CASE NOTE: EWEIDA AND OTHERS V UNITED KINGDOM STEFANO TREVISAN* INTRODUCTION On 15th January 2013 the European Court of Human Rights (ECtHR) pronounced the ruling Eweida and Others v. United Kingdom1. The case originated in four conjoined applications instigated by four Christian British citizens, who claimed that the responsible High Contracting Party had failed to protect adequately their right to manifest their religion, breaching Article 9 of the European Convention for the Protection of Human Rights (ECHR) and/or their right to be free from discrimination in the exercise of this freedom under Article 14. At the outset, it must be noted that the mass media2, several scholars3 and the very United Kingdom Prime Minister4 have paid considerable attention to the decision at stake, which is now widely considered an important leading case in terms of freedom of religion. LLM Candidate, Tilburg University – International and Human Rights program. Eweida and Others v United Kingdom, no. 48420/10, 59842/10, 51671/10, 36516/10, ECHR 2013. 2 See inter alia “Archbishop attacks BA cross rules” , 2006, BBC, http://news.bbc.co.uk/2/hi/uk_news/england/north_yorkshire/6166746.stm; “British Airways Christian employee Nadia Eweida wins case”, 2013, BBC, http://www.bbc.com/news/uk-21025332; “Analysis: Milestone left in Christian-secular debate”, 2013, BBC, http://www.bbc.com/news/uk-21037173; “Christian discrimination claims heard by Europe court”, 2013, BBC, http://www.bbc.com/news/uk19467554;“The cross”, 2105, BBC, http://www.bbc.co.uk/religion/religions/christianity/symbols/cross_1.shtml; “Reinventing indirect discrimination”, 2014, The Employment Journal, http://www.lewissilkin.com/Journal/2012/September/Reinventing-indirect-discrimination.aspx; “The four Christians accusing their employers of discrimination”, The Telegrraph, 2013, http://www.telegraph.co.uk/news/religion/9519785/The-four-Christians-accusing-their-employers-ofdiscrimination.html. 3 See inter alia MAHER J., “Eweida and others: a new era for article 9?” International and Comparative Law Quarterly, Volume 63, Issue 01, (2014), pp. 213 – 233; PEARSON M., “Article 9 at a Crossroads: Interference Before and After Eweida”, Human Rights Law Review, 13:3, 2013, Oxford University Press; MCCREA R., “Religion in the Workplace: Eweida and Others v United Kingdom”, The Modern Law Review Limited, (2014), 77(2) MLR, pag. 277–307; WINTEMUTE R., “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others”, The Modern Law Review Limited, (2014), 77(2) MLR, pag. 223–253; VENTURA M., “Law and Religion Issues in Strasbourg and Luxembourg: The Virtues of European Courts”, European University Institute, Conference Paper, (2011). 4 “On 28 November [2006], the Prime Minister, Tony Blair, publicly stated that in his view the issue was not worth BA fighting and that it would be best for the airline "just to do the sensible thing": i.e. allow the cross to be worn” (Wikipedia, http://en.wikipedia.org/wiki/Eweida_v_British_Airways_plc). * 1 The present contribution firstly wants to examine the relevant key facts and the vital points of law, illuminating the arguments adopted in the legal reasoning. The analysis will develop firstly into two Sections, which will address the two pair of cases. In the third Section I will then outline the revolutionary content of the ruling, and the peculiar methodology adopted by the Court. SECTION 1: MS. NADIA EWEIDA AND MS. SHIRLEY CHAPLIN 1.1 FACTS AND RESULTS The first two applications5 essentially deal with the legal concept of reasonable accommodation in the context of working dress codes. In this respect, the present-day most quoted and authoritative document defines reasonable accommodation as a notion that “indicates a form of relaxation aimed at combating discrimination caused by the strict application of a norm, which, in certain of its effects, infringes on a citizen’s right to equality” 2 . The aforementioned concept expresses the principle of equality, which affirms that “comparable situations shall not treated differently, and different situations shall not be treated in the same way, unless the treatment is objectively justified”3. I will therefore outline how this principle and the relevant expression is fundamental in the understanding of the cases at stake. Ms Nadia Eweida has been working as a check-in clerk for the British Airways since 1999. In 2004 the company changed his dress code policy, asking to the employees to cover under the uniform any religious symbols. Worthy to note, this provision admitted a derogatory regime: where the visual symbol was impossible to hide due to its nature, 5 App., no. 48420/10, 59842/10. “Building the future: a time for reconciliation”, Abridged Report, Gouvernement du Québec, 2008. 3 MCCRUDDEN C., PRECHAL S., “The Concepts of Equality and Non-Discrimination in Europe: A practical approach”, European Commission Directorate-General for Employment, Social Affairs and Equal Opportunities Unit G.2, 2009, pag. 4. 2 then “approval [was] required through local management as to the suitability of the design to ensure compliance with the uniform standards”6. The claimant respected the mentioned rule until the 20th May 2006, when she decided to openly wear over her shirt a Christian cross hung to a necklace. Discussing the issue with a senior manager, she refused either to comply with the rule or to accept a position without customer contact. Therefore she was sent home unpaid until the 24th November 2006, when a BA dress code amendment expressively consented her to work showing the Christian cross on her neck. Ms Eweida sued the company, claiming that the covenant had violated with its dress code regulation and the consequent three and half months of unpaid period the right to manifest her Christian faith, through an unlawful indirect discrimination conduct. Having failed to obtain relief before the domestic courts, Ms Eweida brought her case to Strasbourg. Out of the four applications here analyzed, only Ms Eweida’s argumentations partially convinced the ECtHR judges, who ruled with a limited margin of 5 votes to 2 that the claimant’s treatment had amounted to an unjustified interference with Art. 9(2) ECHR. Ms. Chaplin’s case is similar for many aspects to the one above described. The claimant worked in England as a nurse for a State hospital since 1989. In 2007, a new V-necked tunic was introduced, and the hospital manager requested Ms. Chaplin to remove her Christian cross necklace. Given her refusal, she was moved to a different position, which ceased to exist in 2010. Having substantially7 exhausted all the national remedies, Ms. Chaplin pursuit compensation before the Strasbourg international court, challenging the legality of an asserted interference of her freedom of religious. At the end of the proceeding the Strasbourg Court did not find any European Convention violation, partially upholding the contested reasoning of the domestic courts. 6 Eweida, par. 10. Idem, par. 56: “The Court of Appeal in Eweida was clear that Article 9 was inapplicable since the restriction on wearing a cross visibly at work did not constitute an interference with the manifestation of religious belief. The Court does not find it established that, had the second applicant also sought to appeal to the Employment Appeal Tribunal and the Court of Appeal, her case would have been decided differently on this point”. 7 1.2 APPLICABLE LAW AND THE DOMESTIC JUDICIAL REASONING The rulings at stake need to be read in the light of the proceedings held before the domestic courts. Both claimants invoked the violation of the Employment Equality Act 2003, the latter designed to implement the Directive 2000/78/EC 4 . Section 3 of this regulation prohibits private employers to discriminate her/his employees on grounds of “religion or belief”, through an apparent neutral labor regime (“which he applies or would apply equally to persons not of the same religion”5) which can or does effectively disadvantage her/him. In addition, the cited Statute law provides an exclusionary regime, where the covenant proves that the practice impugned is a “proportionate means of achieving a legitimate aim”6. In both cases the competent British Courts denied the applicability of the invoked regulation, objecting essentially three counterarguments. On a first ground, the judges did not consider that by wearing the religious symbol at work the claimants had been expressing a genuine manifestation of a religious belief – hence no interference with the invoked right was proved. In this respect, addressing an evident sensible issue, the Courts found missing both objective and subjective elements7. Alternatively, the domestic judicial authorities relied on the so-called “free contract”8 or the ECtHR “freedom to resign” doctrine9, affirming that the claimants in both cases knew or must have known that their job position could not ensure them a limitless manifestation The Council Directive, “Establishing a general framework for equal treatment in employment and occupation”, required at Art. 2(2)(b) the respondent employer to demonstrate that any “apparently neutral provision, criterion or practice [that] would put persons having a particular ... religion or belief at a particular disadvantage compared to other persons’ was objectively justified by a legitimate aim and proportionate”. 5 Sec. 3 (b). 6 Sec. 3 (b) (iii). 7 Regarding the objective element, see Eweida v British Airways Plc [2010] EWCA Civ 80, [2010] ICR 890 par. 19, where Lord Justice Sedley controversially affirmed that the national and European antidiscrimination legislation require to ascertain “whether an identifiable group is adversely affected, whether actually or potentially, by some ostensibly neutral requirement and then whether the claimant has in fact been disadvantaged by it”. According to this line, the “solitary disadvantage” claimed by Ms Eweida could not per se have triggered the applicable law. Concerning the subjective element, the British judges did not consider the necklace cross as a genuine protected expression of a religious belief, being the latter merely a “personal choice rather than as a religious requirement” (par. 9, ibidem). 8 Cfr. MAHER J, pag. 223: “In essence, the free-contract doctrine holds that no interference with Article 9 occurs where a religious employee voluntarily accepts to abide by rules which restrict the manifestation of their religion”. 9 See Ahmad v UK (1982) 4 EHRR 126, par. 11 “[the claimant] remained free to resign if and when he found that his teaching obligations conflicted with his religious duties”. 4 of their religious faith. Interesting to note, this second mentioned argument has been directly derived from a consistent domestic case law10, which followed an ECtHR and Commission earlier jurisprudence11. On a third and last ground the British judges maintained that the contested labor practice had pursued with proportional means a legitimate aim. In the case of Eweida, the judges held that the British Airways’ conduct had met the proportional condition by installing a grievance mechanism which had “conscientiously addressed” the issue, and had offered job alternatives to accommodate the claimant’s requests, which the employee refused. One can read a similar argumentation in the case of Ms. Chaplin, where the State hospital was believed to had undertaken “as much dialogue and discussion with the claimant as was reasonable in the circumstances” 12 . However, whilst in Eweida the pursued legitimate aim (namely: to preserve a corporate image) was declared out of debate13, in the case of Ms. Chaplin the judges recognized an additional justifying reason - “the maintenance and provision of Health and Safety of both staff and patients” 14 . I will outline the impact of this last detail in the ECtHR’s reasoning analysis. All in all, in the British rulings analyzed we witness the expression of the so-called “multilayered system of human rights protection” 15 - with the interaction of national statute law, European Law and ECHR norms. The modern jurists have become familiar with this complex mechanism. In this peculiar legal framework, the domestic authorities did prefer a conservative interpretation of the national statute law, instead of an innovative solution suggested by an advanced reading of the ECHR law16. The international judges See R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL, at 897-98: “The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience”. 11 Cfr. Konttinen v. Finland, Commission’s decision of 3 December 1996 and - Stedman v. the United Kingdom, no. 29107/95, Commission of 9 April 1997. 12 See Chaplin v royal devon & exeter nhs foundation trust [2010] uket 1702886/09, par. 29. 13 See Eweida, par. 31 “… the uniform code [is] undoubtedly legitimate - a finding which requires no explanation”. 14 See Chaplin v Royal Devon & Exeter Nhs Foundation Trust [2010] UKET 1702886/09, par. 29. 15 VARJU M., “European Union Human Rights Law: The Dynamics of Interpretation and Context”, 2014, pag. 263 16 Cfr. MAHER J. “Eweida and Others: a new era for a article 9?”, International and Comparative Law Quarterly, Volume 63, Issue 01, January 2014, p. 218: “A common feature of the cases in Eweida and others is that the domestic outcome of each claim was determined by the English courts’ interpretation of statutory discrimination provisions rather than of Article 9 [ECHR].” 10 in Strasbourg would then set a higher protection standard of the human right invoked, with a cutting-edge sentence. 1.3 THE ECTHR JUDICIAL REASONING Concerning the first application, the ECtHR concluded that “[…] where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9”. Given the three main arguments elaborated by the domestic courts during the national proceedings, here we see how the ECtHR demolished and controverted all of them, innovating at the same time its own consistent case law. On a first ground the Court was addressed with a fundamental question: should a secular judge value what is a manifestation of a religious belief and what is not? The Strasbourg judges replied negatively to that question. This solution is praiseworthy for several reasons. Firstly: the contrary outcome would have burden the claimant with a probatio diabolica – to demonstrate rationally what is irrational (or at least not fully understandable by the human intellect). Moreover, a different conclusion would have confirmed a misleading and dangerous assumption – that the ECtHR has theological competences17. Hence the judges of Strasbourg properly preferred a more subjective approach, qualifying a “manifestation” ex Art. 9 CEDU as an act simply “intimately linked to the religion or belief”18. In so affirming, no question over the interpretation of the sacred scriptures was risen, since there is no “no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question”19. This is a reasonable obiter dictum, which clearly overruled previous opposite solution of the Court 20 , and will presumably resist in the next case law. Cfr. MAHER J., ibidem pag. 222: “Judges acting as ‘arbiters of scriptural interpretation’ is a role for which many would argue they are unqualified”. 18 Eweida and Others v United Kingdom, no. 48420/10, 59842/10, 51671/10, 36516/10, ECHR 2013, par. 82. 19 Eweida, par. 82. 20 Cfr., inter alia, X. v. the United Kingdom, no 8160/78, 1981, where the Commission was not convinced that attending Friday prayers in the mosque was required by Islam; Kosteski v. The Former Yugoslav Republic of Macedonia, no. 55170/00, ECHR 2006, where the Court was not persuaded that celebrating a religious holiday was a manifestation of belief as the applicant in that case did not substantiate his belief. 17 On a second ground, the Court famously overruled the constant jurisprudence based on the well-known “freedom to resign” doctrine, by preferring a more constraining judicial review. In this regard, given “the importance in a democratic society of freedom of religion”, the judges opted for an evaluation of the interests and rights at stake within a proportional balancing optic. This is undoubtedly another sea change of the Eweida case, which, I agree, “can only be applauded”, as it “recognizes the importance of religious beliefs and refuses to treat Article 9 rights differently from – and less importantly than – Articles 8, 10 or 11 rights”21. In fact, as MAHER remarkably notices, par. 83 of the Eweida and others judgment has fundamentally rewritten the protections of Article 9 in the workplace, establishing a scenario where “the rights of the religious employee in a secular work environment trump the desires of her employer”22. However, the Court’s reasoning is not entirely free from doubt. In this respect, MCCREA outlines that the case law cited by the Court in order to corroborate its overruling are all cases which deal with illegitimate punishment for employee’s conduct outside of work23. But I do not believe that the new Art. 9 ECHR reading is therefore less determinative. The Court is here simply stating that the various expressions of the personal identity (included religious belief) cannot be ground for unjustified discriminations, whether targeting the employee’s behave outside of work or while on job. Considering the third and last argumentation, the Court criticized the liberal approach of the British authorities, who had “accorded too much weight” 24 over the respondent’s legitimate aim. Two main factors seem to have firmly sustained this conclusion: Ms. Eweida’s cross has been described as “discreet”, and that others BA employees evidenced that they had been authorized to wear at work religious symbols25. The legal reasoning underling Ms. Chaplin’s ruling did not differ from the three steps argumentation highlighted above. However, in this application the peculiar context of the PERONI L., “Eweida and Others v. the United Kingdom (Part I): Taking Freedom of Religion More Seriously”, The Strasbourg Observer, 2013. 22 MAHER J., “Eweida and Others: a new era for article 9?” International and Comparative Law Quarterly, Volume 63, Issue 01, (2014), pp. 227. 23 MCCREA, “Religion in the Workplace: Eweida and Others v United Kingdom”, The Modern Law Review Limited, (2014), 77(2) MLR, pag. 280. 24 Eweida, par. 94. 25 See Eweida, par. 95: “There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image”. 21 case distinguished significantly the judges’ review. In this sense, a legitimate aim “of a greater magnitude” was found, namely “the protection of health and safety on a hospital ward”26. In this passage, I maintain that the reading of Art. 9(2) ECHR could not lead the Strasbourg Court to a different conclusion: according to a textual interpretation, the right to manifestation of one’s religious clearly finds an expressed limitation for the health protection. Though in Ms. Chaplin’s proceeding the specific concerns cited by her employers appeared to be “relatively weak and speculative”27, it is appropriate, in this regard, to recall that the right to health play a relevant role in the human rights discourse, as it is “indispensable for the exercise of other human rights”28. SECTION 2: MS. LADELE AND MR. MCFARLANE 2.1 FACTS AND RESULTS The Bible declares to the human kind that homosexuality is a sin. Although not outlaw among the Ten Commandments, same-sex relations are uncontrovertibly condemned in many Biblical passages 29 . Willing to observe that principle, the third and fourth applicant 30 of the Eweida case refused while at job to serve homosexual customers, objecting a religious belief. Ms. Ladele has been working for a public local authority as a registrar of births, deaths and marriages. The London Borough of Islington, the claimant’s employer and respondent in the domestic proceeding, since 2005 obliged the claimant to conduct civil partnership ceremonies for same-sex couples. Ms. Ladele suited the local authority, claiming that the disciplinary measures undertook against her amounted to a direct and 26 Eweida, par.99 MAHER, ibidem, pag. 228. 28 CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), point 1. 29 See for instance: Genesis 19:1-13; Leviticus 18:22; 20:13; Romans 1:26-27; 1 Corinthians 6:9; Romans 1:26-27; 1 Corinthians 6:11; 2 Corinthians 5:17; Philippians 4:13. 30 Eweida and Others v United Kingdom, no. 51671/10, 36516/10, ECHR 2013 27 indirect discrimination on grounds of religion or belief. The Court of Appeal on 15 December 2009 reversed the previous decision of the Employment Tribunal, and held that the Islington’s “laudable” anti-discriminatory aim should be implemented to the full, meaning that “all registrars should perform civil partnerships”31. Ms. Ladele lodged than a claim with the European Court of Human rights invoking a violation of both Art. 9 and 14 of the Convention. The fourth and last applicant, Mr. McFarlene, worked for Relate Avon Limited as a relationship and sex counsellor from May 2003 until March 2008. Since 2007 the claimant’s supervisor adopted various disciplinary means in order to address Mr. McFarlene’s decision to not work with gay, lesbian and bi-sexual clients, relying on religious motivation. Following unsuccessful attempts to solve the issue, Islington dismissed the applicant for “gross misconduct”, namely the violation of the employer’s policy of non-discrimination. Having failed to obtain relief before the domestic courts, Mr. McFarlene brought her case to Strasbourg. The ECtHR found both aforementioned applications admissible, but did not find any human rights violation. 2.2 APPLICABLE LAW AND THE DOMESTIC JUDICIAL REASONING The relevant legal framework of the two cases at stake did not differ from the one examined previously – hence national, European and Conventional law integrate and overlap each other. Nonetheless, two considerations are here worth mentioning. Firstly, both the public and private employers respondents in the domestic proceedings did have a written Code of conduct, which inter alia “challenge discrimination in all its forms”32 and expressively target the sexual orientation ground. Why it is that relevant? Undeniably the history and theory of human rights tell us that this peculiar norms were originally thought as “vertical norms”, applicable solely between individuals and the political authority. Slowly but surely, the so-called horizontal effects of human rights has been influencing the day-to31 32 Ladele v Islington LBC [2009] EWCA Civ 1357, [2010] 1 WLR 955 at par. 52. Eweida case, par. 23. day practice of both national jurisdictions and international courts, eroding what previously was simply regarded as the results of private economic activity through contracts. In this respect, the equality and diversity policies of private enterprises (expressed in Code of conduct) are playing a relevant role. On a second ground, it is crucial to note that the British Tribunal did not, as they did in the Ms. Eweida and Ms. Ladele proceedings, deny that the claimants’ conducts truly manifest the claimants’ religious belief. Excluding the first element of the three step argumentation previously examined, the domestic authorities did value the proceedings under a proportionality assessment. Subsequently, the European Court of Human Right found that the domestic courts’ handling of the claims to be fairly balanced. 2.3 THE ECTHR JUDICIAL REASONING As remarkably WINTEMUTE notes, it is the first time in history that the ECtHR addresses the question “of an obligation to grant an exemption from anti-discrimination legislation to religious individuals working, not for religious organizations, but for non-religious employers” 33 . In fact, invoking a “highly innovative arguments” 34 , Ms. Ladele and Mr.McFarlane sought to recast an anti-discrimination policy as itself discriminatory. I consider the WINTEMUTE’s analysis of this unique case law exceptionally illuminating. He illustrates the Strasbourg Court’s legal reasoning through the original “harm analysis”, according to which an accommodation should be possible if all the following three conditions are met: “(i) the particular manifestation of religious beliefs itself causes no direct harm to others; and (ii) the requested accommodation involves minimal cost, disruption or inconvenience to the accommodating party; and (iii) the requested accommodation will (upon further examination) cause no indirect harm to others”35. In this respect, WINTEMUTE persuasively maintains that Ms. Ladele and Mr. McFarlane cases fall in a specific excluded hypothesis, where “manifesting or accommodating the WINTEMUTE R., “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others”, The Modern Law Review Limited, (2014), 77(2) MLR, pag. 224. 34 MCCREA, ibidem, pag. 282. 35 WINTEMUTE R., ibidem, pag. 228. 33 belief causes direct or indirect harm to others, even if accommodation would involve minimal cost, disruption or inconvenience”36. In other words, the respondents could have (handily?) avoided any issue by rescheduled the employ internal organization. Without any notice to the external customers, bypassing any “indirect harm”, the employers could have secretly exempted the claimants from serving homosexual persons. A solution, has it has been evidenced in the proceedings, that others employers in England had already adopted. However, by undertaking a correct proportional test, the Court did not buy that argument. The prohibition of discriminatory treatment on ground of sexual orientation has proved to be an inflexible principle, an “overarching policy”37 which only exceptionally admits derogatory clauses. As a matter of human rights principles, a different solution would have legitimized a permanent exclusionary regime based on inherent human characteristics – that is segregation! SECTION 3: CONCLUSION As I underlined in the introduction, many scholars, journalists and the very United Kingdom Prime Minister have been commenting the ruling at stake. The majority applauded the decision, and welcomed it as a “Solomonic solution” 38 . Those who dissented suggested that the Court could have endorsed the same solution, with a more precise argumentation39. 36 WINTEMUTE R., ibidem, pag. 230. Eweida, par. 105. 38 Cambridge Journal of International and Comparative Law, “ECHR Chamber Judgment Eweida and Others v. United Kingdom: Between the freedom of religion and the prohibition of discrimination”, posted on 6th February 2013. 39 See MCCREA R., ibidem at pag. 291 where he criticized the Court’s use of the margin of appreciation argument regarding the second pair of applications: “Although the Chamber decision has effected a significant change in the Article 9 jurisprudence, the overall outcome is one that leaves Member States significant latitude to follow their own paths in regulating controversial matters of religious symbolism and the clash between religious freedom and anti-discrimination norms”; holds the same opinion PERONI L., ibidem: “When reading Ladele, I get a strong impression that the Court employs the margin to provide the shortest route to its intended destination – a finding of no violation – while concealing the normative reasons why it considered that outcome the best. Such use of the margin of appreciation – as a cloak to 37 In my opinion, the Eweida ruling presents two important virtues. In essence, this ruling has the praise to be revolutionary, in the sense that it clearly overruled some well-established but outdated reading of Art. 9 and 14 ECHR. But at the same, this sentence is way more important for a more relevant reason. Out of the caveats and the specifics of the cases, the sentence at stake draws a significant and outstanding architecture. By way of conclusion, hereby I elaborate my thought over the two peculiar characterizations above mentioned. Firstly: why Eweida is so revolutionary? That is easy to say for both the pairs of applications examined. Primary, in a time of predominant neoliberalism, it accords more weight to the individual human right rather than protecting the economic interests of a gigantic company. In the second couple of conjoined cases, the rulings assumed as a very uncontroversial principle that gays’ rights are something that cannot be restricted, not even in an indirect hypothesis, by discriminating conducts held for religious belief. That means no accommodation permitted at work for those who do not genuinely want, by truly faith, to endorse the sin of homosexuality. Few scholarship remarkably compared the mentioned outcome of the Court to the position of Rosa Perk, who famously did not want to leave her seat, even though she could easily find another one on the back of the bus40. Secondly: what kind of building did the Eweida decision draw? At the conclusion of my analysis I see a stable bridge, well balanced and solid. It connects lands which since centuries are facing each other from the distance, sometimes interacting through violent means: on the one hand the kingdom of Christianity, on the other the territory of sexual minorities. Underlying the European Court of Human Rights reasoning I see traced a reasonable interrelated web of human rights and limitations, freedoms and duties. The right to manifest one’s religious belief, in return to the freedom from discrimination on the ground of sexual orientation. The limitation for public concerns (health), and the duty to respect the others’ spiritual visual symbol (the cross). hide one’s real reasons under, rather than a necessary tool in the face of a failure of reason to provide an outcome – is unacceptable”. 40 See MCCREA R., pag. 283 and WINTEMUTE R., pag. 246. In this sense, the Court of Strasbourg is building a strong deal between opposite parties, observing the ancient conception of Justice, as a “constans et perpetua voluntas ius suum cuique tribuendi”41. 41 ULPIAN, Regularum. Bibliography - MAHER J., “Eweida and Others: a new era for article 9?” International and Comparative Law Quarterly, Volume 63, Issue 01, (2014), pp. 213 - 233 - Pearson M., “Article 9 at a Crossroads: Interference Before and After Eweida”, Human Rights Law Review, 13:3, 2013, Oxford University Press - MCCREA R., “Religion in the Workplace: Eweida and Others v United Kingdom”, The Modern Law Review Limited, (2014), 77(2) MLR, pag. 277–307 - WINTEMUTE R., “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others”, The Modern Law Review Limited, (2014), 77(2) MLR, pag. 223–253 - VENTURA M., “Law and Religion Issues in Strasbourg and Luxembourg: The Virtues of European Courts”, European University Institute, Conference Paper, (2011) - MCCRUDDEN C., PRECHAL S., “The Concepts of Equality and Non-Discrimination in Europe: A practical approach”, European Commission Directorate-General for Employment, Social Affairs and Equal Opportunities Unit G.2, 2009 - SANDERSON T., “Christian Bullies Press Their Advantage”, National Secular Society, 2006 - SANDERSON T., “BA needs defending from religious zealots, not the other way round”, National Secular Society, 2008 - PERONI L., “Eweida and Others v. the United Kingdom (Part I): Taking Freedom of Religion More Seriously”, The Strasbourg Observer, 2013 - MAHER J. “Proportionality analysis after Eweida and Others v. UK: Examining the Connections between Articles 9 and 10 of the ECHR”, Oxford Human Rights Hub, 2013 - ENGLISH R., “Strasbourg rules against UK on BA crucifix issue, but rejects three other religious rights challenges”, UK Human Rights Blog, 2013 - Cambridge Journal of International and Comparative Law, “ECHR Chamber Judgment Eweida and Others v. United Kingdom: Between the freedom of religion and the prohibition of discrimination”, posted on 6th February 2013 Cases ECtHR - Albert Grandrath v. The Federal Republic of Germany, no. 2299, Commission decision, 1967; - X. v. the United Kingdom, no 8160/78, Commission decision, 1981 - Pichon and Sajous v. France, no 49853/99, ECHR 2001 - Ahmad v United Kingdom, 1981 - Leyla Şahin v. Turkey, no. 44774/98, ECHR 2005; - Dogru v. France, no. 27058/05, ECHR 2009; - Lautsi and Others v. Italy, no. 30814/06, ECHR 2011; - Dahlab v Switzerland, no. 42392/98, ECHR 2001; - Refah Partisi v. Turkey, ECtHR (Grand Chamber), 2003 (ric. . 41340/98, 41342/98, 41343/98 and 41344/98) - Kokkinakis v Greece, No. 14307/88 ECHR 1993; - Dogru v France, no. 27058/05 ECHR 2009; - Metropolitan Church of Bessarabia and Others v Moldova, no. 45701/99 ECHR 2002; - Ahmet Arslan v Turkey, no. 41135/98, ECHR 2010; - Karaduman v Turkey, no. 16278/90, ECHR 1993; - Eweida and Others v United Kingdom, no. 48420/10, 59842/10, 51671/10, 36516/10, ECHR 2013; - Konttinen v. Finland, Commission’s decision of 3 December 1996; - Stedman v. the United Kingdom, no. 29107/95, Commission of 9 April 1997; - Smith and Grady v. UK, no. 33985/96 and 33986/96, 1997; - Schüth v Germany, no. 1620/03, ECHR 2010; - Pay v United Kingdom, no. 32792/05 (ECtHR); [2009] - Thlimmenos v Greece, no. 34369/97, ECHR 2000; - Case of 97 Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, para 134, ECHR 2007 - Metropolitan Church of Bessarabia and Others v. Moldova - Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, para. 47 - Association Les Témoins de Jehovah v. France, no. 8916/05, ECtHR 2011; - Cha’are Shalom Ve Tsedek v France, Application No 27417/95, Admissibility, 27 June 2000; - Jakobski v Poland, App no 18429/06, ECtHR, 7 December 2010 - Kosteski v. The Former Yugoslav Republic of Macedonia, no. 55170/00, ECHR 2006 Other Jurisdictions - R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL; - R v Secretary of State for Education and Employment and others ex parte Williamson and others [2005]; - Eweida v British Airways Plc [2010] EWCA Civ 80, [2010] ICR 890; - Chaplin v Royal Devon & Exeter NHS Foundation Trust [2010] UKET 1702886/09; - Ladele v Islington LBC [2009] EWCA Civ 1357, [2010] 1 WLR 955; - McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872; - Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567 - Syndicat Northcrest v Amselem, [2004] 2 SCR 551 EU Law - COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation Chapters from Books - Cultural Human Rights´, Francioni F., Scheinin M., 2008, chapter 4; Newspapers “Archbishop attacks BA cross rules” , 2006, BBC, http://news.bbc.co.uk/2/hi/uk_news/england/north_yorkshire/6166746.stm - “British Airways Christian employee Nadia Eweida wins case”, 2013, BBC, http://www.bbc.com/news/uk-21025332 - “Analysis: Milestone left in Christian-secular debate”, 2013, BBC, http://www.bbc.com/news/uk21037173 - “Christian discrimination claims heard by Europe court”, 2013, BBC, http://www.bbc.com/news/uk19467554 - “The cross”, 2105, BBC, http://www.bbc.co.uk/religion/religions/christianity/symbols/cross_1.shtml “Reinventing indirect discrimination”, 2014, The Employment Journal, http://www.lewissilkin.com/Journal/2012/September/Reinventing-indirect-discrimination.aspx - “The four Christians accusing their employers of discrimination”, The Telegrraph, 2013, http://www.telegraph.co.uk/news/religion/9519785/The-four-Christians-accusing-their-employers-ofdiscrimination.html