2013

• 27 November 2013: The Paris Court of Appeal announces its decision in the Baby Loup case

In its judgment of 27 November 2013, the Paris Court of Appeal added a new dimension to what has become known as the “Baby Loup case”; it all started with the dismissal from the crèche of a female employee who wore the Islamic veil. The crèche’s house rules specified that “the principle of freedom of conscience and religion of each member of staff cannot hinder respect for the principles of secularity and neutrality that apply in performing all the activities undertaken by Baby Loup, no matter whether on crèche premises or in its annexes or else in providing external support for children in the nursery” and the crèche used these rules to oppose the religious beliefs defended by its employee. In its judgment of 19 March 2013, the Court of Cassation had considered that “the principle of secularity established by Article 1 of the Constitution does not apply to employees of private companies who do not manage a public service”, which is the case of the Baby Loup nursery, a private law association. Thereafter, the provisions of the labour code apply, which provide that “No-one shall restrict persons’ rights and individual and collective liberties which would not be justified by the nature of the task at hand nor proportionate to the desired objective” (Article L. 1121-1). The general clause on secularity and neutrality featuring in the house rules of the Baby Loup association was thus judged to be invalid and the dismissal of the employee was declared null and void.

The Paris Court of Appeal confirmed the legality of the dismissal, yet following different reasoning. As such, it held that the crèche could be regarded as an “organisation with an ethos based on belief within the meaning of the case law of the European Court of Human Rights”, which would allow it to impose the neutrality obligation on its employees, just like an organisation with an ethos based on religion that can require that its employees adhere to a line of thinking defined by a religious doctrine. This idea of an organisation with an ethos based on religion or belief, absent from the labour code, is however defined in European Union law (Directive 2000/78 of 27 November 2000, which recognises in these organisations the “right to require from individuals working for them an attitude of good faith and loyalty to the ethics of the organisation”), as well as in French case law. In this case, this requirement of religious neutrality would be required to “respect and protect the wakening awareness of children”. An alternative approach to secularity is thus being put forward, having it change from a legal principle - which applies to public authorities in their relations with religious institutions and activities - to becoming a “conviction”.

For further information:
– CA Paris, 27 Nov. 2013, Madame Fatima L. / Association Baby Loup (in French)

• 16 October 2013: Jehovah’s Witnesses chaplains must be approved for prisons

The Council of State was called upon to quash several legal disputes relating to refusals to accept representatives from the Jehovah’s Witnesses as prison chaplains. The prison administration based its refusal on the insufficient number of detainees claiming to belong to this confession. The administrative courts and administrative courts of appeal involved had already condemned this reasoning (see Current Debates, 30 May 2011).

The Council of State confirmed the solution adopted by the original trial judges. Indeed, it recalled that detainees’ freedom of opinion, conscience and religion is guaranteed and that they “may exercise the religion of their choice, in accordance with the suitable conditions for organising the premises, within solely the limits imposed by security and good order in the institution”. The provisions of the Code of Penal Procedure require that prison authorities, “insofar as premises allow and within solely the limits imposed by security and good order in the institution, allow for the organisation of worship in establishments; that solely facilitating common law visits by representatives of the faith could not satisfy these obligations; that Paragraph 2 of no. 29 of the European Prison Rules, of which the minister avails himself and which is, moreover, without real legal scope, simply recommends making the number of approved chaplains proportional to the number of faithful, but has neither as its aim nor as its result for refusals of approval to be justified by low numbers of worshippers”.

The Council of State has also stated that nothing stops a chaplain being appointed who agrees to carry out such activity on a voluntary basis.

For further information:
– CE, 16 Oct. 2013, Garde des Sceaux, ministre de la justice et des libertés c/ m. n…et autres (in French)

• 15 October 2013: the Observatory of Secularity adopts two opinions on the application of the principle of secularity

The first opinion adopted by the Observatory follows up on the debates generated by the Baby Loup judgment of 19 March 2013. The Court of Cassation (see article below) addressed “the definition and structuring of religion in organisations dedicated to welcoming children”.

The Observatory of Secularity notes that extending the principle of neutrality beyond the public sphere, public services and their agents would risk violating a fundamental right and thus be subject to condemnation by the European Court of Human Rights - or even censure by the Constitutional Council for interfering with the freedom of religion of private individuals engaging in private activity. Justifying this extension of the principle of neutrality to childcare organisations on the grounds of the “vulnerability” of the children also encounters the difficulty - even impossibility - of precisely defining the concept. The Observatory also recalls that “secularity is not an opinion or a belief, but a common value” and that the notion of “organisation with a secular ethos” cannot be used.

The Observatory suggested the Baby Loup crèche “modify its house rules to clarify the means for meeting the self-assigned objectives of equality of all children and parents and refusing any distinction - political or denominational - by implementing restrictions to freedom of religious expression that are justified by aims specific to its activity and proportionate to these objectives”. It could also opt for a plan to delegate the public service that would involve applying the principle of neutrality of public services to its agents.

More generally, the Observatory recommends that the French Government on the one hand enacts an inter-ministerial circular as a reminder of the law in force on the matter and, on the other, re-disseminates the Charter of Secularity in Public Services originally published on 13 April 2007 within the entire public administration.

In its second opinion, the Observatory of Secularity sets out a “reminder of the law” on the content and boundaries of the principle of secularity: the responsibility of public authorities in the promotion and application of this principle, what secularity guarantees and what it prohibits.

For further information:
– Opinion of the Observatory of Secularity on the definition and management of the religious in bodies that provide childcare (in French)
– Reminder of the law on secularity and religion (in French)

• 10 September 2013: the Court of Appeal in Caen refuses to delete reference to a baptism from the parish register

In 2001, a parishioner who had renounced his Catholic faith asked the parish priest in the commune and the Bishop of Coutances that the phrase “has disowned his baptism by letter dated 31 May 2001” be inscribed on the parish register of baptisms relevant to his name - and this was granted. In 2006, then in 2009, the same person asked for mention of his baptism to be deleted from the register, which this time was refused. In its judgment of 6 October 2011, the High Court in Coutances then gave the order to proceed with the definitive erasure of the applicant’s name from the register of baptisms, considering that “the existence of a mention of this baptism on a register accessible to third parties to the individual concerned, even if the register is not viewable by everyone, is in itself disclosure of the fact, which consequently violates the respect for privacy of the person concerned.”

The defendants appealed this judgment and the Court of Appeal in Caen overturned the decision made by the first judges. It considered that the reference to baptism in the parish register does not in itself infringe the privacy of the person concerned. It is only the disclosure of this information under incorrect conditions that is likely to contravene the provisions of Article 9 of the Civil Code and whether such disclosure brings into disrepute the person involved or generates discriminatory attitudes towards him. In this case, no such behaviour occurred.

The Court points out that persons authorised to consult the register of baptisms are kept secret, the only publicity given to the existence of the baptism having been the action of the person involved. It also considers that there is not in this case violation of the provisions of Law no. 78-17 of 6 July 1978 on the processing of personal data, since the register respects the will of the person concerned by mentioning that he renounced on the sacrament of baptism. The freedom of the person concerned not to belong to the Catholic religion has thus been respected without needing to delete or further correct the document concerned.

For further information:
– TGI Coutances, 6 Oct. 2011, no. 10/00822 (in French)
– CA Caen, 10 Sept. 2013, no. 11/03427 (in French)

• 9 September 2013: presentation of the Charter of Secularity in Schools

On 9 September 2013, the Minister of National Education, Vincent Peillon, presented the "Charter of Secularity in Schools" which was henceforth to be displayed conspicuously in all state educational institutions of primary and secondary level. Composed of 15 articles, the Charter recalls the fundamental principles of the French Republic and highlights secularity in schools. It mentions the secular nature of lessons – their being open to scientific questioning, the strict neutrality of the personnel, the ban on wearing religious symbols, students’ freedom of expression and the rejection of any discrimination. This Charter must be brought promptly to the attention of students and the educational community and attached, to the greatest extent possible, to the house rules of each school.

On this occasion, the minister wished that the Declaration of the Rights of Man and the Citizen of 1789 and the motto of the Republic “Liberté, Egalité, Fraternité” be displayed inside schools and that the French Tricolour and the European flag be displayed on the façade of establishments in application of Article L.111-1-1 of the Education Code created by Act no. 2013-595 of 8 July 2013.

This law also added to the second paragraph of Article L.111-1 of the Education Code one sentence stating that “the public service of education enables all students to acquire respect for the equal dignity of human beings, freedom of conscience and secularity”.

For more information, see the Charter of Secularity in Schools (in French) on the website of the Ministry of National Education.

• 15 July 2013: State Council decision on ritual slaughter

Article R. 241-70 of the Rural and Maritime Fishing Code allows for an exception to the obligation to stun animals prior to their slaughter or to being put down, should it be incompatible with the practice of ritual slaughter. An association providing assistance to animals in slaughterhouses (Oeuvre d’assistance aux bêtes d’abattoir) had lodged an appeal against the Prime Minister’s refusal to repeal these provisions.

In its decision of 5 July 2013, the Council of State ruled that the provision allowing for the possibility of derogating from the obligation of prior stunning for practising ritual slaughter, which was enacted with the aim of reconciling the objectives of public health policy and equal respect for beliefs and religious traditions, did not violate the principle of secularity. It recalled that the principle of secularity imposes not only equality of all citizens before the law without distinction to religion and with respect for all beliefs, but also that the French Republic guarantees the free exercise of worship.

For further information:
– CE, 5 July 2013, no. 361441, Oeuvre d’assistance aux bêtes d’abattoir

• 27 May 2013: Survey on religion in companies

The Randstad Institute and the Observatory of Religion in Companies (OFRE) have presented the results of a survey on religion in companies conducted between September 2012 and March 2013 and involving 1,300 people (210 human resource executives in private companies, 481 local managers and 679 employees).

Very few cases of conflict

Less than a third (28%) of HR executives surveyed say that they have already faced issues related to religion in their company and only 6% of cases encountered led to deadlock or conflict. Nearly half of HR executives surveyed (41%) think nevertheless that this issue is going to become a problem in the near future.

A large majority (80%) of local managers say they do not feel particular unease on questions related to religious issues. However, they want to have managerial tools to understand these situations: margins for manoeuvre, knowledge of the rules, guidelines to understand the facts and requests etc.

Low impact of religious practice

Regarding the employees themselves, more than two thirds of respondents (68%) say they do not - or only partially - know about the religious practices of their colleagues. When this is the case, they consider either that this practice has no impact on work (75% of cases) or that it has a positive impact (20%), but rarely a negative impact (5%).

Legislative reform deemed not very useful

Following the judgment in the Baby Loup case rendered by the Court of Cassation, several French politicians have requested extending the principle of secularity to the private sphere and a proposal for a bill to this effect must be debated on 6 June at the National Assembly. The survey shows that respondents are rather sceptical about the need to legislate once more. Indeed, the usefulness of a law or a reform of the Labour Code is seen as the solution to improve things for only 12% of HR managers, 2% of managers and 16% of employees. 21% of HR executives, 45% of managers and 27% of employees believe that it would not very useful, 33% of HR executives, 30% of managers and 23% of employees even believe that it would be a damaging solution.

34% of respondents believe that the rule of secularity which applies in public services should apply to private companies. 36% believe that this is not necessary provided that the practice remains discreet and is regulated by the company and 30% feel that everyone is free to do as they please.

For more information, see the Randstad-OFRE press release and an article in the daily newspaper Libération.

• 9 May 2013: The French Council of the Muslim Faith fixes in advance the dates of Ramadan

The CFCM (French Council of the Muslim Faith) has adopted a resolution on the establishment of a lunar calendar based on astronomical calculations. For the first time, the dates of Ramadan (month during which Muslims fast during the day) are known in advance: it will begin on 9 July and end on 8 August 2013. This decision will perhaps not be unanimously welcomed: it is based on a theological choice justified here by the CFCM.

Until now, the date of the beginning of the month of Ramadan was decided in France after consultation based on calculation, decisions taken in the Muslim countries and observing the Moon the previous evening; accordingly, it could not be known in advance. Therefore, Muslims could not organise themselves easily and did not all follow the same calendar.

The CFCM has decided henceforth to publish the annual calendar of the dates of the beginning and end of Ramadan holidays and Muslim religious events. This decision will allow Muslims to organise and plan their lives in society (request leave to celebrate festivals or book rooms for community prayers, for example, in advance). Beyond this practical dimension, the measure also seeks to simplify the publication of the administrative circular mentioning the dates of religious feasts, a reference document for granting leave of absence for public sector workers. The CFCM has here provided a first concrete realisation, seeking to encourage public authorities to take account of Islam, while striving to unify Muslims in France.

• 19 March 2013: Wearing the veil and principle of secularity

The Social Chamber of the Court of Cassation has detailed the boundaries of the principle of secularity in two cases where an employee was dismissed on the grounds that she was wearing an Islamic veil.

In the first case, involving a primary insurance fund, the Court of Cassation held, for the first time, that the principles of neutrality and secularity were applicable to all public services, including when these are undertaken by private law bodies, as in the case in point. Employees are here participating in a public service role and cannot therefore express their religious beliefs using external symbols, in particular clothing. The dismissal of the employee was therefore declared to be founded.

On the other hand, the second case involving the Baby Loup crèche relates to a private association which cannot be considered to be managing a public service. The Court of Cassation issued a reminder that the principle of secularity established by Article 1 of the Constitution does not apply to employees of this crèche. Therefore, this principle cannot be invoked to deprive these employees of the protection that the provisions of the Labour Code afford them. These provide that restrictions to religious freedom must be justified by the nature of the task to be accomplished, respond to an essential and crucial professional requirement and be proportionate to the desired objective. The general clause of secularity and neutrality featuring in the house rules of the Baby Loup association is thus judged to be invalid and the dismissal of the employee was declared null and void.

This decision aroused many reactions among political actors; the government spokesman said that the principle of secularity “must not stop at the door of crèches” and that the government did not rule out legislating on the subject.

For further information (in French):
– Cass. soc., 19 March 2013, no. 11-28.845, Baby Loup
– Cass. Soc., 19 March 2013, no. 12-11.690, Caisse primaire d’assurance maladie de Seine-Saint-Denis

• 5 March 2013: Full veil and the ban on concealing one’s face in public

The Criminal Chamber of the Court of Cassation ruled for the first time, in two cases, on Law no. 2010-1192 of 11 October 2010, forbidding the concealment of the face in public.

Both cases involved a woman wearing a full veil. The first - very succinct - decision (no. 12-82.852), condemned a misinterpretation by the previous judge of the notion of public space as it follows in law. Indeed, the initial judges had decided that the person be discharged on the grounds that she had been stopped outside the police station and that “it is only at the initiative of the police officers that she entered this public institution, clothed in her veil”. However, as the Court of Cassation recalls, the wearing of the full veil is also to be challenged on public streets.

The interest of the second decision (no. 12-80.891) lies in what it says about the compatibility of the Law of 2010 with the European Convention on Human Rights and, in particular, Article 9 relating to freedom of religion. This time it involved a woman who, face hidden by a veil, had been stopped “in the vicinity of the Élysée Palace, where she had headed in the company of others wearing masks and with journalists”. The Court of Cassation based its decision on Article 9, section 2 which authorises states to apply restrictions on rights and freedoms protected by the Convention for reasons linked to public order, health or public morality, for example. However, according to the High Court, “such is the case of the law prohibiting full concealment of the face in public space in that it seeks to protect public order and safety by requiring that any person moving around in public show their face”.

It should be noted that the Court of Cassation refers in this decision to the classical components of tangible public order that are security and public order, while the debates preceding the adoption of the Law of 11 October 2010 had included the notion of intangible public order, presented in the report of the Council of State of March 2010 and the Decision by the Constitutional Council of 7 October 2010 (no. 2010-613 DC), which referred to minimum core requirements for life in society.

For further information (in French):
- Cass. crim., 5 March 2013, no. 12-82.852
- Cass. crim., 5 March 2013, no. 12-80.891.

• 21 February 2013: The law on faiths in Alsace-Moselle is backed by the Constitutional Council

A lay association “APPEL” (Association for the Promotion and Expansion of Secularity) filed a priority question of constitutionality (QPC) relating to the remuneration of pastors in Alsace-Moselle, considering that this was contrary to the constitutional principle of secularity. The Constitutional Council acknowledged in its ruling that the French State could continue to pay ministers of worship: as the drafters of the constitutions of 1946 and 1958 did not call into question the provisions on applicable faiths in these départements, the latter are consistent with the Constitution. “The exception from the Concordat” is here upheld and strengthened.

For further information, see La Croix (in French).