution, Section 30(2) of the Spanish constitution.

[16] Art. 19 of the Belgian constitution, Art. 41 of the Estonian constitution, Art. 13(4) of the Greek constitution, Art. 27 of the Lithuanian constitution, Art. 19 of the constitution of Luxembourg.

[17] See Gabriel N. Toggenburg, Ein Blick auf das Verhältnis zwischen Religion und dem Recht der Europäischen Union, im Tagungsband des 9. Rechtswissenschaftlichen Fakultätstages in Graz „Staat und Religion“, 2014, S. 203-212.

[18] See Gabriel N. Toggenburg, Gott auch für Nichtgläubige, in Die Furche, 14.06.2004, p. 4.

[19] See Art. 17 TEU: “ 1.The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status under national law of philosophical and non-confessional organisations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.”

[20] EU Statement on Freedom of Religion or Belief; RC.DEL/103/99 23 September 1999; Review Conference Human Dimension, on 23 September 1999.

[21] When considering whether or not a limitation of the freedom of conscience, thought or religion can be justified, Art. 9 (2) of the European Convention of Human Rights is key (this is due to Art 52(3) of the Charter: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”).