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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.

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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.

Debates over the role of religion in contemporary European constitutional orders have increasingly shifted from the national to the European level, placing EU law and the jurisprudence of the Court of Justice under sharper scrutiny. While concrete expressions of the freedom of religion largely remain within the ambit of the variable regulatory frameworks of the Member States, the EU Charter, the Treaties, and secondary law – predominantly concerning the prohibition of discrimination in the workplace – are substantially influencing and curtailing their scope of discretion. Accordingly, EU jurisprudence collides with and shapes questions of religion, concurrently generating resentment and contestation both among progressive liberal narratives demanding stronger equality rights and among more traditionalist movements expecting greater room for national margins and the role of religion therein.

Nonetheless, the EU is far from absent in this picture and plays an important role as an external corrective or supervisory actor. In our view, despite imperfections in the CJEU’s case law, the external and differentiated role of the Court and of EU law can challenge claims of self-referential sufficiency. EU law provides a mirror and necessitates a dialogue in which these convictions are tested and, where necessary, redefined. The fact that religion’s role in societies is a sensitive field, closely intertwined with tradition and historical developments in the Member States, does not shield these matters from this dialogue, but rather reinforces the need for it.

The contributions to the symposium In Good Faith seek to situate the role of the CJEU and its jurisprudence within this context. They either welcome the Court’s generally deferential approach to the role of religion in the Member States or warn that the CJEU plays with fire in assuming that a single Luxembourg-approach can simultaneously deliver justice across Europe’s highly diverse and non-homogeneous legal and social landscapes.

The latest developments and the right balance

Beyond several general contributions on the changing role of the CJEU in matters of freedom of religion, this symposium analyses and elucidates some of the most recent and significant developments in this field. In particular, it examines, from highly diverse perspectives, Austria’s latest prohibition on headscarves in schools for Muslim girls under the age of 14, scheduled to enter into force in September 2026. This legislation has been justified on the grounds that such a prohibition ostensibly promotes social integration and gender equality and prevents “familial or societal pressure [on Muslim girls] to wear certain clothing, which could have negative developmental and psychological effects”.

In addition, the symposium critically examines how the CJEU’s Egenberger judgment (C-414/16) decisively changed the relationship and oversight of the Member States and their religious communities. Specifically, it explores how the CJEU’s interpretation of the prohibition of discrimination in the workplace has prompted the German Federal Constitutional Court (FCC) to amend and progressively evolve its control and review of the constitutionally guaranteed right of churches to self-determination. Following the CJEU’s approach, the FCC changed its decades-long practice and determined that occupational requirements imposed by the Church on the employees must plausibly be linked to tasks and activities involved, thereby necessarily differentiating the categories of employment. In other words, a Church gardener does not necessarily need to belong to a particular religious denomination. Moreover, the courts must review these requirements to ensure they are proportional and thus subject to civil judicial scrutiny.

The FCC’s Egenberger decision of November 2025 shows how timely and relevant the questions of religious freedom in the EU are, particularly in light of the shared and constitutionally multilevel framework of several fundamental rights systems interacting in a complex equation.

Freedom of religion in the EU

Freedom of religion, one of the cornerstones of liberal constitutional democracies, cuts both ways. Conceived as a right of religious self-determination, it exerts a remarkable influence on liberal constitutional frameworks, successfully carving out space for its reservations. The Egenberger decision underscores the significant weight attached to the collective dimension of freedom of religion vis-à-vis the prohibition of discrimination. At the same time, freedom of religion is frequently curtailed under the pretext of neutrality, masking covert prejudice or paternalistic attempts to force individuals to be free. The recent Austrian example discussed above demonstrates this tension well.

Given the explicit neutrality carve-out under Article 17 TFEU, EU law finds itself between a rock and a hard place. While the Union protects against discrimination and directly legislates on equal treatment in employment, this inevitably challenges Member States’ prerogatives regarding the appropriate scope of freedom of religion, a particularly sensitive area.

The symposium In Good Faith revisits recent case law in an effort to reconcile the dual nature of religious freedom from an EU law perspective. It examines the reciprocal relationship between freedom of religion and other fundamental rights, exploring how the former may impose limitations on the latter and, conversely, how these rights can constrain freedom of religion.

Dual dynamics of freedom of religion – equality and liberty

Religious freedom, constitutionally protected in all EU Member States and enshrined in Article 10 of the EU Charter, remains deeply contested. The extent of this right and the relationship between state and religion differ across the Union. On the one hand, (formerly) dominant religions continue to enjoy privileges in many states – primarily based on their autonomy as religious communities, and often in tension with other rights. On the other hand, individual freedom of religion, in particular the wearing of religious symbols by Muslims, is readily restricted, selectively justified by appeals to neutrality, customer preference, or abstract notions of vivre ensemble. Conflicts around religious freedom are intensifying as right-wing and conservative movements increasingly invoke Europe’s Christian heritage, framing migration and Islam as perceived threats.

In its headscarf jurisprudence, the CJEU has adopted a restrained approach, granting Member States a wide margin of discretion. The CJEU interprets freedom of religion primarily in the context of equality, rather than as a liberty-right. As long as neutrality requirements apply to all employees, they are not deemed to disproportionately restrict religious freedom. This reasoning neglects the extent to which these restrictions interfere with the beliefs of the individual and disproportionately affect Muslim women.

With respect to religious employers, the CJEU has adopted stricter scrutiny, requiring national courts to assess whether occupational requirements are “genuine, legitimate and justified”, and “necessary and objectively dictated”. This has narrowed the scope for denominational employers to discriminate, i.e. dismiss or hire persons, on grounds of belief. Nevertheless, religious communities continue to invoke their autonomy and right to self-determination to justify arguably discriminatory practices, as indicated by the latest Egenberger decision by the German FCC regarding church membership as a prerequisite for employment.

Like all fundamental rights, religious freedom must be carefully balanced against intersecting and competing rights and principles – equality, access to justice, state neutrality. Given the diverse understandings of religion across Member States, the CJEU has largely granted Member States discretion in religious matters while establishing only minimum standards. However, this judicial restraint rendered the Court’s interpretation of religious freedom somewhat one-dimensional, overlooking its broader implications for equality, societal diversity, secularism, and the role of religion in secular democratic states. Such a narrow framework risks overlooking the complex interplay between religious rights and other fundamental principles of liberal democracies.

This symposium sheds light on the dual dynamics of religious freedom in Europe: both the restrictions imposed upon it and those justified in its name. It explores how religious freedom is invoked to undermine rights such as non-discrimination and reproductive autonomy, and how, conversely, individual religious freedom is curtailed by state or societal norms.

Between meaningful boundaries and disregard for pluralism

In cases concerning religion in the workplace, the CJEU’s generally assertive stance in anti-discrimination law aligns with its general deference to questions about religion’s role in society. Ronan McCrea analyses how the Court addresses this tension by setting wide but meaningful boundaries for Member States. Although this approach has been criticised in the past, McCrea explains why it constitutes a prudent and defensible choice in light of the existing legal framework and the evolving religious landscape in Europe.

By contrast, Andrea Pin argues that, in the name of anti-discrimination and neutrality, the CJEU risks undermining religious freedom in ways that are particularly detrimental to Muslim minorities – both by feeding into identity politics and by advancing a liberal narrative that frames restrictions as necessary to protect women’s rights and non-discrimination. He is starkly critical of how the CJEU disregards the profound diversity of church-state relations and neglects the differing social positions occupied by religious communities across Member States. In his view, the CJEU’s approach is structurally ill-suited to the realities it seeks to address.

Headscarf jurisprudence and the contested balance

In its jurisprudence in the headscarf cases (Achbita, Bougnaoui, Wabe and Müller, LF and OP), the CJEU has taken a largely deferential approach, emphasising neutrality as a legitimate aim, derived from the freedom to conduct a business for private entities and the principle of neutrality for public bodies. The CJEU thereby provided little protection for freedom of religion and overlooked broader implications for equality and societal diversity.

Accordingly, Erika Howard argues that the CJEU struck the wrong balance in the headscarf cases. The Court overemphasised neutrality while neglecting the implications of a de facto headscarf ban for individuals and society. Moreover, she criticises the Court’s failure to engage with indirect discrimination based on grounds of sex or race (Article 21 of the EU Charter) or with the possibility of intersectional discrimination.

This narrow approach to indirect discrimination is also highlighted by Kristen Henrard. Her piece analyses how the Court’s approach differs in its scrutiny. In cases of religious slaughter and headscarves at work, the Court has been largely deferential and arguably hides behind a broad margin of appreciation.

Prohibitions on wearing religious symbols affect minorities in particular. Maria Francesca Cavalcanti shows how the constitutional architecture of religious freedom and non-discrimination proves insufficient to capture the specific vulnerabilities and identity-based claims of minority communities. In her view, protecting minorities demands more than balancing rights. It requires recognising the specific forms of vulnerability produced by their social and constitutional position.

Forced to be free

Concerning the recently renewed prohibition of headscarves for Muslim pupils, proponents describe it as a “clear commitment to gender equality” and a step toward “empowering girls”. In 2020, however, the Austrian Constitutional Court had already declared a similar headscarve ban in schools unconstitutional. Peter Bußjäger analyses how the new prohibition attempts to comply with the standards set by the Constitutional Court. Although the legislator has been largely successful in this regard, two crucial aspects seem to have been overlooked: the resulting stigmatisation and the underlying patriarchal structures. By contrast, Michael Lysander Fremuth supports this prohibition. Given the increasing number of reports from teachers and sociologists that girls lack autonomy and de facto freedom to determine their own identity, and considering the need to combat radicalisation and promote integration, he argues that these societal changes may prompt the Court to reassess and adapt its jurisprudence accordingly.

In addition, Paulus Blokker highlights the European struggle over the sacred and the profane. While not an entirely new phenomenon, the intensity seems to be increasing considerably. In his view, increasingly well-organised radical-conservative actors actively use liberal-democratic instruments to advance their claims in domestic and European political and legal arenas, a strategy amplified by an increasingly hostile international environment.

Egenberger and the limits of self-determination of churches

The symposium concludes with an analysis of the Egenberger decision by the German Federal Constitutional Court (FCC), a decision that was eagerly awaited. While the FCC avoided a looming conflict with the CJEU and affirmed a shared conception of fundamental rights, the decision offers numerous points for debate.

Lucy Vickers assesses the proportionality review employed in balancing the right to self-determination with individuals’ right to equality and non-discrimination. The fact that two courts could consider the same facts and reach opposite conclusions without either seeming to have misapplied the law shows how flexible the proportionality review can be. In her view, this flexibility is a great strength, allowing decisions of nuance and fact sensitivity, but also a significant weakness, demonstrating the fragility of the protection against discrimination on grounds of religion and belief in EU law.

Furthermore, Matthias Mahlmann analyses the decision and explains how the FCC changed its praxis, from now on requiring that occupational requirements imposed by the churches must have a direct link with the tasks in question. He argues that the FCC not only strengthens equality and non-discrimination but also reinforces the protection of religious freedom itself. In this light, the decision constitutes a substantial, constitutionally well-justified, fundamental-rights-friendly, and welcome shift.

In addition, Matthias Wendel and Sarah Geiger show that the Egenberger decision is not only about church labour law but also touches on fundamental issues in the interplay between national and European constitutional law in a multilevel system. While the FCC prevented unnecessary conflict with the CJEU through a balanced, conciliatory, and nuanced approach, they contend that the decision ends on an unwelcome note. By reasserting the possibility of national constitutional review of EU law with respect to individual fundamental rights under the Solange-doctrine, the FCC once again claims the authority to potentially disregard the primacy of EU law.

With numerous cases currently pending before the courts and a wide range of scholarly perspectives on the role of the CJEU in relation to freedom of religion and its associated rights, the issue remains more pertinent than ever. It appears that the questions addressed in this symposium are far from settled, and debates over the appropriate balance among these conflicting fundamental rights are likely to continue in the foreseeable future.

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