Abstract;Judgment — ECLI:EU:C:2021:594
Date: 2021-07-15
Language of the case: German
Court formation: Grand Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation   C-804/18 — 1 
Case C-804/18 
Request for a preliminary ruling 
Date lodged: 
20 December 2018 
Referring court: 
Arbeitsgericht Hamburg (Hamburg Labour Court, Germany) 
Date of the decision to refer: 
21 November 2018 
Applicant: 
IX 
Defendant: 
WABE e. V. 
  
Hamburg Labour Court 
Order 
[...]    In the case of 
[...] 
Ms        
IX      
[...]       
– Applicant – 
[...] 
v       
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 11. 2018 — CASE C-804/18 
 
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Company        
WABE e. V.       
[...]       
– Defendant – 
[...]       
[Or. 2] 
Hamburg Labour Court,   8th Chamber, 
makes the following order further to the hearing of 21 November 2018 
[...] 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Does a unilateral instruction from the employer prohibiting the wearing of 
any visible sign of political, ideological or religious beliefs constitute direct 
discrimination on the grounds of religion, within the meaning of Article 2(1) and 
Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 
establishing a general framework for equal treatment in employment and 
occupation, against employees who, due to religious covering requirements, 
follow certain clothing rules? 
2. Does a unilateral instruction from the employer prohibiting the wearing of 
any visible sign of political, ideological or religious beliefs constitute indirect 
discrimination on the grounds of religion and/or gender, within the meaning of 
Article 2(1) and Article 2(2)(b) of Directive 2000/78/EC, against a female 
employee who, due to her Muslim faith, wears a headscarf? 
In particular: 
(a) Can discrimination on the grounds of religion and/or gender be justified 
under Directive 2000/78/EC with the employer’s subjective wish to pursue a 
policy of political, ideological and religious neutrality even where the employer 
thereby seeks to meet the subjective wishes of his customers? [Or. 3] 
(b) Do Directive 2000/78/EC and/or the fundamental right of freedom to 
conduct a business under Article 16 of the Charter of Fundamental Rights of the 
European Union in view of Article 8(1) of Directive 2000/78/EC preclude a 
national regulation according to which, in order to protect the fundamental right of 
freedom of religion, a ban on religious clothing may be justified not simply on the 
basis of an abstract capacity to endanger the neutrality of the employer, but only 
on the basis of a sufficiently specific risk, in particular of a specifically threatened 
economic disadvantage for the employer or an affected third party? 
WABE 
 
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II. The proceedings are stayed. 
[...] [Signatures] 
[Or. 4] 
Grounds 
In the present case, the interpretation of Articles 2 and 4 of Council Directive 
2000/78/EC of 27 November 2000 and of Article 16 of the Charter of 
Fundamental Rights is relevant to the decision and disputed between the parties, 
which is why the proceedings are referred to the Court of Justice of the European 
Union for a preliminary ruling. The proceedings [...] are analogously stayed 
pending the decision of the Court of Justice of the European Union on this request 
for a preliminary ruling. 
A. Subject matter of the main proceedings 
The parties are in dispute regarding a warning. 
The defendant runs a large number of child day care centres with more than 600 
employees taking care of around 3 500 children. The defendant is non-partisan 
and non-denominational. 
Its website states the following on the subject of diversity and trust: 
‘Gender, background, culture, religion or special needs — we firmly believe 
that diversity enriches our lives. By being open and curious, we learn to 
understand one another and to respect differences. Since we welcome all 
children and parents, this creates an atmosphere in which everyone can feel 
safe, feel a sense of belonging and can develop trust. This is the basis for a 
healthy personal development and peaceful social interaction.’ 
In its daily work, the defendant follows the Hamburg recommendation for the 
education of children in day care facilities, published by the Labour, Social 
Affairs, Family and Integration Authority in March 2012 […] 
In extract it reads as follows: 
‘All child day care facilities have the task of addressing and explaining 
fundamental ethical questions as well as religious and other beliefs as part 
of the living environment. Child day care centres therefore provide space for 
children to consider the essential questions of joy and sorrow, health and 
sickness, justice and injustice, guilt and failure, peace and conflict and with 
[Or. 5] the question of God. They support the children in expressing feelings 
and beliefs on these questions. The possibility of looking at these questions 
in a curious and inquisitive manner leads to the consideration of subjects 
and traditions of the religious and cultural orientations represented in the 
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group of children. This develops appreciation and respect for other 
religions, cultures and beliefs. This consideration increases the child’s self-
understanding and experience of a functioning society. The children also 
experience and actively contribute to religiously rooted festivals in the 
course of the year. By encountering other religions, children experience 
different forms of reflection, faith and spirituality.’ 
The applicant fully agrees with these Hamburg education recommendations. 
The applicant is a special needs carer and has been employed by the defendant on 
the basis of the contract of employment of 14 April 2014 […] since 1 July 2014, 
most recently with an average gross monthly income of EUR 2 900. 
In the period from 15 October 2016 to 30 May 2018, the applicant was on parental 
leave. The applicant is of Muslim faith. At the start of 2016, she decided to wear a 
headscarf. During the applicant’s parental leave, the ‘instructions on observing the 
requirement of neutrality’ were issued in the defendant’s company on 12 March 
2018 [...] and made known to the applicant at the end of May 2018. 
In extract these read as follows: 
[The defendant] 
‘is non-denominational and expressly welcomes religious and cultural 
diversity. In order to guarantee the children’s individual and free 
development with regard to religion, belief and politics, [the defendant’s] 
employees are required to observe strictly the requirement of neutrality that 
applies in respect of parents, children and other third parties. [The 
defendant] pursues a policy of political, ideological and religious neutrality 
in respect thereof. In this connection, the following regulations serve as 
principles for specifically observing the requirement of neutrality in the 
workplace. 
• Employees shall not make any political, ideological or religious 
statements to parents, children and third parties in the workplace. [Or. 
6] 
• Employees shall not wear any signs of their political, ideological or 
religious beliefs that are visible to parents, children and third parties 
in the workplace. 
• Employees shall not give expression to any resultant customs to 
parents, children and third parties in the workplace. 
• […]’ 
The applicant learned of these instructions on 31 May 2018. 
WABE 
 
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The ‘information sheet on the requirement of neutrality’ answers the question of 
whether the Christian cross, Muslim headscarf or Jewish kippah may be worn as 
follows: 
‘No, as the children should not be influenced by the teachers with regard to 
a religion, this is not permitted. The deliberate choice of religiously or 
ideologically determined clothing is contrary to the requirement of 
neutrality.’ 
On the day of her return to work following parental leave on 1 June 2018, the 
applicant was asked to remove her headscarf, which entirely covered her hair. The 
applicant refused to do so. She was thereupon temporarily released from work by 
the head of the child day care centre. 
On 4 June 2018, the applicant appeared for work again wearing a headscarf. She 
was given a warning with the same date [...], with which she was warned for 
wearing the headscarf on 1 June 2018 and asked, with regard to the requirement of 
neutrality, to perform her work without a headscarf in future. As the applicant also 
refused to remove her headscarf on 4 June, she was once again sent home and 
temporarily released. She received a further warning on the same day [...]. 
The defendant has subsequently also effected the removal of a necklace bearing a 
cross by a female employee. With the exception of specialist pedagogical 
consulting, the provisions of the requirement of neutrality do not apply to the 
defendant’s employees in the company headquarters, as these do not have 
customer contact. [Or. 7] 
The applicant is of the opinion that, despite the general ban on visible signs of 
political, ideological or religious belief, the ban targeted the wearing of the 
Islamic headscarf. The headscarf ban furthermore exclusively affected women and 
was therefore also to be examined from the perspective of discrimination on 
grounds of gender. In addition, a headscarf ban affected women with a migration 
background with disproportionate frequency, which meant that discrimination on 
grounds of ethnic origin was also to be considered. According to the 
Bundesverfassungsgericht (Federal Constitutional Court), prohibiting the wearing 
of the headscarf whilst working in a child day care centre constitutes serious 
interference with the affected party’s fundamental right to freedom of faith and 
belief. Even in the public service, corresponding bans could relate only to a 
proven, specific risk. Under the Grundgesetz (Basic Law), a general ban on the 
visible wearing of religious, ideological or political symbols / clothing is not 
admissible. 
It was unclear how the development of the children cared for with regard to 
appreciation and respect was supposed to take place according to the Hamburg 
education recommendations if the defendant restricted the freedom of religion of 
the teachers. 
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The decision of the Court of Justice of the European Union in Achbita (judgment 
of 14 March 2017, Case 157/15, EU:C:2017:203) also did not preclude her claim 
for removal of the warning. The correct interpretation by the Court of Justice 
merely set minimum standards under EU law. The protection against 
discrimination achieved in Germany through the case-law of the Federal 
Constitutional Court regarding Article 4(1) of the Basic Law (GG) and by 
Paragraph 8 of the General Act on Equal Treatment (AGG) should not be reduced. 
Pursuant to Section 8 AGG, a difference in treatment on the ground of religion 
was admissible only if, in the nature of the activities concerned or of the context in 
which they are carried out, this constituted a genuine and determining 
occupational requirement, provided that the objective was legitimate and the 
requirement was proportionate. 
The applicant requests that the defendant be ordered 
to remove from the applicant’s personnel file and destroy the warning 
of 4 June 2018 (wearing of headscarf on 1 June 2018) and 
correspondence relating thereto, 
to remove from the applicant’s personnel file and destroy the warning 
of 4 June 2018 (wearing of headscarf on 4 June 2018) and 
correspondence relating thereto. [Or. 8] 
The defendant requests that 
the action be dismissed. 
The defendant is of the opinion that the warnings were rightly issued. The valid 
instruction on the requirement of neutrality which was breached by the applicant 
was legitimate pursuant to the first sentence of Paragraph 106 of the Trade 
Regulation Act (GewO) in conjunction with Paragraph 7(1), (2) and (3) 
AGG. These provisions of national law were to be interpreted in accordance with 
EU law. According to the judgment in Achbita of the Court of Justice, a private 
employer could implement a policy of neutrality as long as he pursued it 
consistently and systematically and restricted it to those employees who were in 
contact with customers. Indirect discrimination was not taken to occur if the 
relevant provision was objectively justified by a legitimate aim and the means of 
achieving that aim were appropriate and necessary. The Court of Justice 
considered the employer’s desire to pursue, in relations with both public and 
private sector customers, a policy of political, philosophical and religious 
neutrality to be fundamentally legitimate. The adopted requirement of neutrality 
was also appropriate and necessary, as it included only those employees who were 
in direct contact with parents and children. 
The defendant was not able to transfer the applicant to an area without customer 
contact, as the applicant was employed as a special needs carer, which meant that 
working without contact with children and parents would not constitute an area of 
duty and responsibility corresponding to her skills and qualifications. 
WABE 
 
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This case was comparable with that in Achbita, as the parents of the facility 
attached particular importance to the political, ideological and religious neutrality 
of the child day care centre. Without the requirement of neutrality, parents would 
remove their children from the care of the defendant; younger siblings would 
usually no longer be placed in the care of the defendant. The number of 
registrations would decline. The Court of Justice finally carried out the weighting 
of the fundamental rights according to the Charter of Fundamental Rights in the 
case of an employer’s requirement of neutrality. As Paragraph 3(2) AGG served 
to implement EU law, a different weighting of freedom of religion — as carried 
out by the Federal Constitutional Court under Article 4(1) GG — could not be 
carried out by the German courts without contravening the primacy of EU law and 
the principle of interpretation in accordance with EU law. [Or. 9] 
In the event that, contrary to expectation, with the German case-law, the Court 
were to demand a specific risk or specific economic disadvantages for the 
restriction of freedom of religion, these also existed. The applicant’s entries on her 
private Facebook profile, on which she shared various videos on the subject, 
revealed that she wanted specifically and deliberately to influence third parties. 
The wearing of the headscarf as a religious symbol in connection with the 
Facebook content therefore had a targeted, influencing effect. The targeted, 
influencing effect was in particular to be assessed in view of the particular 
situation of the children in the child day care centre, who were at an age where 
they were particularly receptive to influences of any kind and at a stage in which 
their personality was significantly shaped. These considerations meant that 
specific operational disruption or economic loss was to be feared. The defendant 
had to reckon with the applicant influencing the children entrusted thereto in a 
certain respect, in that she conveyed the wearing of a headscarf as something 
positive and shared the ideology of Pierre Vogel, a preacher mentioned on her 
Facebook profile, who has been the focus of investigation by the Federal Office 
for the Protection of the Constitution on several occasions. 
B. National legal framework 
1. German constitution 
Article 4(1) of the Basic Law for the Federal Republic of Germany (GG) reads 
as follows: 
‘Freedom of faith and of conscience, and freedom to profess a religious or 
philosophical creed, shall be inviolable.’ 
Article 6(2) GG reads as follows: 
‘The care and upbringing of children is the natural right of parents and a 
duty primarily incumbent upon them. The state shall watch over them in the 
performance of this duty.’ 
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Article 7 GG reads as follows: 
‘(1) The entire school system shall be under the supervision of the state. 
[Or. 10] 
(2) Parents and guardians shall have the right to decide whether children 
shall receive religious instruction. 
(3) Religious instruction shall form part of the regular curriculum in state 
schools, with the exception of non-denominational schools. Without 
prejudice to the state’s right of supervision, religious instruction shall be 
given in accordance with the tenets of the religious community concerned. 
Teachers may not be obliged against their will to give religious instruction.’ 
For interference with the fundamental right from Article 4(1) GG (freedom of 
religion), be this in the form of direct or indirect discrimination, the Federal 
Constitutional Court (BVerfG) demands in established case-law that the 
restriction must result from the constitution, as Article 4(1) GG — in contrast to 
other fundamental rights of the German constitution — does not contain a legal 
reservation. Such limitations inherent to the constitution included the fundamental 
rights of third parties and community values with constitutional status [...]. The 
parents’ right of education (Article 6(2) GG) and the negative freedom of faith of 
schoolchildren (Article 4(1) GG) specifically come into consideration here. The 
requirement of neutrality pursued by the state could not refer to such a community 
value with constitutional status for the field of child day care, as the state 
educational mandate (Article 7(1) GG) related only to schools. 
In relation to a ban on religious expression by teachers and child day care centres, 
the BVerfG has ruled that the external religious expression would have to result in 
a sufficiently specific risk or disruption to the peace in the child day care centre or 
the neutrality of the public institution [...]. In accordance therewith, a general 
requirement of neutrality without reference to the tasks to be performed is not 
capable of justifying interference with Article 4(1) GG. 
Pursuant to Paragraph 31 of the Federal Constitutional Court Act (BVerfGG), the 
decisions of the BVerfG are binding upon the constitutional bodies of the Federal 
Government and the states and all courts and authorities. The referring court is 
therefore bound by this interpretation of the limits of freedom of religion pursuant 
to Article 4(1) by the BVerfG. [Or. 11] 
2. Ordinary legislation 
(a) General Act on Equal Treatment (AGG) 
Directive 2000/78/EC has been implemented by the AGG. In extract this reads as 
follows: 
WABE 
 
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Paragraph 1 Purpose 
‘The purpose of this Act is to prevent or to stop discrimination on the 
grounds of race or ethnic origin, gender, religion or belief, disability, age or 
sexual orientation.’ 
Paragraph 2 Scope 
‘(1) For the purposes of this Act, any discrimination within the meaning of 
Paragraph 1 shall be inadmissible in relation to: 
1. conditions for access to dependent employment and self-employment, 
including selection criteria and recruitment conditions, whatever the branch 
of activity and at all levels of professional hierarchy, including promotion; 
2. employment conditions and working conditions, including pay and 
reasons for dismissal, in particular in contracts between individuals, 
collective bargaining agreements and measures to implement and terminate 
an employment relationship, as well as for promotion; 
(…)’ 
Paragraph 3 Definitions 
‘(1) Direct discrimination shall be taken to occur where one person is 
treated less favourably than another is, has been or would be treated in a 
comparable situation on any of the grounds referred to under Paragraph 1. 
Direct discrimination on grounds of gender shall also be taken to occur in 
relation to Paragraph 2(1) Nos 1 to 4 in the event of the less favourable 
treatment of a woman on account of pregnancy or maternity. [Or. 12] 
(2) Indirect discrimination shall be taken to occur where an apparently 
neutral provision, criterion or practice would put persons at a particular 
disadvantage compared with other persons on any of the grounds referred to 
under Paragraph 1, unless that provision, criterion or practice is objectively 
justified by a legitimate aim and the means of achieving that aim are 
appropriate and necessary.’ 
Paragraph 7 Prohibition of discrimination 
‘(1) Employees shall not be permitted to suffer discrimination on any of the 
grounds referred to under Paragraph 1; this shall also apply where the 
person committing the act of discrimination assumes only the existence of 
any of the grounds referred to under Section 1. 
(2) Any provisions of an agreement which violate the prohibition of 
discrimination under Subparagraph (1) shall be ineffective. 
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(3) Any discrimination within the meaning of Subparagraph (1) by an 
employer or employee shall be deemed a violation of their contractual 
obligations.’ 
Paragraph 8 Permissible difference in treatment on grounds of occupational 
requirements 
‘(1) A difference in treatment on any of the grounds referred to under 
Paragraph 1 shall not constitute discrimination where, by reason of the 
nature of the particular occupational activities or of the context in which 
they are carried out, such grounds constitute a genuine and determining 
occupational requirement, provided that the objective is legitimate and the 
requirement is proportionate.’ 
Paragraph 15 Compensation and damages 
‘(1) In the event of a violation of the prohibition of discrimination, the 
employer shall be under the obligation to compensate the damage arising 
therefrom. This shall not apply where the employer is not responsible for the 
breach of duty. 
(2) Where the damage arising does not constitute economic loss, the 
employee may demand appropriate compensation in money. This 
compensation shall not exceed three monthly salaries in the event of non-
recruitment, if the employee would not have been recruited if the selection 
had been made without unequal treatment. [Or. 13] 
(3) The employer shall only be under the obligation to pay compensation 
where collective bargaining agreements have been entered into when he or 
she acted with intent or with gross negligence.’ 
(b) Trade Regulation Act 
Paragraph 106 Right of instruction of the employer 
‘The employer may, at its discretion, further specify the content, place and 
time of the work, as far as these working conditions are not determined by 
the employment contract, provisions of a company agreement, an applicable 
collective agreement or statutory provisions. This also applies to the order 
and behaviour of employees in the workplace. In the exercise of discretion, 
the employer must also take into account disabilities of the employee.’ 
C. EU legal framework 
The questions referred concern the interpretation of Article 2 and Article 4 of 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation in conjunction with 
Article 16 of the Charter of Fundamental Rights. 
WABE 
 
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D. Relevance of the questions referred to the decision in the main proceedings 
First question referred: 
Does a unilateral instruction from the employer prohibiting the wearing of 
any visible sign of political, ideological or religious beliefs constitute direct 
discrimination on the grounds of religion, within the meaning of Article 2(1) 
and Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 
establishing a general framework for equal treatment in employment and 
occupation, against employees who, due to religious covering requirements, 
follow certain clothing rules? [Or. 14] 
(1) In the judgment of 14 March 2017 (Achbita, C-157/15, EU:2017:203), the 
Court of Justice found that an internal rule such as that at issue in the main 
proceedings did not introduce a difference of treatment that was directly based on 
religion or belief, for the purposes of Article 2(2)(a) of Directive 2000/78, as the 
rule was applied equally to all employees. However, this Chamber is of the 
opinion that direct discrimination shall always be taken to occur when a rule 
directly relates to a certain characteristic protected by Article 1 of Directive 
2000/78. The text of Article 2(2) 2000/78/EC reads as follows: 
‘Direct discrimination shall be taken to occur where one person is treated 
less favourably than another is, has been or would be treated in a 
comparable situation, on any of the grounds referred to in Article 1’. 
According to the definition of Paragraph 3(1) AGG too, direct discrimination was 
taken to occur in the present case due to the connection between the 
discriminatory treatment and the characteristic of religion. 
(2) In contrast, indirect discrimination shall be taken to occur where an 
apparently neutral characteristic (such as part-time employment) empirically 
concerns more people in a group (for example: women). This is not the case in the 
present case: the regulation explicitly relates to the characteristic of religion, in 
that it prohibits religious features. 
The applicant in the main proceedings would be treated differently (not receive a 
warning) if she were not religious and were not to demonstrate this through 
religious expression. She would also be treated differently if she were to have 
worn a headscarf for reasons of fashion rather than religion. The employer’s 
general requirement of neutrality explicitly connects a characteristic (religion) 
referred to in Article 1 of Directive 2000/78/EC to a negative consequence (ban 
on wearing religious features). Voices in the literature therefore consider with 
convincing reasoning — and contrary to the Court of Justice’s comments in 
Achbita — that regulations such as that at issue here constitute direct 
discrimination on grounds of religious expression [...] [Or. 15] [...]. 
(3) In the opinion of this Chamber, the difference between indirect and direct 
discrimination can be conditioned not by whether other people with other 
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(protected or unprotected) characteristics are also treated similarly poorly, but 
exclusively according to whether or not less favourable treatment explicitly relates 
to a protected characteristic [...]. According thereto, the individual consideration 
of whether the person specifically affected is disadvantaged by the treatment 
because of his or her recognisable religion, in that a direct connection is made to 
the protected characteristic of religion, would be decisive for direct discrimination 
pursuant to Article 2(2)(a) of Directive 2000/78/EC. Direct discrimination on 
grounds of religion does not become indirect discrimination by non-religious 
employees also being prohibited from performing certain practices. Whether 
members of a certain category are exclusively disadvantaged is, in contrast, 
irrelevant to the question of whether direct discrimination is taken to occur [...], 
since fundamental freedoms apply to individuals, not to collectives. The wording 
of the directive itself also provides no connecting factor for such a delimitation 
[...]. A connection to religion cannot be made any more directly than by 
designating a protected characteristic in the prohibitory regulation itself. 
In other words: direct discrimination cannot become indirect discrimination by a 
further group of employees also being prohibited from doing something. That 
would lead to general hostility to all religions being perceived as neutrality and 
not as direct discrimination. [Or. 16] 
(4) On account of the connection between the unfavourable treatment of the 
applicant (in this case: the issuing of a warning) and the characteristic of religion, 
this Chamber is of the opinion that there is direct discrimination in the present 
case. As direct discrimination within the meaning of Article 2(2)[a] of Directive 
2000/78/EC pursuant to Article 4(1) of the directive does not constitute 
discrimination only where, by reason of the nature of the particular occupational 
activities concerned or of the context in which they are carried out, the 
characteristic concerned constitutes a genuine and determining occupational 
requirement, provided that the objective is legitimate and the requirement is 
proportionate, the action would have to be allowed. This is because no 
determining occupational requirement not to wear a headscarf at work results 
from the applicant’s activity as a teacher. The Hamburg education 
recommendations on the contrary reveal the express wish that children learn about 
cultural and religious diversity in their social environment. 
The defendant in the main proceedings explicitly refers to the fact that its conduct 
is covered by Directive 2000/78/EC. This Chamber therefore sees itself as 
prevented from upholding the applicant’s action as a result of the grounds for the 
judgment of the Court of Justice of 14 March 2017 (Achbita, C-157/15, 
EU:2017:203), even though these require interpretation. 
Should the Court of Justice answer the first question in the negative, the second 
question referred is important for resolving the dispute: 
Does a unilateral instruction from the employer prohibiting the wearing of 
any visible sign of political, ideological or religious beliefs constitute indirect 
WABE 
 
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discrimination on the grounds of religion and/or gender, within the meaning 
of Article 2(1) and Article 2(2)(b) of Directive 2000/78/EC, against a female 
employee who, due to her Muslim faith, wears a headscarf? 
In particular: 
(a) Can indirect discrimination on the grounds of religion and/or gender be 
justified under Directive 2000/78/EC with the employer’s subjective wish to 
pursue a policy of political, ideological and religious neutrality even where 
the employer thereby seeks to meet the subjective wishes of his customers? 
(b) Do Directive 2000/78/EC and/or the fundamental right of freedom to 
conduct a business under Article 16 of the Charter of Fundamental Rights of 
the European Union in view of Article 8(1) of Directive 2000/78/EC preclude 
a national regulation [Or. 17] according to which, in order to protect the 
fundamental right of freedom of religion, a ban on religious clothing may be 
justified not simply on the basis of an abstract capacity to endanger the 
neutrality of the employer, but only on the basis of a sufficiently specific risk, 
in particular of a specifically threatened economic disadvantage for the 
employer or an affected third party? 
(1) The ban on displaying religious symbols actually affects some religions 
more than others and the sexes in a different way: religious Jewish women wear a 
wig, which is usually not recognisable as such. They are therefore allowed to fulfil 
the religious covering requirement. In contrast, Muslim women — like Jewish 
men — are prohibited from fulfilling that requirement, as their religious 
characteristic — the wearing of the headscarf or kippah — is visible. Christians 
can conceal the wearing of a cross around their neck beneath a further item of 
clothing. It is therefore possible for them to fulfil this religious requirement even 
when applying a rule of neutrality. Statistically, the defendant’s regulation almost 
exclusively affects Muslim women, as the majority of teachers in child day care 
centres are female and the number of religious Jews among the male teachers is 
extremely small. 
In the judgment of 14 March 2017 (Achbita, C-157/15, EU:2017:203), the Court 
of Justice left open the question of whether the requirement of neutrality in the 
workplace constitutes indirect discrimination on the grounds of religion. 
The Court also failed to discuss whether a requirement of neutrality in the 
workplace is to be regarded as indirect discrimination of women, as this ban 
concerns (Muslim) women in the vast majority of cases. 
(2) Pursuant to Article 2(2)[b][i], indirect discrimination shall be taken to occur 
unless that provision, criterion or practice is objectively justified by a legitimate 
aim and the means of achieving that aim are appropriate and necessary. 
In the judgment of 14 March 2017, the Court of Justice stated the following: 
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‘An employer’s wish to project an image of neutrality towards customers 
relates to the freedom to conduct a business that is recognised in Article 16 
of the Charter and is, in principle, legitimate, notably where the employer 
involves in [Or. 18] its pursuit of that aim only those workers who are 
required to come into contact with the employer’s customers.’ 
However, for there to be an interference with the fundamental right deriving from 
Article 4(1) GG (freedom of religion), the Federal Constitutional Court requires, 
in addition to the existence of a legitimate aim, that the external religious 
expression must result in a sufficiently specific risk for legally protected interests 
with constitutional status [...]. The Regional Labour Court of Nuremberg 
[OMISSIS] understands the case-law of the Court of Justice in the Achbita and 
Bougnaoui judgments (judgment of 14 March 2017, ref. C-188/15, 
ECLI:EU:C:2017:204) to be in line with the view of the Federal Constitutional 
Court such that the employer’s wish to project an image of neutrality towards 
customers was, in principle, legitimate only where the lack of this neutrality led to 
economic disadvantages. Like the defendant in the main proceedings, the referring 
Chamber is unable to recognise this restriction in the grounds for the decision in 
the judgment of the Court of Justice of 14 March 2017 (Achbita). 
However, with the Federal Constitutional Court and the Regional Labour Court of 
Nuremberg, this Chamber is of the opinion that, with regard to the weight of the 
fundamental right to freedom of religion and with regard to the requirement of 
proportionality laid down in Article 52(1) of the Charter of Fundamental Rights, 
the employer’s fundamental right arising from Article 16 of the Charter cannot be 
given priority over freedom of religion simply where the employer expresses the 
wish to appear neutral to customers without the lack of neutrality causing the 
employer a disadvantage. 
This Chamber feels this interpretation to be confirmed by the judgment of the 
Court of Justice in Bougnaoui (judgment of 14 March 2017, C-188/15, 
EU:C:2017:204), in which the Court of Justice did not recognise the employer’s 
wish to meet a customer’s wishes to no longer have that employer’s services 
provided by a female employee wearing an Islamic headscarf as a genuine and 
determining occupational requirement within the meaning of that provision. This 
Chamber is unable to see why it should then, however, be admissible to prohibit 
the same employee from wearing the headscarf when the employer adopts this 
wish of the customer and prohibits the wearing of the headscarf as a general 
company philosophy (neutrality), as this Chamber understands the Court of 
Justice in Achbita. [Or. 19] 
(3) It is true that only minimum requirements are laid down in Directive 
2000/78/EC in recital No 28 and Article 8 thereof. This gives the Member States 
the option of introducing or maintaining more favourable provisions. The 
implementation of the directive should not serve to justify any regression in 
relation to the situation which already prevails in each Member State. There are 
therefore voices in German legal literature who believe that, through the Achbita 
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and Bougnaoui judgments, the higher level of protection guaranteed in Germany 
by Article 4(1) and (2) GG, according to which proof of operational disadvantages 
in the individual case is required for prohibiting the displaying of religious 
symbols in the workplace, was not adversely affected by those judgments [...]. 
However, this Chamber is prevented from upholding the action by the 
interpretation of Article 16 of the Charter of Fundamental Rights by the Court of 
Justice, with which the latter finds the employer’s wish for religious neutrality of 
his employees to be sufficient in itself as objective justification for indirect 
discrimination (as long as this is appropriate and necessary). The defendant in the 
main proceedings explicitly refers to its right arising from Article 16 of the 
Charter of Fundamental Rights as interpreted by the Court of Justice in Achbita, 
which means that this question is relevant to the decision in the main dispute. In 
the opinion of this Chamber, the employer has not demonstrated with sufficient 
substantiation economic losses or a specific danger to legally protected interests of 
third parties, which could also justify a different decision in accordance with the 
conditions of Article 4 GG. 
[...] [Remarks on national procedural law] 
[...] [Signature]