SOURCE: Monthly Case-law Digest - March 2021
Reference for a preliminary ruling – Intellectual property – Copyright and related rights in the information society – Directive 2001/29/EC – Article 3(1) – Concept of ‘communication to the public’ – Embedding, in a third party’s website, of a copyright-protected work by means of the process of framing – Work freely accessible with the authorisation of the copyright holder on the licensee’s website – Clause in the exploitation agreement requiring the licensee to introduce effective technological measures against framing – Lawfulness – Fundamental rights – Article 11 and Article 17(2) of the Charter of Fundamental Rights of the European Union
Stiftung Preußischer Kulturbesitz (‘SPK’), a German foundation, is the operator of the Deutsche Digitale Bibliothek, a digital library devoted to culture and knowledge, which networks German cultural and scientific institutions. The website of that library contains links to digitised content stored on the internet portals of participating institutions. As a ‘digital showcase’, the Deutsche Digitale Bibliothek itself stores only thumbnails, that is to say smaller versions of original images. VG Bild-Kunst, a visual arts copyright collecting society in Germany, maintains that the conclusion with SPK of a licence agreement for the use of its catalogue of works in the form of thumbnails should be subject to the condition that the agreement include a provision whereby SPK undertakes, when using the works covered by the agreement, to implement effective technological measures against the framing, by third parties, of the thumbnails of such works on the website of the Deutsche Digitale Bibliothek. SPK considers that such a term in the agreement is not reasonable in the light of copyright, and brought an action before the German courts seeking a declaration that VG Bild-Kunst is required to grant SPK that licence without any condition requiring the implementation of such measures to prevent framing. Against that background, the Bundesgerichtshof (Federal Court of Justice, Germany) asks the Court for a determination of whether that framing must be held to be a communication to the public within the meaning of Directive 2001/29, which, if that is the case, would permit VG Bild-Kunst to require SPK to implement such measures.
The Grand Chamber of the Court holds that the embedding by means of framing, in a website page of a third party, of works protected by copyright and made freely accessible to the public with the authorisation of the copyright holder on another website constitutes a communication to the public where that embedding circumvents protection measures against framing adopted or imposed by the copyright holder.
Findings of the Court
First, the Court states that the alteration in the size of the works in framing is not a factor in the assessment of whether there is an act of communication to the public, so long as the original elements of those works are perceptible. Next, the Court states that the technique of framing constitutes an act of communication to a public, since the effect of that technique is to make the posted element available to all the potential users of a website. Further, the Court states that, provided that the technical means used by the technique of framing are the same as those previously used to communicate the protected work to the public on the original website, namely the Internet, that communication does not satisfy the condition of being made to a new public and that communication accordingly does not fall within the scope of a communication ‘to the public’, within the meaning of Directive 2001/29.
However, the Court adds that that consideration is applicable only in a situation where access to the works concerned on the original website is not subject to any restrictive measure. In that situation, the right holder has authorised from the outset the communication of his or her works to all internet users. Conversely, the Court states that, where the right holder has established or imposed from the outset restrictive measures linked to the publication of his or her works, he or she has not agreed to third parties being able to communicate his or her works freely to the public. On the contrary, his or her intention was to restrict the public having access to his or her works solely to the users of a particular website. Consequently, the Court holds that, where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a third party, by means of the technique of framing, constitutes an act of ‘making available that work to a new public’.
That communication to the public must, therefore, be authorised by the right holders concerned. The opposite approach would amount to creating a rule on exhaustion of the right of communication. Such a rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his or her work. Accordingly, the consequence of such an approach would be that the need to safeguard a fair balance in the digital environment, between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property, and, on the other, the protection of the interests and fundamental rights of users of protected subject matter, would be disregarded. Last, the Court makes clear that a copyright holder may not limit his or her consent to framing by means other than effective technological measures. In the absence of such measures, it might prove difficult to ascertain whether that right holder intended to oppose the framing of his or her works.
SOURCE: Monthly Case-law Digest - September 2021
Reference for a preliminary ruling – Company law – Takeover bids – Directive 2004/25/EC – Article 5 – Mandatory bid – Article 4 – Supervisory authority – Final decision making a finding of infringement of the obligation to make a takeover bid – Binding effect of that decision in subsequent proceedings for an administrative sanction initiated by the same authority – EU law principle of effectiveness – General principles of EU law – Rights of the defence – Charter of Fundamental Rights of the European Union – Articles 47 and 48 – Right to silence – Presumption of innocence – Access to an independent and impartial tribunal
By decision of 22 November 2016, the Übernahmekommission (Takeover Commission, Austria; ‘the Takeover Commission’) determined that GM, a natural person, and four companies had acted in concert so as to incite another company to enter into a transaction that led to a significant increase in the holding of its principal shareholder. On the basis that the parties in question held a controlling interest, within the meaning of the Austrian legislation transposing Directive 2004/25, in the company concerned, the Takeover Commission held that they should have made a takeover bid. After that decision had become final, the Takeover Commission initiated proceedings for the imposition of administrative sanctions against GM and two other natural persons, HL and FN, the latter two in their respective capacities as board member and director of two of the companies to which the decision of 22 November 2016 related. By decisions of 29 January 2018, the Takeover Commission imposed administrative sanctions on GM, HL and FN on the basis, amongst other things, of the findings of fact set out in the decision of 22 November 2016.
The Bundesverwaltungsgericht (Federal Administrative Court, Austria), before which actions against the decisions of 29 January 2018 have been brought, is in doubt as to the compatibility with EU law of the national administrative practice followed by the Takeover Commission. Under Austrian law, a decision making a finding of infringement, such as the decision of 22 November 2016, once final, is binding not only on the authority which made it, but also on other administrative and judicial authorities which may have cause to rule, in other proceedings, on the same factual and legal situation, provided that the parties concerned are the same. As regards HL and FN, the Federal Administrative Court doubts that this condition is met, given that they were not ‘parties’ to the proceedings in which the finding of infringement was made, but simply acted as representatives of two of the companies which were parties to those proceedings. Nevertheless, it states, in the proceedings for an administrative sanction the Takeover Commission treated the decision of 22 November 2016 as having binding effect as regards HL and FN. As HL and FN were not ‘parties’ to the proceedings for a finding of infringement, they did not have the benefit of all the procedural rights of a ‘party’, including the right to silence. By its questions, the Federal Administrative Court asks, essentially, whether Articles 4 and 17 of Directive 2004/25, read in the light of the rights of the defence guaranteed by EU law, in particular the right to be heard, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, preclude a national practice such as that followed in the present case by the Takeover Commission.
Findings of the Court
As Directive 2004/25 does not lay down rules governing the effect that final administrative decisions adopted pursuant to that directive are to have in subsequent proceedings, the rules at issue in the main proceedings are within the procedural autonomy of the Member States, subject to compliance with the principles of equivalence and effectiveness. Thus, Directive 2004/25 does not, in principle, prevent the Member States from establishing an administrative procedure divided into two separate stages, as in the present case, or a practice under which binding effect is given, in subsequent proceedings, to administrative decisions which have become final. Indeed, such a practice may help to ensure the efficiency of administrative proceedings for a finding of failure to comply with the rules of Directive 2004/25, and for the imposition of a sanction in respect of such a failure, and thus to ensure the useful effect of that directive. However, the rights of the parties as guaranteed by EU law, and in particular by the Charter of Fundamental Rights, must be respected at both of those procedural stages.
As regards persons who, like GM, were parties to the proceedings which led to the adoption of a decision making a finding of infringement, it is permissible for the Member States to give binding effect to such a decision in subsequent proceedings for the imposition of an administrative sanction on those persons in respect of that infringement, provided that they were able to exercise their fundamental rights, such as the rights of the defence, the right to silence and the presumption of innocence, in the proceedings for a finding of infringement.
In contrast, having regard to the subjective nature of the rights of the defence, the same does not apply to persons who, like HL and FN, were not parties to the proceedings for a finding of infringement, even if those persons acted as members of a representative organ of a legal person which was a party to those proceedings. Accordingly, in proceedings for the imposition of an administrative sanction on a natural person, the administrative authority must disregard the binding effect which attaches to the assessments made in a decision the infringement of which that person is accused and which has become final, without the person concerned having had the opportunity to challenge those assessments, in his or her personal capacity, in the exercise of his or her own rights of the defence. Similarly, the right to silence precludes a situation in which such a person is deprived of that right in relation to factual matters which are subsequently to be used in support of the allegation and will therefore have an impact on the sentence or the sanction imposed. Furthermore, the presumption of innocence precludes a situation in which a natural person is held liable, in proceedings for an administrative sanction, for an infringement found to have been committed in a decision which has become final without that person having had the opportunity to challenge it, and which can no longer be challenged by that person, in the exercise of his or her right to an effective remedy, before an independent and impartial tribunal with jurisdiction to rule on issues of both law and fact. The benefit of the right to an effective judicial remedy must be available to all parties to the proceedings for an administrative sanction, whether or not they were parties to the earlier proceedings for a finding of infringement.
*The judgment is available on this portal only in French
SOURCE: Monthly Case-law Digest - February 2021
Reference for a preliminary ruling – Approximation of laws – Directive 2003/6/EC – Article 14(3) – Regulation (EU) No 596/2014 – Article 30(1)(b) – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self-incrimination
On 2 May 2012, the Commissione Nazionale per le Società e la Borsa (Consob) (National Companies and Stock Exchange Commission, Italy) imposed on DB penalties totalling EUR 300 000 for an administrative offence of insider dealing committed in 2009. It also imposed on him a penalty of EUR 50 000 for failure to cooperate. DB, after applying on several occasions for postponement of the date of the hearing to which he had been summoned in his capacity as a person aware of the facts, had declined to answer the questions put to him when he appeared at that hearing.
Following the dismissal of his appeal against those penalties, DB brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation, Italy). On 16 February 2018, that court referred an interlocutory question of constitutionality to the Corte costituzionale (Constitutional Court, Italy) concerning the provision of Italian law on the basis of which the penalty for failure to cooperate was imposed. That provision penalises anyone who fails to comply with Consob’s requests in a timely manner or delays the performance of that body’s supervisory functions, including with regard to the person in respect of whom Consob alleges an offence of insider dealing. The Corte costituzionale (Constitutional Court) pointed out that, under Italian law, insider dealing constitutes both an administrative offence and a criminal offence. It then noted that the provision concerned was adopted in performance of a specific obligation under Directive 2003/6 and now implements a provision of Regulation No 596/2014. Next, it asked the Court whether those measures are compatible with the Charter of Fundamental Rights of the European Union (‘the Charter’) and, in particular, the right to remain silent.
The Court, sitting as the Grand Chamber, recognises the existence, for natural persons, of a right to silence, protected by the Charter, and holds that Directive 2003/6 and Regulation No 596/2014 allow Member States to respect that right in an investigation carried out in respect of such persons and capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
Findings of the Court
In the light of the case-law of the European Court of Human Rights on the right to a fair trial, the Court emphasises that the right to silence, which lies at the heart of the notion of a ‘fair trial’, precludes, inter alia, penalties being imposed on natural persons who are ‘charged’ for refusing to provide the competent authority, under Directive 2003/6 or Regulation No 596/2014, with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
The Court states, in that regard, that the case-law relating to the obligation on undertakings to provide, in proceedings that may lead to the imposition of penalties for anticompetitive conduct, information which may subsequently be used to establish their liability for such conduct cannot apply by analogy to establish the scope of the right to silence of natural persons charged with insider dealing. The Court adds that the right to silence cannot, however, justify every failure to cooperate on the part of the person concerned with the competent authorities, such as refusing to appear at a hearing planned by those authorities or using delaying tactics designed to postpone it. Finally, the Court notes that both Directive 2003/6 and Regulation No 596/2014 lend themselves to an interpretation which is consistent with the right to silence, in that they do not require penalties to be imposed on natural persons for refusing to provide the competent authority with answers which might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability. In those circumstances, the absence of an express prohibition against the imposition of a penalty for such a refusal cannot undermine the validity of those measures. It is for the Member States to ensure that natural persons cannot be penalised for refusing to provide such answers to the competent authority.
SOURCE: Monthly Case-law Digest – April 2021
Reference for a preliminary ruling – Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43/EC – Article 7 – Protection of rights – Article 15 – Sanctions – Action for compensation based on an allegation of discrimination – Defendant acquiescing to a claim for compensation without recognition on its part of the discrimination alleged – Connection between the compensation paid and the discrimination alleged – Article 47 of the Charter of Fundamental Rights of the European Union – Right to effective judicial protection – National procedural rules preventing the court seised from ruling on whether there was discrimination as alleged, despite the express request of the claimant
In 2015, the captain on board an internal Swedish flight operated by the airline Braathens Regional Aviation AB (‘Braathens’) decided to subject a passenger of Chilean origin resident in Stockholm (Sweden) to an additional security check. Acting on behalf of the passenger, who considered that he had been the subject of discrimination for reasons connected with his physical appearance and ethnicity, the Diskrimineringsombudsmannen (Equality Ombudsman) asked the Stockholms tingsrätt (District Court, Stockholm, Sweden) to order Braathens to pay that passenger compensation for discrimination. Braathens agreed to pay the sum claimed without however recognising the existence of any discrimination.
The first instance court therefore ordered the payment of that sum but declared inadmissible the Equality Ombudsman’s claims seeking a declaratory judgment making a finding of the existence of discrimination. That court considered that, under Swedish procedural law, it was bound by Braathens’ acquiescence and was thus required to dispose of the litigation without examining whether there had been any discrimination. After having unsuccessfully appealed against the judgment of the first instance court, the Equality Ombudsman brought an appeal before the referring court, the Högsta domstolen (Supreme Court, Sweden).
Having doubts as to whether the Swedish legislation complies with the requirements of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which guarantees every person the right to an effective judicial remedy, the Supreme Court decided to refer a question to the Court of Justice as to whether, where a defendant acquiesces to a claimant’s claim for compensation, the court seised must nevertheless be able to examine the question of the existence of discrimination upon the request of the party who considers that he or she was subject to it.
Findings of the Court
At the outset, the Court recalls that the purpose of Directive 2000/43 is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. Compliance with that principle requires the effective judicial protection of the right to equal treatment of persons who consider themselves victims of such discrimination, whether those persons act directly or through the intermediary of an association, organisation or other legal entity. In addition, the sanctions put in place in order to transpose that directive into the national legal order of a Member State must ensure real and effective judicial protection of the rights that are derived from it. The severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect, while complying with the general principle of proportionality.
In that regard, the Court holds that Articles 7 and 15 of Directive 2000/43, read in the light of Article 47 of the Charter, precludes a national law which prevents a court that is seised of an action for compensation based on an allegation of discrimination prohibited by that directive from examining the claim seeking a declaration of the existence of that discrimination where the defendant agrees to pay the compensation claimed without however recognising the existence of that discrimination.
In the first place, it follows from Article 7 of Directive 2000/43 that any person who considers himself or herself to have been the victim of discrimination based on racial or ethnic origin must be able, in the context of proceedings to assert rights derived from the principle of equal treatment, to obtain a ruling from the court on the possible breach of those rights, if the defendant does not recognise the discrimination alleged. Therefore, the payment of the monetary amount alone is not capable of ensuring effective judicial protection for a person who seeks to obtain a ruling of the existence of such a breach. In the second place, such a national law is contrary to both the compensatory function and the dissuasive function required of the sanctions laid down by the Member States in accordance with Article 15 of Directive 2000/43.
The payment of a sum of money is insufficient to meet the claims of a person who seeks primarily to obtain recognition, by way of compensation for the non-material damage suffered, of the fact that he or she has been the victim of discrimination. Similarly, the requirement to pay a sum of money cannot ensure a truly deterrent effect as regards the author of the discrimination where, as in the present case, the defendant contests the existence of any discrimination but considers it more advantageous, in terms of cost and reputation, to pay the compensation claimed by the claimant. The Court also states that the option of bringing criminal proceedings does not make it possible, due to the specific purposes that such proceedings pursue and the constraints inherent therein, to remedy the failure of civil law remedies to comply with the requirements of that directive.
In the third place, the Court emphasises that that interpretation is not called into question by procedural law principles or considerations, such as the principle that the subject matter of an action is defined by the parties, the principle of procedural economy, and the concern to promote the amicable settlement of disputes. First, a national law such as that at issue in the main proceedings has the effect of transferring the control of the dispute to the defendant, since the claimant may no longer, where the defendant acquiesces to pay the compensation claimed, obtain from the court hearing the case a ruling on the cause on which the claim is based, nor may the claimant prevent the termination of the case brought on his or her initiative. Second, a national court would not in any way infringe the principle that the subject matter of an action is defined by the parties if, despite the defendant’s acquiescence to pay the compensation claimed by the claimant, it examined the existence or otherwise of the discrimination alleged by the latter, since that examination would consider the cause on which the claimant’s claim for compensation is based, which is the subject matter of the dispute. Finally, in the fourth place, the Court recalls that EU law does not as a general rule require Member States to create before their national courts remedies to ensure the protection of rights that parties derive from EU law other than those established by national law.
However, it observes that, in the present case, compliance with EU law does not require the creation of a new right of action, but merely that the referring court refuse to apply a procedural rule which prevents it from ruling on the existence of the discrimination alleged; and that this is so owing to the incompatibility of that rule not only with Articles 7 and 15 of Directive 2000/43 but also with Article 47 of the Charter. Those articles of the directive merely give specific expression to the right to effective judicial protection, as guaranteed by Article 47 of the Charter, which is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute between private persons.
SOURCE: Monthly Case-law Digest - July 2021
Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Internal rule of a private undertaking prohibiting the wearing of any visible political, philosophical or religious sign or the wearing of conspicuous, large-sized political, philosophical or religious signs in the workplace – Direct or indirect discrimination – Proportionality – Balancing the freedom of religion and other fundamental rights – Legitimacy of the policy of neutrality adopted by the employer – Need to establish economic loss suffered by the employer
IX and MJ, who are employed in companies governed by German law as a special needs carer and a sales assistant and cashier respectively, wore an Islamic headscarf at their respective workplaces. Taking the view that the wearing of such a headscarf did not correspond to the policy of political, philosophical and religious neutrality pursued with regard to parents, children and third parties, IX’s employer, WABE eV (‘WABE’) asked her to remove that headscarf and, following her refusal, temporarily suspended her from her duties on two occasions and gave her a warning. MJ’s employer, MH Müller Handels GmbH (‘MH’), following MJ’s refusal to remove that headscarf at her workplace, first transferred her to another post in which she could wear that headscarf and then, after sending her home, instructed her to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs. IX brought an action before the Arbeitsgericht Hamburg (Hamburg Labour Court, Germany) seeking an order that WABE remove from her personal file the warnings concerning the wearing of the Islamic headscarf. As for MJ, she brought an action before the national courts seeking a declaration that MH’s instruction was invalid and compensation for the damage suffered. MJ’s action before those courts was upheld and MH subsequently brought an appeal on a point of law before the Bundesarbeitsgericht (Federal Labour Court, Germany). In that context, the two courts decided to refer questions to the Court of Justice concerning the interpretation of Directive 2000/78. The Court was asked, inter alia, whether an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, constitutes, with regard to workers who observe certain clothing rules based on religious precepts, direct or indirect discrimination on the grounds of religion or belief; in what circumstances a difference of treatment indirectly based on religion or belief resulting from that rule may be justified and what elements must be taken into consideration in examining the appropriateness of such a difference of treatment.
In its judgment, delivered by the Grand Chamber, the Court explains inter alia the circumstances in which a difference of treatment indirectly based on religion or belief, resulting from such an internal rule, may be justified.
Assessment of the Court
The Court examines, first, in connection with Case C-804/18, whether an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, constitutes, with regard to workers who observe certain dress codes based on religious precepts, direct discrimination on grounds of religion or belief, prohibited by Directive 2000/78. 3 In that respect, the Court notes that the wearing of signs or clothing to manifest religion or belief is covered by the ‘freedom of thought, conscience and religion’. In addition, for the purposes of the application of Directive 2000/78, the terms ‘religion’ and ‘belief’ must be analysed as two facets of the same single ground of discrimination. Furthermore, the Court recalls its case-law according to which such a rule does not constitute direct discrimination provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, to dress neutrally, which precludes the wearing of such signs. The Court considers that that finding is not called into question by the fact that some workers observe religious precepts requiring certain clothing to be worn. Although a rule such as that referred to above is indeed capable of causing particular inconvenience for such workers, that has no bearing on the finding that that rule, reflecting a policy of neutrality on the part of the undertaking, does not, in principle, establish a difference in treatment between workers based on a criterion that is inextricably linked to religion or belief. In the present case, the rule at issue appears to have been applied in a general and undifferentiated way, since the employer concerned also required an employee wearing a religious cross to remove that sign. The Court concludes that, in those circumstances, a rule such as that at issue in the main proceedings does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief. The Court examines, secondly, whether a difference of treatment indirectly based on religion or belief arising from such an internal rule, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes. It answers that question in the affirmative, while identifying the elements on which that conclusion is based.
In that regard, the Court notes, first of all, that an employer’s desire to display, in relations with customers, a policy of political, philosophical or religious neutrality may be regarded as a legitimate aim. The Court states, however, that that mere desire is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer. The relevant elements for identifying such a need are, inter alia, the rights and legitimate wishes of customers or users and, more specifically, as regards education, parents’ wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.
In assessing whether such a need exists, particular relevance should be attached to the fact that the employer has adduced evidence that, in the absence of such a policy of neutrality, its freedom to conduct a business would be undermined, in that, given the nature of its activities or the context in which they are carried out, it would suffer adverse consequences. The Court then states that that difference in treatment must be appropriate for the purpose of ensuring that that policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner. Lastly, the prohibition on wearing any visible sign of political, philosophical or religious beliefs in the workplace must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition. Thirdly, the Court examines, in connection with Case C-341/19, whether indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting the wearing of visible signs of political, philosophical or religious beliefs in the workplace, with the aim of ensuring a policy of neutrality within that undertaking, can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs or whether a prohibition limited to conspicuous, large-sized signs is permissible, provided that is implemented consistently and systematically. It points out, in that regard, that such a limited prohibition is liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering.
Thus, where the criterion of wearing conspicuous, large-sized signs of the aforementioned beliefs is inextricably linked to one or more specific religions or beliefs, the prohibition on wearing those signs based on that criterion will mean that some workers will be treated less favourably than others on the basis of their religion or belief, which would amount to direct discrimination, which cannot be justified. Should direct discrimination not be found to exist, the Court observes that a difference of treatment such as that at issue in the main proceedings would, if it results in a particular disadvantage for persons adhering to a particular religion or belief, constitute indirect discrimination which can be justified only if the prohibition covers all visible forms of expression of political, philosophical or religious beliefs. It notes, in that regard, that a policy of neutrality within an undertaking may constitute a legitimate objective and must meet a genuine need on the part of the undertaking, such as the prevention of social conflicts or the presentation of a neutral image of the employer vis-à-vis customers, in order to justify objectively a difference in treatment indirectly based on religion or belief.
Such a policy can be effectively pursued only if no visible manifestation of political, philosophical or religious beliefs is allowed when workers are in contact with customers or with other workers, since the wearing of any sign, even a small-sized one, undermines the ability of that measure to achieve the aim allegedly pursued. Finally, the Court holds that national provisions protecting the freedom of religion may be taken into account, as more favourable provisions, in examining the appropriateness of a difference of treatment indirectly based on religion or belief. In that regard, it notes, in the first place, that, when examining whether the restriction resulting from a measure intended to ensure the application of a policy of political, philosophical and religious neutrality is appropriate, within the meaning of Article 2(2)(b)(i) of Directive 2000/78, account must be taken of the various rights and freedoms in question and that it is for the national courts, having regard to all the material in the file in question, to take into account the interests involved in the case and to limit the restrictions on the freedoms concerned to what is strictly necessary.
That ensures that, when several fundamental rights and principles enshrined in the Treaties are at issue, the assessment of observance of the principle of proportionality is carried out in accordance with the need to reconcile the requirements of the protection of the various rights and principles at issue, striking a fair balance between them. It notes, in the second place, that, by not itself carrying out, in Directive 2000/78, the necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment, and by leaving it to the Member States and their courts to achieve that reconciliation, the EU legislature allowed account to be taken of the specific context of each Member State and allowed each Member State a margin of discretion in achieving that reconciliation.