The Conseil d’État in France has recently overturned a ban on “burkinis”: Is French secularism now under attack?
Dee Masters, Cloisters
This article argues that the recent decision of the Conseil d’État concerning the ban on “burkinis” will have very little impact on the interplay between secularism, religious freedom and the principle of non-discrimination as it is essentially a decision concerning the authority of the mayor of Villeneuve-Loubet. However, there are two judgments from the Court of Justice of the European Union (CJEU) on the horizon which could lead to an erosion of the French principle of secularism in favour of a concept of state neutrality that promotes pluralism.
“Le principe de laïcité”
Secularism, which dictates that there should be an absence of religious involvement in government affairs, especially the prohibition of religious influence in the determination of state policy (“le principe de laïcité”), is deeply entrenched in French society. Indeed, the separation of state and religion is enshrined in the French constitution and it is the bedrock of much of civil society including teaching within schools.
On 26 August 2016, the Conseil d’État, which is the highest court in France for matters relating to local authorities and any other body invested with public authority, ruled that a ban introduced by the mayor of Villeneuve-Loubet on “burkinis” at beaches was unlawful. Part of the mayor’s justification for the ban had been that the “burkini” infringed the principle of secularism. However, the decision of the Conseil d’État tells lawyers very little about the interplay between “le principe de laïcité” and the principles of non-discrimination / religious freedom. This is because the Conseil d’État concluded that the ban was unlawful as:
- the mayor is only entitled to police activities on beaches at Villeneuve-Loubet in so far as there is a risk to public order, safety or decency; and
- there was no evidence that wearing a “burkini” posed any risk in these areas.
There is a recognition that the ban impacts negatively on women who choose to wear the “burkini” but there is no meaningful analysis of their legal rights and the extent to which they can be reconciled with the principle of secularism.
Accordingly, while the decision of the Conseil d’État has stoked the ongoing political debate in France concerning Islam, it does not contribute to the legal discussion concerning the legitimacy of the principle of secularism.
Equal Treatment Directive
In contrast, the Court of Justice of the European Union (CJEU) is currently grappling with the extent to which the French principle of secularism is compatible with the Equal Treatment Directive (2000/78/EC), which states that there should be “no direct or indirect discrimination whatsoever” as regards employment and occupation, in two separate cases.
The first case is C-157/15 Samira Achbita v G4S Secure Solutions NV. The CJEU will be adjudicating upon whether a private employer can ban any visible signs of religious belief at work. In particular whether a Muslim woman can be banned from wearing her headscarf because of the security company’s desire to present an image of “neutrality”. The case arises from litigation in Belgium but the French government argued in favour of the employer’s policy.
The judgment of the CJEU is still awaited but Advocate General Kokott handed down her opinion on 31 May 2016 where she concluded that the ban amounted to prima facie indirect religious discrimination but that the employer was not acting unlawfully because the circumstances of the case fell within the genuine occupational requirement exception to the principle of non-discrimination. In particular:
- the employer was a security business,
- there was accordingly a genuine need to enforce a policy of “neutrality”;
- it was proportionate to compel a Muslim receptionist to remove her headscarf in pursuit of that aim, notwithstanding the negative repercussions for her employment; and
- it was relevant that wearing a headscarf might impact on the rights of colleagues and customers.
At no point in her Opinion does Advocate General Kokott define what she means by “neutrality” but it seems that she has conflated it with the principle of secularism i.e. an absence of religious symbolism as opposed to the passive tolerance of pluralism which is the more usual meaning of “neutrality”. Having conflated “neutrality” with secularism, she then endorsed the importance of secularism, relying on submissions from the French government and stating that: “… it is essential not least to avoid the impression that external individuals might associate with G45 itself or with one of its customers, or even attribute to the latter, the political, philosophical or religious beliefs publicly expressed by an employee through her dress”.
Whilst, Advocate General Kokott’s Opinion is a wholesale endorsement of the French vision of secularism, it should not be assumed that the CJEU will adopt this analysis in its judgment especially as a different approach has been set out by Advocate General Sharpston in the second case currently under consideration.
In C-188/15 Asma Bougnaoui v Micropole SA, the CJEU will be determining whether the dismissal of a Muslim woman in France for refusing to remove her headscarf whilst at work for her private employer amounted to discrimination contrary to the Equal Treatment Directive. Again, the employer sought to justify its position on the basis that it required “neutrality” at work. Since in practice this equated to an absence of religious apparel, it is better seen as a justification borne from a commitment to secularism.
Advocate General Sharpston handed down her Opinion on 13 July 2016. She concluded that the dismissal of the employee because she refused to remove her headscarf was prima facie direct religious discrimination since it was less favourable treatment caused by the way in which she had chosen to manifest her religion and it was irrelevant that different religious manifestations would have been treated in the same way. She went on to conclude that the genuine occupational requirement exception did not apply since:
- the employer was not pursuing a legitimate aim as the alleged commercial interests of the company could not be used to limit Ms Bougnaoui’s right to employment free from discrimination; and
- there was no evidence to suggest that there was any other (legitimate) basis upon which an infringement to her rights could be justified e.g. concerns about health and safety.
Whilst Advocate General Sharpston declined to comment upon whether “le principe de laïcité” was relevant to the Equal Treatment Directive, it is clear from her conclusions that she placed no weight on arguments advanced by the French government concerning neutrality or secularism when assessing whether there was a legitimate “defence” to the direct religious discrimination she had identified.
Further, her Opinion is peppered with commentary concerning the value of pluralism, tolerance and the importance personal autonomy. This is consistent with the approach of the European Court of Human Rights (ECHR) in S.A.S v France (1 July 2014, 43835/11) where state neutrality, as opposed to secularism was endorsed. Indeed, S.A.S v France was cited with approval by Advocate General Sharpston in her Opinion.
S.A.S v France
In April 2011, the French government introduced a ban on people concealing their face in public on the basis that “… wearing the full veil is the sectarian manifestation of a rejection of the values of the Republic”.
The ban was challenged before the ECHR in S.A.S v France by a Muslim woman living in France who wished to wear a full face veil in public. The ECHR concluded that the ban was lawful on the basis that the French government was seeking to ensure public safety by preventing people from concealing their identity in public. However, it went on to reject a separate argument that the ban was justified on the basis that it promoted gender equality. In so doing, it addressed the concept of neutrality stating that state neutrality required governments to protect the legitimate expression of religious freedom and promote tolerance rather than seek to eliminate pluralism.
This vision of state neutrality is completely different to “le principe de laïcité” which is championed by the French authorities and endorsed by Advocate General Kokott in her Opinion in C-157/15 Achbita. Its focus is on protecting the manifestation of religion in public in so far as possible as opposed to forcibly removing it.
Whilst the media has been dominated by the consideration of the “burkini” ban in Villeneuve-Loubet by the Conseil d’État, the real story for discrimination lawyers is in Luxembourg since the CJEU is expected to shortly hand down its judgments in C-157/15 Achbita and C-188/15 Bougnaoui. The significance of these decisions for the French notion of “le principe de laïcité” cannot be underestimated as the court will effectively be forced to choose between competing and incompatible visions of society – one which seeks to limit the manifestation of religious belief pursuant to the French model of secularism or one which protects pluralism pursuant to the notion of state neutrality endorsed by the EHRC in of S.A.S v France. The latter is almost certainly incompatible with the “burkini” ban on seaside resorts in France.
31 August 2016
 A copy of the judgment is available at http://www.conseil-etat.fr/Decisions-Avis-Publications/Decisions/Selection-des-decisions-faisant-l-objet-d-une-communication-particuliere/CE-ordonnance-du-26-aout-2016-Ligue-des-droits-de-l-homme-et-autres-association-de-defense-des-droits-de-l-homme-collectif-contre-l-islamophobie-en-France.
 A copy of the Opinion appears at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62015CC0157.
 In her view it was not direct discrimination because people from different religions or with certain political beliefs would have been treated in the same way.
 It is not clearly specified how or why the rights of colleagues and customers might be infringed.
 A copy of the Opinion is available at http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62015CC0188&qid=1472560642933&from=EN.
 See the “Explanatory Memorandum” which accompanied the bill which later became Law no 2010-1192 of 11 October 2010 under the heading “prohibiting the concealment of one’s face in public places”.
 Please note that the judgments of the CJEU will not end the debate completely. If the CJEU rejects the arguments of the French government, the French authorities are bound to argue that the CJEU’s judgments are limited to the private sphere and “le principe de laïcité” in the public realm is left entirely intact.