Europe: Two-Level Secularism

The dispute which gave rise to the judgment of November 28 concerned an employee of the Belgian municipality of Ans who was prohibited from wearing the Islamic headscarf in the workplace in 2021.

The employee challenged this decision in court for violation of her freedom of religion and for discrimination. The Belgian court wondered whether the rule of neutrality imposed by the municipality of Ans caused discrimination contrary to European Union (EU) law, making a “preliminary referral” of this question to the Court of Justice of the European Union (CJEU).

For the record, in European law, the preliminary ruling allows the courts of the Member States, in the context of a dispute before them, to question the Court on the interpretation of Union law or on the validity of an act of the Union. The Court does not decide the national dispute, and it is up to the national court to resolve the case in accordance with the European Court's decision.

In the Ans case, the CJEU considers that in order “to establish a completely neutral administrative environment, a public administration may prohibit the visible wearing in the workplace of any sign revealing philosophical or religious convictions.”

The CJEU has already ruled several times on cases banning the Islamic headscarf by private employers, but this is the first decision concerning public service.

But as it is not a contradiction, the Court at the same time recognizes the right of any administration to authorize the wearing of religious symbols for all of its employees. The CJEU, however, underlines the fact that this decision to prohibit or authorize must apply each time to all employees, without distinction between beliefs and convictions.

This form of secularism risks setting up a two-level system in the public administrations of the Member States, between those which will accept the wearing of religious signs to please a particular community, and those who will refuse them.