The Court of Justice’s narrow understanding of religious freedom under EU law and of the social and cultural role of religions under EU law is playing with fire. In the name of anti-discrimination and neutrality, it risks undermining religious freedom in ways that are particularly detrimental to Muslim minorities – both by feeding into nationalist, Christian-heritage identity politics and by advancing a liberal narrative that frames restrictions as necessary to protect women’s rights and non-discrimination. At the same time, the Court proceeds as if European constitutional systems were roughly homogeneous, disregarding the profound diversity of church–state relations and the very different legal and social positions religious communities occupy across Member States. This double-blind spot – towards Muslim minorities and towards Europe’s plural constitutional traditions – makes the CJEU’s approach not only normatively troubling, but structurally ill-suited to the realities it seeks to address.

Balancing various aspects of religious freedom under EU law

The legal provisions that have most frequently served as a compass for the Court of Justice to adjudicate cases revolving around religious freedom have been Article 10 of the EU Charter; a safety valve that has protected the national status of religious groups (Article 17 of the Treaty on the Functioning of the European Union); some provisions about animal welfare (Article 4 of Regulation 1099/2009); and antidiscrimination rules in the employment field. On their face, all these rules seem to protect religious practices such as ritual slaughtering, prevent religious discrimination, and carve out a sphere of immunity for religious institutions that enjoy a special status at the state level. However, the Court of Justice does not seem to have balanced this multilayered legal framework taking into account religious freedom needs and the variety of church and state models within the EU.

The challenge of religious pluralism

The EU Court of Justice has repeatedly intervened in the extremely sensitive field of religious symbolism, virtually authorizing the eradication of religious symbols from both public institutions and private companies. Although it has formally operated cheek-in-tongue, avoiding spelling out the notion of state neutrality as its preferred public policy, practically speaking it has almost invariably upheld that approach, at the expense of individual religious practice.

The same dynamic has taken place in the context of religious dietary prescriptions. A stream of Court of Justice’s rulings has progressively legitimized limitations on the production of food that is compliant with religious prescriptions: First allowing the ban on temporary abattoirs, then ruling out the possibility that religiously slaughtered food be considered organic, and finally declaring that states or sub-national entities can outright ban religious slaughtering, as long as edible meat is still available to the communities hit by the ban – i.e. Muslims and Jews. In doing so, the Court has alternatively narrowed the interpretation of religion-friendly rules or overstretched the interpretation on facially neutral rules that actually impact on religious practices.

Overlooking religious freedom for Muslims

The impact of the EU Court of Justice’s case law in this field has not generated much controversy outside of academic discourse. Its political and symbolic ramifications have been fairly modest. European society seems to accept that the Court is embracing a strong neutrality-based approach and that its case law is taking a shape that is hardly inclusive and respectful of the variety of religious affiliations and identities. This is probably due to the fact that the main target of state and company policies affecting religious freedom with this neutrality-based logic are Muslim minorities. The 9/11 terrorist attacks on American soil and especially the atrocious and long stream of killings that have taken place in Europe in the 21st century have probably worsened the already complex relationship between Muslims and the rest of Europeans. Limits to the enjoyment of religious freedom among Muslims, which perhaps even discourage their immigration, do not seem to concern EU citizens.

This dismissive approach to Muslim needs has deeply infiltrated European political culture. Some of the most vocal opponents of Islamic integration in Europe are the parts of civil society that usually fall under the umbrella of populism, illiberalism, or supporters of state sovereignty. A strong sense of identity and the development of new narratives that harken back to the inception of Christianity in Europe have reinvigorated the political and even legal role of religious identity and affiliation. Christianity has become a booster of state sovereignty, independence, and pride. This phenomenon has been quite successful in Eastern Europe. Especially after the collapse of the Soviet Empire, religion has made a powerful comeback as a political and ideological identifier for countries that liberated themselves from the Communist yoke and rediscovered their faith and religious lineage vis-a-vis the atheist regime. For sizable parts of European society, the Islamic presence is not welcome because it challenges this narrative and vision.

But European social and political movements that lie on the other hand of the ideological spectrum and support supranationalism and liberal constitutionalism are often not fond of Islamic traditions either. They usually push back against the public visibility of religious affiliation and belonging, see centuries-old Islamic practices as challenging the progressive narrative of rights and civilisation they espouse, and read gender biases into religious symbols, such as the Muslim veil for women. In this respect, liberals and so-called illiberals largely share a common hostility towards Islam in Europe.

Additionally, Muslims seem to find it hard to make their voice and needs heard both at the state and supranational level also because the appearance of Islam in Europe does not follow the old Christian pattern. Although now a sizable group especially in some regions of the Continent, the Muslim presence in Europe stretches throughout its territories instead of being located in specific areas. It does not replicate the centuries-old tradition of states with a predominant religious tradition, with which they have alternatively partnered, clashed, or identified, giving shape to a unique national model of church and state relationship. Muslims therefore do not have the agency that is available to other religious groups at the state level and are more exposed to hostile state policies. Instead of recognising that new minorities in Europe do not map onto the longstanding tradition of special ties between a state and a religion and therefore cannot leverage the political support that other religious groups may enjoy, the EU Court of Justice has easily accepted and even embraced state policies that willingly or inadvertently target them.

The place of pluralism and diversity in the reasoning of the Court of Justice

The EU Court of Justice has repeatedly dealt with cases between religious entities, such as cultural hubs or hospitals, and employees or candidates who argued that they had been discriminated against because of their personal beliefs or behaviours. In this field, the Court has been prone to investigate the affairs of religious institutions closely, without giving state policies the same leeway it has accorded to them in the context of religious pluralism.

To adjudicate these controversies, the EU Court of Justice has largely built on the case law of the European Court of Human Rights, which has been dealing with the same issues for some time. While the Strasbourg Court has largely recognised that states have wide discretion in how they handle these matters, the EU Court has been much more intrusive. It has urged domestic courts to decide these cases balancing the interests involved and especially weighing the religious affiliation or the relevant behaviour of the complainant employee against her employment duties and the ethos of the institution. All in all, the EU Court has given a fairly detailed checklist to domestic courts, thus encouraging them to adopt a specific type of scrutiny.

Although its leading cases originated in Germany, the case law of the Court of Justice is able to radiate to the whole spectrum of EU states and territories. But EU Member States have very different models of church and state relations. Some of them integrate religious entities within the span of public institutions (such as Germany), while others keep them more distant, or display a special affiliation with a specific denomination. It is difficult to reconcile this variety of legal systems and the rather strong enforcement of antidiscrimination provisions with the different state and church models and the commitment of EU law to respect the domestic status of religious groups. The articulation of civil society across EU territories varies significantly; the Court of Justice’s approach hardly reflects this reality – for example, think of the Advocate General’s warning that Spain may have to terminate its agreement with the Catholic Church to comply with EU law.

Conclusions

The case law of the EU Court of Justice may have powerful ramifications for religious freedom and for the public role of religions in the EU, although its impact has not received the cultural, social, and political attention it deserves. Two main reasons explain this lack of interest.

First, one of the primary victims of the Court of Justice has been religious freedom for Muslim minorities. Heightened scepticism toward Islam has characterised a large part of the political and ideological spectrum of Europe lately, making Muslim claims difficult to heed and welcome. This resistance to Islam cuts across most of the European political spectrum: factions that hold very different views of the EU seem to overlap on this matter.

The second reason for the lack of interest in how the Court of Justice handles the life of religious institutions lies in the modest knowledge of the different statuses that religions enjoy in every EU Member State. The approach of the EU Court, which is oblivious to the variety of church and state relations and the articulation of civil society in Europe, probably reflects a wider ignorance. Few, including the EU Court, seem to appreciate that religious groups and institutions rarely enjoy the same legal status and keep the same distance from state institutions. The relationships between religions and states may be more or less open, friendly, or hostile, depending on the jurisdiction. Thinking that religious institutions share the same needs, enjoy a similar status, and should behave roughly the same does not consider the nuances that characterise EU territories. As seen above, the jurisprudence of the Court of Justice focuses on Germany, where the ties between religious and state institutions are fairly strong. But EU territories cover a wide array of constitutional systems, and, if the Court of Justice applies elsewhere the same logic it developed for German cases, it may upset longstanding church and state relationships.

In the long run, the EU Court of Justice may trigger two pernicious developments. It is more likely to face increasing resistance from strongly rooted religious communities and from large swaths of European public opinion if it replicates its antidiscrimination approach regarding religious employers outside Germany, where religious bodies have a different status and the connections between a religious group and state institutions are different. But the Court is also alienating Muslim believers; more broadly, its approach may give the impression that the EU does not accept Islam as a component of European society. This would widen the gap between Islam and Europe, playing into the hands of extremist and terrorist groups, who have been leveraging Islamic disheartened individuals who realised they would be never able to integrate, to fill their ranks with anti-Western acolytes. In a nutshell, the EU is on the verge of letting down religious majorities and minorities across Europe.

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