🍻 Selber Bier Brauen

On Monday, the European Court of Human Rights (ECtHR) held in Danileț v. Romania that judges cannot be disciplined for publicly defending the constitutional order or commenting on the functioning of justice, provided they do not cross the lines of impartiality, propriety, or incitement. Coinciding with the early December 2025 testimonies by judges and journalistic investigations exposing corruption and sustained pressure on the Romanian judiciary, the Grand Chamber’s judgment could not have arrived at a more timely moment. Danileț extends beyond the vindication of one judge’s freedom of speech rights: it is an important moment for Romania’s judiciary and a reminder that courts must be able to speak – and be heard – when democracy and the rule of law are under threat.

Case background and procedural trajectory

The case centers on two Facebook posts published in January 2019 by Judge Vasilică-Cristi Danileț, then a member of the Cluj County Court and nationally known for his views on democracy, rule of law, and justice reform. One post concerned a public controversy over the President’s extension of the Army Chief of Staff’s mandate; the other related to a press interview with a prosecutor, accompanied by a brief colloquial remark in which the applicant praised the prosecutor’s spirit. For these posts, the National Judicial and Legal Service Commission imposed a disciplinary sanction on Danileț: a two-month 5% salary cut, on the grounds that he had impaired the dignity of judicial office and breached a duty of discretion. The High Court of Cassation and Justice upheld the sanction in May 2020.

On 20 February 2024, the ECtHR, sitting as a Chamber, found that Romania had violated Article 10 of the European Convention on Human Rights (ECHR). It concluded that the disciplinary interference with Danileț’s speech on matters of public interest lacked sufficient justification. At the Government’s request, the case was referred to the Grand Chamber in July 2024, signalling that the State considered the issues to be of exceptional importance and disagreed with the Chamber’s reasoning. The Grand Chamber heard the case on 18 December 2024 and, exactly a year later, by ten votes to seven, confirmed that Romania had violated the applicant’s Article 10 rights.

The Grand Chamber’s analysis

The judgment follows a well-established structure for addressing Article 10 claims: interference, legality, legitimate aim, and necessity in a democratic society. The Strasbourg Court accepted that the disciplinary sanction interfered with freedom of expression, noting that Romanian law is accessible and sufficiently precise to regulate judges’ conduct, and recognised the legitimate aim of maintaining the authority and impartiality of the judiciary (paras. 138-141). The crux of the matter, however, lies in necessity: was the sanction imposed addressing a pressing social need, grounded in relevant and sufficient reasons, and proportionate?

The Court emphasised the balancing exercise intrinsic to Article 10(2) when applied to judges and prosecutors: between their ordinary right of judges to freedom of expression on the one hand, and their specific duties and responsibilities of judicial office, notably the duty of discretion meant to protect public confidence in the judicial system (para. 171). In calibrating that balance, the Court drew a sharp distinction between speech implicating ongoing proceedings or compromising impartiality and speech defending constitutional order, the separation of powers, and the functioning of justice. The latter, the Court stressed, are matters of public interest that attract the highest level of protection (para. 191).

The Grand Chamber underscored that, where democracy and the rule of law are under serious threat, judges are entitled to speak out; remarks made in such contexts generally warrant a high level of Article 10 protection (para. 186). That principle directly anchors the Court’s treatment of the first post, which defended constitutional order amid an institutional dispute over the Army Chief of Staff’s extension. The Court found no evidence that the remarks undermined the proper functioning of justice, impaired the dignity of the judiciary, or endangered impartiality (paras. 176, 197).

The second post, linking to an interview about prosecutorial caseloads and reforms, likewise concerned matters of public interest – namely the functioning of the justice system – and thus deserved robust protection. The sanction hinged largely on the judge’s use of the colloquial phrase “blood in his [the prosecutor’s] veins” (Romanian: sânge în instalație), which domestic authorities deemed to exceed propriety. This idiom is best translated as “being courageous enough to do something”; which in this context implies that Danileț praised the prosecutor for speaking up openly against interferences with judicial independence. The Grand Chamber acknowledged that ambiguous language by judges on social media might be problematic and suggested that clearer phrasing would have been preferable. Yet it concluded that the domestic authorities failed to articulate how the phrase “significantly overstepped” the inherent limits of propriety or why it justified disciplinary punishment (para. 183). Crucially, the Court found no defamatory, hateful, or violent content, no call to uprising, and no concrete impact on impartiality or public confidence in the applicant’s publications.

Two additional aspects seem to have affected the Grand Chamber’s reasoning. First, procedural safeguards: neither the Disciplinary Board nor the High Court examined whether the value judgments in the first post had a sufficient factual basis, nor did they explain the gravity of the colloquial phrase or situate the speech in its public interest context (paras. 201-204). This omission raised concerns for the Court about the quality and scope of judicial review at the national level. Second, the chilling effect played an important role. Even a mild sanction, the Court emphasised, can deter judges from engaging in public discourse on constitutional and systemic questions (para. 200). The Court treated this chilling potential as an integral element of its proportionality analysis, especially in an environment where institutional pressure on the judiciary is a pressing concern.

Why this case matters now

The importance of Danileț is two-fold. Doctrinally, it contributes to the Court’s ever-growing Article 10 jurisprudence by clarifying the boundaries of judicial speech in digital public spheres and setting a high bar for disciplining judges who speak on public interest matters. Practically, it intervenes timely in the Romanian context where judicial independence faces systemic pressure. Over the past week, judges’ testimonies and investigative reporting have exposed patterns of intimidation, politicised disciplinary actions, and informal pressure networks that seek to constrain magistrates who resist political encroachment or criticise structural issues. These accounts have captured an unprecedentedly big audience: the Recorder’s documentary, which started the whole debate, accumulated over 4 million views within 5 days on YouTube alone. Thousands of people demonstrated their disagreement with the situation by protesting in the streets, demanding changes to the judicial system and the resignation of those whose names featured in the investigations. The reports suggest not sporadic excesses of superior judges’ competences but a pattern embedded in institutional practice, which many have aptly described as a systemic issue.

Against this backdrop, the Danileț judgment is particularly important. Itself a highly debated verdict (ten votes to seven, three separate opinions), it affirms that judges (and, by implication, prosecutors) can, and sometimes must, speak to defend constitutional architecture and institutional independence. It rejects the decade-long practice of disciplining them for participating in public debate, especially where their speech concerns governance of the justice system, structural reforms, and the separation of powers. By condemning sanctions grounded in unfounded claims of impaired dignity or propriety, the ECtHR shifts the burden of proof to authorities to show concrete harm to impartiality or public trust. Moreover, by highlighting the chilling effect that even modest penalties can produce, the verdict confronts the reality that disciplinary tools can be – and are being – weaponised to silence judges.

The judgment’s timing underscores its significance. Romania’s political landscape remains divided, and debates on judicial reform, prosecutorial powers, and institutional checks and balances have fuelled discussions about reshaping the powers of judges. It is against this background that the Constitutional Court of Romania issued one of its most controversial rulings ever, declaring the results of the first round of the 2024 presidential election null and void. In this light, the Court’s engagement with the amicus submissions by Romanian and international civil society organisations further indicates that this matter is not merely domestic; international support and scrutiny are essential to aligning this part of Romania’s judiciary framework with European standards. As Romania navigates these challenges, Danileț provides a normative guideline: judicial speech on public interest matters is presumptively protected, sanctions require precise and evidence-based justification, and judicial independence is incompatible with disciplinary practices that cause chilling effects.

Systemic pressures, rule of law, and democratic resilience

The public scandal of the last couple of weeks suggests that disciplinary mechanisms and informal levers have been used to constrain judicial voices. This dynamic corrodes the rule of law at several levels. First, it undermines internal judicial deliberation and external transparency, incentivising silence over principled critique. Second, it distorts accountability by punishing speech rather than examining the institutional issues judges legitimately raise: caseload burdens, resource deficiencies, legislative overreach, and executive pressure. Third, it lowers public trust in the system, as citizens start considering the judiciary to be hesitant to defend constitutional norms or inhibited from honest reporting on systemic dysfunction. All of these issues were extensively highlighted in public and academic debates about Romania’s justice system.

The ECtHR’s strengthening of protection for judges’ speech on matters of public interest addresses this corrosion. In democratic terms, the judgment reinforces that courts are more than mute technicians merely applying the law; instead, they are an essential mechanism of accountability for the protection of the rule of law. A judiciary that fears speaking cannot uphold the law when it matters most, and a democracy that silences its judges weakens its capacity to correct its failures. The Romanians should not search for such examples abroad, as the legacy of the Ceaușescu dictatorship with its puppet courts is among the main reasons for the population’s reduced trust in the judiciary; an issue which a member of the European Union with a steadily increasing human rights compliance record should be capable of addressing. Romania’s Prime Minister, Ilie Bolojan, intervened in the public debate amid the scandal, stating that “winning back the trust in [public institutions], including in the judiciary, is a priority” for the Government. President Nicușor Dan called this “a serious problem that has to be resolved”.

In Romania’s case, the systemic nature of pressure, attested by magistrates and documented by journalists, means the solution cannot be piecemeal. What is required are institutional safeguards that align disciplinary practice with Article 10 ECHR standards, transparent procedures preventing political influence, and a cultural change recognising judges’ contributions to public debate as essential rather than unwarranted. Moreover, when addressing the issue of judicial independence, the Government should bear in mind that it is essentially a complex problem that requires coherent solutions. For instance, as the Court’s judgment in Roșca v. the Republic of Moldova confirmed just a week before Danileț, sanctions against the judiciary can also interfere with other rights, such as the right to privacy. Importantly, addressing these issues effectively will require external oversight and dialogue: engagement with the Council of Europe’s execution process for ECtHR judgments, EU rule of law mechanisms, and civil society organisations can enhance Romania’s progress and hold institutions to account.

Now, the ball is in the Government’s court. It is only through a comprehensive reform, informed by the consultations with local and international civil society organisations, that Bolojan and his cabinet can start restoring trust in the national justice system.

Author’s note: Funded by the European Union (ERC, BeyondCompliance, 101166174). Views and opinions expressed are those of the author(s) only and do not necessarily reflect those of the European Union or the European Research Council. Neither the European Union nor the granting authority can be held responsible for them.

The post Judging Independence appeared first on Verfassungsblog.

On Tuesday, the European Parliament approved the Omnibus I – a contested package that will lead to significant changes to the Corporate Sustainability Due Diligence Directive (CSDDD) and, as a consequence, to the German Lieferkettensorgfaltspflichtengesetz (LkSG). Instead of giving a comprehensive overview of all changes, we will focus on those changes to the CSDDD – and the corresponding changes to be made in the LkSG that we believe will have the biggest impact on company practice. We argue that the CSDDD remains strong, especially its obligations on human rights and environmental due diligence (HREDD). However, the Omnibus missed an opportunity to clarify civil liability and, most critically, significantly restricted the personal scope of the CSDDD.

The different scope of obligations

Omnibus I significantly narrows the personal scope (Art. 2 (2)) from companies with an annual turnover of at least 450M euros and (for EU-companies) at least 1,000 employees to an annual turnover of at least 1,5 bn euros and (for EU-companies) at least 5,000 employees. In Germany, some therefore call for raising the LkSG’s scope – currently companies with more than 1,000 employees – to align with the higher thresholds of the CSDDD. While the Directive explicitly permits a reduction of the scope (Art.1(2)), a respective change to the LkSG might violate an international obligation of Germany: the prohibition of regression according to Article 2(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR). The ICESCR prohibits measures that diminish the current enjoyment of protected rights. This includes many of the legal positions protected by the LkSG, which itself implements Germany’s obligation to protect human rights as guaranteed in, inter alia, the ICESCR. The ICESCR specifically requires States to regulate corporate actors, including with respect to their activities abroad, to address human rights violations. Reducing the number of companies subject to due diligence obligations reduces the overall level of protection since fewer companies would implement HREDD, resulting in less prevention and remediation. While the prohibition of regression is not absolute, Germany would have to demonstrate that the benefits of reducing the scope outweigh the resulting loss of protection (see in detail here and here).

Climate obligations after the removal of climate plans

Although the Omnibus removes the specific obligation to establish climate plans, the CSDDD continues to require HREDD in relation to climate change: Annex part I no. 2 prohibits to measurably

“degrade the environment including by harmful emission if the degradation negatively impacts people’s access to food, water, sanitary facilities, health, safety, use of land and possessions, or substantially adversely affects ecosystem services through which an ecosystem contributes directly or indirectly to human wellbeing”.

Greenhouse gas emissions affect all these aspects. It is well established in human rights jurisprudence that climate change causes human rights violations (ICJ, ITLOS, ECtHR). The removal of the climate plan requirement from the CSDDD should therefore not be understood as removing all obligations in relation to climate change. Rather, the Omnibus removes climate plans only as a mandatory, stand-alone measure from CSDDD to be implemented regardless of prioritisation. The legislator justifies this with the “administrative burden” involved with the climate plan, calling for a “more targeted and efficient implementation” (Recital 26 Omnibus-I), while explicitly continuing to call for “targeted and efficient implementation”.

At the same time, the Corporate Sustainability Due Diligence Directive (CSRD), according to the Omnibus I agreement, continues to require companies to report climate action plans (Art. 19a(2)(a)(iii), 29a(2)(a)(iii) Directive 2013/34/EU). Companies should not mistake this for a mere reporting obligation: reporting climate action without actually implementing it may amount to misleading advertisement (Art. 6 Unfair Commercial Practices Directive as modified by the Empowering Consumers Directive) and thus constitute unfair competition under national law.

Business models and downstream impacts

Under the CSDDD, HREDD includes analysing and addressing adverse impacts arising from a company’s own operations. To fulfil the CSDDD’s effectiveness requirement (Art. 3 (o)), this necessarily includes addressing adverse impacts resulting from the business model as the core of every company’s activities. This understanding is confirmed by Recital 41, which clarifies that companies have to analyse “the impact of a business partner’s business model and strategies”. A fortiori, this applies to the business model of the company itself. In practice, this means that companies whose business models are structurally based on the exploitation of the planet or people, such as fast fashion, will be required to establish business model transformation plans. Using business model red flags, such as those developed by Shift, a leading centre of expertise on business and human rights, can serve as a good starting point.

The CSDDD requires companies to change their design and distribution practices (Art. 10(2)(g), 11(3)(e)). Such practices not only impact the upstream value chain but also the intended use. For example, the design of agrochemical products might create impacts because of the form in which they are distributed (incorrect safety information on labels) or used (pesticide use causing diseases). Although the Directive does not explicitly include the use of products in the chain of activities (Art. 3(1)(g) – where HREDD must be implemented), design and distribution practices are part of a company’s own operations, regardless of whether the adverse impacts arise upstream or downstream. The limitation of the chain of activities is intended to protect companies from impacts over which they lack reasonable leverage. This rationale does not apply where companies exercise full control over product design and distribution. When a company designs inherently harmful products, responsibility cannot be shifted elsewhere. This interpretation is also consistent with the UN Guiding Principles on Business and Human Rights (UNGP) which include downstream impacts within the scope of responsibility.

Continuously strong HREDD obligations

The Omnibus I has not significantly weakened the HREDD obligations themselves, though it has clarified how to use information requests. Obligations relating to downstream impacts and business model risks as well as responsible disengagement or suspension remain intact. For the LkSG, this also means that the ill-fated tier-1 approach with exceptions will finally have to be reformed in favour of a real risk-based tier-n approach. The LkSG requires companies to only do due diligence beyond their own operations and direct suppliers if they have a certain degree of knowledge or information regarding impacts or in cases of structural changes (Sec. 9 (3) and 5 (4))(substantiated knowledge). In Germany, this led some companies to misunderstand the law as requiring only due diligence in their own operations and with direct suppliers, even though impacts are more likely and more severe in the deeper supply chain (tier-n).

Unlike the LkSG and the initial Omnibus proposal, the CSDDD now continues to require analysing impacts in the chain of activities up to tier-n, Art. 8(1). The first phase of the risk analysis is scoping. This requires mapping “general areas” of own operations and supply chains onto reasonably available information on risk factors such as geography or sector risk (Art. 8(2)(a)). In practice, companies can map production countries and/or procurement categories against available information on typical risks (such as the CSR Risk Check) to generate risk scores. Attempting to establish the precise location of all supply chains at the scoping stage risks “paralysis by analysis”. Especially at an early stage, mapping procurement categories rather than supplier locations may be the more workable approach.

Prioritisation of risks is what allows companies to focus their capacity on the most relevant risks. Unlike the LkSG (Sec. 3(2) No. 2), leverage is not listed as a deciding factor in for prioritisation in the CSDDD. In the CSDDD, companies have to focus more in-depth analysis measures where adverse impacts are most likely to occur and to be most severe. Many welcome this change, arguing that leverage-based prioritisation would allow companies to evade responsibility for complex impacts. Taken to its extreme, however, this position would mean that companies always have to focus their efforts on the most severe impacts, no matter how marginal they are to their business, potentially leading to significant analytical effort without any realistic prospect of change.

The CSDDD instead now requires “appropriate” risk analyses – meaning measures that are “reasonably available” to the company (Art. 3(1)(o)). While leverage cannot dominate prioritisation, it may still justify excluding peripheral issues with minimal relevance to its business model, for example, categories with only minimal spend. Practical guidance illustrating such prioritisation would significantly enhance the CSDDD’s implementation and impact (for a first suggestion, here, p. 6).

Information requests and supplier protection

For the in-depth assessment phase after scoping (Art. 8(2)(b)), the Omnibus strengthens safeguards against overwhelming suppliers with information requests. In general, the CSDDD gives companies a lot of freedom on how to do this, as long as it is appropriate which includes effective (Art. 3(1)(o)). In practice, on the ground measures such as Human Rights Impact Assessments including rightsholder perspectives are seen as very good measures to identify impacts. Companies that only focus on HQ-based desktop-research will have to improve their practices. One instrument of risk analysis has – rightly – received more attention than others: information requests from suppliers. Too often, companies, especially in Germany, have resorted to superficial, automatised, one-size-fits-all questionnaires implemented by IT-Tool providers that are not interoperable (in detail here, p. 2 f. and here). The CSDDD’s new rules clarify that companies must first collect and analyse information available to them before asking their suppliers for information that “cannot reasonably be obtained by other means” (Art. 8(3)(a)), in a reasonable way (Art. 8(3)(b)) (for good practice examples see here, p. 11).

Review cycles and effectiveness

While the Omnibus extends the formal evaluation cycle for the effectiveness of their measures from annually to every five years (Art. 15), companies should not be misled by this change. They remain obliged to implement effective measures (Art. 3(1)(o)), which means they have to design effective measures ex ante, establishing a hypothesis of effectiveness. Any prudent company would not wait for five years to see if the hypothesis actually holds.

Importantly, this change does not imply that risk analyses (Art. 8) need only be conducted every five years. Systematic and from its wording, Art. 15 cannot simply be applied to the provision on the regular risk analysis. A regular risk analysis that is only conducted every five years would miss important changes and thus fall short of an effective risk analysis (Art.8(1) and (Art. 3(1)(o)). This is why the LkSG (Sec. 5), as well as the Norwegian Transparency Act (Sec. 7) and the Loi de Vigilance (Article L. 225-102-4) require an annual risk analysis (for the former two, this obligation is a precondition to the obligation to annually update measures). Even though the CSDDD does not specify an interval to comply with the effectiveness requirement, companies should not risk waiting more than two years.

Disengagement and suspension

The Omnibus removes the explicit obligation to responsibly disengage from business partners as a last resort in cases of severe potential and actual impacts (Arts. 10(6), 11(7)) and now explicitly only requires responsible suspension. At the same time, it clarifies that continued engagement with business partners shall not expose companies to sanctions or liability if there is a reasonable expectation to believe that the enhanced preventive or corrective action plan will succeed. Conversely, sanctions and liability remain possible where no such expectation exists.

Did the tiger lose a tooth?

One significant implication for the LkSG is the need to set up an independent supervisory authority, as required by Art. 24 CSDDD. The Federal Office for Economic Affairs and Export Control (BAFA), which operates under the legal and technical supervision of a Federal Ministry, does not meet the requirement of legal and functional independence under Art. 24(9) (with reference to the jurisprudence of the ECJ see Streibelt: Art. 24, para. 24.19 et seq., in: Bright, Scheltema: Commentary to the CSDDD, upcoming in 2026).

Civil liability (Art. 29) remains among the most controversial aspects. The Omnibus removes the Member States’ explicit obligation to introduce civil liability from the CSDDD. However, Recital 28 to the Omnibus I maintains that Member States are legally obliged under international and European law to introduce civil liability to provide access to justice under Art. 47 EU Fundamental Rights Charta. Recital 28 explains the deletion of Art. 29 (1) and (7) with the principle of subsidiarity. This indicates that civil liability shall not be removed altogether. Instead, Member States shall be free to choose how to implement such rules.

Nonetheless, abandoning a uniform civil liability regime is misguided. Without overriding mandatory provisions, companies are exposed to liability risks from over 200 jurisdictions (in detail Van Calster). Under international private law, liability will often be governed by the law of the place where the damage occurred (Art. 4 Rome-II-Regulation). Companies will therefore have to monitor liability risks across the jurisdictions in which they operate or source from. While the CSDDD’s sanction mechanism remains strong, the legislator missed an opportunity to provide legal certainty on civil liability.

The post Only Half Thrown Under the Bus appeared first on Verfassungsblog.

The Egenberger case neatly illustrates the tensions underpinning the approach of the Court of Justice to the question of religion in the workplace. Cases in this area bring together two areas of law in which the CJEU has taken markedly different approaches. This has left the Court torn between following its generally assertive approach in relation to discrimination in the workplace and its generally deferential approach in relation to questions around religion’s role in society. The result has been an approach that has accorded more leeway to Member States than in other areas of workplace discrimination, while also using discrimination law to set down parameters that place some limits on the choices that Member States can make in how they regulate religion’s place in their societies. While this caution has been heavily criticised, in the context of the inevitable uncertainty produced by rapid and unprecedented religious change in Europe, it is the most prudent and politically sustainable approach for the time being.

Employment discrimination and freedom of religion

In relation to employment discrimination the Court has a long history of dynamic and bold interpretations of EU law. As far back as the 1970s, in cases like Defrenne, the Luxembourg judges interpreted the principle of equal pay for equal work in an adventurous fashion that revolutionized the approach to the equality of men and women at work as well as pushing forward the process of European integration. This adventurousness has persisted into later decades in cases such as Mangold where the Court showed a notable willingness to push the boundaries of interpretation in order to promote the principle of non-discrimination.

In relation to religion, however, a notably different approach has been evident. In the early decades there were few cases of note and religion usually appeared only as an incidental factor on cases that turned on other elements. But even during the past fifteen years when cases more directly focused on religion (religious symbols at work, ritual slaughter, time-off for religious observance, ethos-based discrimination) greater caution has been detectable, even in the context of employment discrimination where elements of the Court’s case law pull it in a more interventionist direction.

The CJEU has been notably keen to give Member States considerable leeway to regulate issues relating to religion’s role in society (including individual and collective religious freedom), particularly when dealing with cases that include elements that touch on issues related to the political hot button of multiculturalism. I will suggest that this caution on the part of the Court of Justice about its ability to use its interpretative powers to identify and impose ideal, Union-wide solutions to the difficult issues that arise in relation to the place of religion in contemporary Europe is the correct approach, for both textual and pragmatic reasons.

Deference to Member States choices

Just how deferential has the Court been? The desire to interpret EU law in order to give Member States leeway to pursue different approaches in contentious areas has certainly been a feature. For example, the Court has permitted bans on the wearing of religious or philosophical symbols at work (Achbita) while also making it clear that Member States are also entitled to facilitate the wearing of such symbols if they so choose (WABE e.v.). It has also declined to interfere with prohibitions on religious slaughter (disregarding the advice of the Advocate General who urged a more interventionist approach).

This caution has been subject to significant criticism. Much of this is understandable. It is undeniable that principles such as secularism or neutrality have been used by those who have exclusionary agendas. It is also the case that for many adherents to faiths, such as Judaism and Islam, that place greater emphasis on worn symbols than neutrality rules can present more of a challenge than they do for most Christians. In addition, given that religion often overlaps with racial and ethnic identities and that in many cases the relevant religious symbols are worn by women, there is the additional factor of potential discrimination on grounds of race and sex as well as religion.

In these circumstances many have expressed disappointment that the Court has not been more protective of religious freedom and freedom from discrimination on grounds of religion or belief. Both Spaventa and Weiler were notably critical of the failure of the Court to engage in a more searching analysis of the proportionality of laws restricting religious symbols and their impact on religious individuals.

Textual reasons for a cautious approach

In contrast, there are powerful reasons pushing against the Court from acting in a more assertive fashion in this area. Textually, Article 17 of the TFEU gives a clear steer to the Court of Justice. The Article states that “The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States”. Thus, the Treaty is clear that there is no single model of relationships between religion and state required by the requirements of European Union membership. There must, of course, be limits to such Member State discretion. The manner in which the accession criteria have been applied indicates that a full-blown theocracy cannot join the Union. But significant diversity is acceptable, something that is unsurprising given that the states who drafted and signed the Lisbon Treaty have arrangements that range from recognition of an official state religion to official separation of religion and state. That does not mean that religion and state relations will be entirely unaffected, as the Court of Justice (para. 58) and German Federal Constitutional Court made clear in Egenberger. What Article 17 requires is that Member States’ right to have different constitutional arrangements in relation to religion be taken into account by the CJEU in interpreting EU law, not that EU law may not in any way affect how Member States deal with religion (para. 246).

Broader reasons for a cautious approach

Beyond the text of the Treaty, there are other powerful reasons for the Court to be modest in its perception of its ability to identify ideal models or universally applicable approaches to religion in the different Member States. Not only, as already noted, have Member States always taken different approaches to these issues. It is also the case that in many Member States, the situation is highly fluid with significant societal changes prompting intense political debate and significant legal and political changes in the regulation of religion’s role in society.

In relation to religion, Europe has undergone a number of major changes in the past half century any one of which would have been sufficient to produce endless unforeseen consequences. After many centuries during which a very large majority of Europeans were believing Christians, levels of religious practice and belief suddenly collapsed in most EU Member States in recent decades. As I have written elsewhere: “for centuries, most Europeans went about their day to day lives believing they were being observed and judged by the Christian God. Most no longer do. The scale of changes that that will bring about can only be imagined.” There has also been a revolution in terms of norms around sex, sexuality and gender which are challenging for most traditional religions.

The decline in Christian belief and practice has been accompanied by an unprecedented growth in non-Christian communities, with Islam being by far the most numerically important of these. In many countries the longstanding contest between Christian and secular influences has now become a multiparty contest with other religions, particularly Islam, playing a notable role. As Shadi Hamid has noted, Islam has its own rich intellectual and historical traditions. While European Christianity has, overall, followed a pattern of declining levels of belief and practice, and eventual embrace of the notion of the secular nature of law and politics, as Hamid points out, there is not reason to suppose that Islam in Europe will follow this path. Indeed recent data from France suggests the opposite is the case.

In short, we do not have a large store of precedents for how changes of the magnitude that Europe is undergoing are successfully managed. Indeed, it is notable how, in recent times, there has been significant instability in the approaches of a number of states with governments switching between more multicultural approaches that take a favourable approach to the maintenance and expression of minority identities (including religious identities) and more integrationist approaches, closer to the French model of discouraging religious expression in certain areas.

In this context, and given that most of the religion-related cases before the Court of Justice involve legislation (Directive 2000/78) that is subject to unanimity in the Council and therefore effectively almost unamendable, it is understandable that caution and providing some leeway to Member States has marked the judges’ approach. In a context of such uncertainty and rapid change it would require a remarkable degree of self-confidence for the members of the Luxembourg court to decide that they had the necessary wisdom to use their powers to interpret EU law in a way that sought to resolve longstanding and fast shifting disputes between those who see religious diversity as best managed through facilitating religious expression and those who take the opposite view and regard coexistence as best served by curtailing such expression in some contexts.

Limits to CJEU deference

Notwithstanding its overall caution, the Court has not been entirely deferential. It has been clear that any bans on religious symbols at work must be comprehensive and avoid targeting the symbols of any particular faith (Achbita (para. 40) and Bougnaoui (para. 32-33)). It has required concrete justification for such restrictions rather than abstract reasons (WABE e.v. (para. 65)). It has also made it clear that compliance with customer preferences cannot be seen as a “genuine and determining occupational requirement” that could justify direct discrimination (Bougnaoui (para. 40)). The Court of Justice has therefore married the granting of considerable leeway to Member States with a degree of supervision that rules out openly discriminatory targeting of particular faiths.

As previously noted, the reluctance to set down meaningful restrictions on Member State autonomy is less pronounced in cases that are more remote from the politically-charged scenarios where issues of religion, integration, and multiculturalism are key features. Thus, in Egenberger, where the issue was the scope that religious employers can be given to engage in ethos-based discrimination, the Court of Justice made its position clear. It held that the previous approach, taken by German law of allowing religious employers to determine for themselves, subject only to plausibility review, whether a particular role needed to be subject to a religious affiliation test, was incompatible with EU law (para. 59). The Court justified this conclusion on the basis that Directive 2000/78, which it held to be a codification of the general principle of non-discrimination, required that religious affiliation tests (as well as requirements of loyalty to the ethos of a religious employer in IR) needed to be shown to be proportionate in the context of the nature of the post in question and its proximity to the religious mission of the religious body.

As this ruling significantly affected the constitutional protection of the self-determination of religious bodies under the German Constitution (the Basic Law), it was notably controversial. Indeed, the controversy extended to calls for the German Constitutional Court to declare the CJEU’s ruling ultra vires. However, the eventual ruling of the Constitutional Court has continued the delicate dance between the maintenance of meaningful protections from discrimination by the Court of Justice with the according of significant leeway to Member States to follow their own path in religious matters. The Karlsruhe judges agreed to meaningfully alter pre-existing approaches to religious autonomy to ensure that there is an objective link between a religious affiliation requirement and the tasks involved in any particular role and that an overall assessment of the proportionality in which religious autonomy rights and employee rights to equal treatment are balanced. At the same time, the Constitutional Court maintained much of the previous approach of German law by upholding the central importance of the religious body’s own perception of the requirements of its ethos. This, as Matthias Mahlmann has noted involves a degree of “pluralism of fundamental rights” which amounts, in effect, to a kind of “margin of appreciation” in the application of EU legal norms in this area.

This is an approach that will disappoint many. Those keen on upholding broad notions of religious autonomy and the ability of religions to constitute communities of the faithful, will be disappointed by the use of EU legal norms to curtail that autonomy. Those who see facilitation of religious expression (or as others see it, adherence to religious norms) as clearly the best path to follow in multicultural societies are also no doubt disappointed that the Court of Justice has not required Member States to adopt this approach. But, in the context of the high levels of change and uncertainty that characterise matters of religion in contemporary Europe, the approach of the Court of Justice of setting wide but meaningful boundaries on Member State autonomy in this area may represent the most politically sustainable and wisest approach for the time being.

The post Justifiable Caution appeared first on Verfassungsblog.