European Court of Justice ruling allows headscarf ban for employees in the public sector

Created by Mag. Sylvia Unger |
Employment Law for Companies

1. Introduction

In decision C-148/22 of November 28, 2023 (OP/Commune d'Ans), the European Court of Justice (ECJ) dealt with the ban on headscarves in the public sector; link to the decision. The decision has significant implications for the wearing of religious and ideological symbols at work in public authorities.


2. Facts of the case

A contract employee of a Belgian municipality (plaintiff) applied for permission to wear a headscarf after several years of service. She was initially prohibited from doing so by the municipality (defendant) until the municipal council adopted a general regulation. This amended the work regulations to the effect that all employees of the municipality are prohibited from wearing religious symbols at work, regardless of whether they have contact with political parties or not, and obliged the employees to remain neutral. The plaintiff felt that her freedom of religion had been violated and therefore brought an action before the competent Belgian labor court. 

The court doubted whether a general ban on the wearing of religious signs for all employees, whether in contact with the public or not, was compatible with EU Directive 2000/78 (Directive establishing a general framework for equal treatment in employment and occupation). The Belgian court therefore referred the case to the ECJ for a preliminary ruling and interpretation of Directive 2000/78. 


3. Legal opinion of the ECJ

The ECJ found that a ban on wearing religious signs in the workplace does not constitute direct discrimination, provided that it applies to all employees without restriction. Because every individual can have a religious or spiritual belief, such a rule, provided it is applied indiscriminately and generally, does not constitute unequal treatment. 

However, such a prohibition may constitute indirect discrimination if it turns out that an apparently neutral provision leads to persons with a certain religion or belief being particularly disadvantaged, as is the case here with wearers of Islamic headscarves.

In the opinion of this court, the ban on wearing religious signs constituted indirect discrimination, as it objectively affected everyone, but was applied subjectively, and thus particularly affected wearers of Islamic headscarves.

According to Art 2 para 2 lit b Z i of Directive 2000/78, however, such unequal treatment does not lead to discrimination if it is objectively justified by a legitimate aim and the means of achieving it are appropriate and necessary. However, such an objective must be pursued systematically and equally towards all employees in order not to have a discriminatory effect again. In this case, the objective was to create a neutral administration, which is a legitimate objective

The regulation in question was therefore not discriminatory because Directive 2000/78 only provides the EU Member States with a general framework for the implementation of equal treatment and has deliberately left room for maneuver. This enables the Member States to enact regulations and bans on the wearing of religious symbols during work in the public service, in accordance with the legitimate objective, if they consider this to be important for a neutral atmosphere in the administration. 

According to the ECJ, the implementation of the objective of neutral administration of the municipality was not discriminatory as it was applied systematically and equally to all employees and was appropriate, necessary and proportionate to achieve the objective of neutral administration. The prohibition did not contradict Directive 2000/78.


4. Conclusion for Austria 

With this ruling, the ECJ has clarified for all EU Member States that a Member State and its authorities can issue rules for its public administration that prohibit the wearing of religious symbols at work, regardless of whether the employees concerned have contact with political parties or not. 

It is therefore permissible to prohibit employees from wearing headscarves, for example, without this constituting discrimination within the meaning of Directive 2000/78. 

The prerequisite for such a ban is 

  • that it is justified by a legitimate aim, 
  • that the means of achieving this objective are both appropriate, 
  • and necessary.