EU Law Blog

The EU has some complex issues with religion and multiculturalism. Now the Netherlands is considering banning the wearing of the burqa. This seems a bit surprising in light of the Member States’ expressed commitment under the Treaties to human rights and the rule of law. But it’s not the first time this sort of thing has happened. The BBC story refers to a similar ban in Belgium. And a French law banned the wearing of religious symbols in 2004.

The European Court of Human Rights decided in November 2005 in a case brought by Leyla Sahin (which is available at the Court’s web site) that Istanbul University’s ban on wearing headscarves was valid:

In democratic societies, in which several religions coexist within one and the same opulation, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected… This follows both from paragraph 2 of Article 9 and the State’s positive obligation under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention.

There’s more.
The ECHR went on to say:

Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position… Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society…Where these “rights and freedoms” are themselves among those guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society”.

United Sikhs are challenging the French law as contrary to European Community law. Given the ECHR’s decisions in this area the European Convention isn’t necessarily going to be helpful (although the interpretation of Article 9 varies - in the UK, for example, which does not have a commitment to secularism, the Court of Appeal last year suggested a greater need for deference to religious views about clothing than the Sahin case suggests).

What about Community law? In the context of employment and occupation there is a Directive on Equal Treatment which the Member States should have implemented by the end of 2003 (with some leeway in relation to age and disability discrimination). Article 1 of the Directive states:

The purpose of this Directive is to lay down 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.

But this directive doesn’t address the issue of discrimination outside the context of employment or occupation. There is another directive on equal treatment between persons irrespective of racial or ethnic origin which has a broader scope (it applies in the context of education and “social advantages”). But relying on this directive would seem to require a conflation between ethnicity and religion which may be appropriate for Sikhs but is likely to be less useful for other religious groups.