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The European Court of Justice Enters the Migration Fray

The European Court of Justice rulings rarely get a big media coverage, but the two recent judgments have come to be seen as yet another piece of the European migration jigsaw puzzle. Less known to the wider public than the Commission or the Council, the Luxembourg based Court has an important bearing on the EU policy and decision making. Upon request from national courts the Luxembourg judges are tasked with interpreting the EU law and ensuring that it is properly applied across the EU. If the ECJ decisions are formally binding only to those to whom they are addressed they do carry a lot of weight as an important source of law in the complex EU legal order. But the two recent judgments regarding the allocation of humanitarian visa and the employers’ right to ban staff from wearing a headscarf have a political potential of weighing heavily on the current immigration debate.

The first ruling was issued with reference to a request of a Syrian family for a humanitarian visa in Belgium. Submitted in Lebanon the request was aimed at providing the family with the possibility to apply for asylum upon accessing the Belgian territory. Despite being grounded on claims of torture and the precarious situation in the besieged city of Aleppo, and that as Orthodox Christians the family was at risk of persecution on account of their religious belief, the request was refused by the Belgian authorities. After a complaint filed by the Syrian family lawyer, citing violation of rights to international protection ensuing from the Geneva Refuge Convention and the EU Charter of Fundamental Rights, the case was referred to the European Court of Justice. The highest European court’s ruling backed the Belgian rejection of visa stating that the issuing of humanitarian visas remains within the national competence of each Member State. Referring to the 2013 EU Regulation on establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection, the Court concluded that ‘allowing the third country nationals to lodge application for visa in order to obtain international protection in the Member State of their choice would undermine the general structure of the system established by the Union for determining the Member State responsible for examining an application for international protection’. The position stood in stark contrast to the opposite, albeit non-binding, opinion of the Court Advocate General. Several human rights organisations condemned and deplored the judgment which was seen as providing grist to the mill of human smugglers who illegally transport refuges and migrants into Europe.

In the second ruling, the Court issued a joint statement regarding two separate cases of two women (of Belgian and French nationality) who lost their jobs for the reason of wearing a headscarf at work. The first dispute pits a Belgian private company employer against a female employee who was dismissed when she refused to take off her headscarf in the workplace. The woman claimed that the company violated the EU law on non-discrimination and protection of human rights, including fundamental freedom of religion. But the Court was of the opinion that companies should be free to decide on whether to allow religious symbols in the workplace or not. In a second, similar case, another company asked her French employee not to wear a scarf following a complaint from a customer. Contrary to the opinion of the Court’s adviser that this cannot constitute cause for dismissal, the Court upheld the view that by respecting customers’ wishes, companies do not breach discrimination law when refusing their employees the wearing of religious symbols, albeit only if it is objectively justified by a legitimate aim such as a company’s policy of neutrality vis-à-vis its customers. The Court maintained that ‘the prohibition of any political, philosophical or religious sign as an internal rule of an undertaking does not constitute direct discrimination’.

The ECJ’s court judgments sparked criticism among human rights and non-governmental organisations, and the representatives of religious minorities who claimed that the judgments opened the door to discrimination. But right wing politicians and some employers across Europe welcomed the ECJ’s position, which has been seen as the vindication of their own stance on religion’s place in society.

In the increasingly divided atmosphere across Europe over identity, religion and immigration it is difficult to see the position of European justice as neutral, even if the context is strictly speaking limited to legal interpretation of judicial acts. True, the ECJ is tasked with interpreting the EU law but its decisions may have important political consequences that go beyond the narrow legal realm.

The ECJ’s positions have also a significant importance in view of the EU accession to the European Convention of Human Rights (ECHR). Stipulated by the Lisbon Treaty the EU is required to accede the Convention which would enable individuals and legal persons to have access to the European Court of Human Rights for review of the decisions of EU institutions. Mired in legal disputes and power struggles the accession process has been dragging on for years with no end in sight. Much more conservative in its strict compliance with the principles enshrined in the Convention the European Court of Human Rights has been consequent in condemning human rights violations, as demonstrated in its latest judgment against Hungary’s border procedures and its treatment of asylum seekers.

These sometimes divergent positions between the two major European courts have given rise to questions about their complex interaction and possible future co-existence, should the protracted EU’s accession process to the European Human Right Convention come to fruition.

The controversy is a perfect example of the ongoing discussion in Europe and elsewhere about migration and its societal consequences. The fear that right wing parties get a firm grip on the European electorate has been slowly penetrating all strata of society. It now seems to be reaching the highest judicial instances.

The question that cannot yet be answered is how far this trend will continue and what consequences it will have on the cherished ideal of a European society based on openness and human rights.

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