Il divieto per i dipendenti di imprese private di esibire simboli religiosi all'esame della Corte di Giustizia dell'Unione europea

The paper analyses in a critical way the notion of direct and indirect discrimination upheld by the Court of Justice of the European Union in both the Achbita and Bougnaoui judgments of 14 March 2017. The CJEU held that an internal rule of a private undertaking which expressly prohibits the visible wearing of any political, philosophical or religious sign during working hours in contact with customers, does not constitute direct discrimination under Article 2(2)(a) of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. However, such an apparently neutral obligation could constitute a difference of treatment indirectly based on religion creating a particular disadvantage in persons adhering to a particular religion. Nevertheless, such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary under Article 2(2)(b)(i). Whilst emphasising that the national court hearing the case has sole jurisdiction to determine whether, and to what extent, the internal rule meets those requirements, the CJEU provides guidance in that respect that does not seem to be compatible with Article 9(2) of the ECHR and with the ECtHR case law.