Community law ; Principles - Fundamental rights - German basic law - Freedom of religion - Equal access to the civil service - Jobs in public education - Required qualifications - Personal incapacity on the grounds of the Islamic veil in the classroom - Illegality of the denial due to lack of a legal basis

In its judgement of 24 September 2003, the Bundesverfassungsgericht ruled that in the absence of any legal basis, the refusal to admit a teacher to a public-service position solely on the grounds that she intended to wear an Islamic headscarf in the classroom undermined both the right to equal access to public-service positions enshrined in Article 33(2) and (3) of the German Constitution (Grundgesetz, hereafter referred to as the "GG"), and the individual in question's freedom of religion enshrined in Article 4(1) and (2) of the GG.

In the case in question, the appellant had taken legal action against the ruling by the competent authorities in the federal state of Baden-Wurttemberg after being refused a position as a teacher in a state school. She had been refused the position on the grounds of lack of personal aptitude linked to the wearing of an Islamic headscarf, which she had refused to remove. Both the Stuttgart Administrative Court and the Federal Administrative Court confirmed that the decision to refuse her a position was legal based on the duty of the State to remain neutral.

In its reasons for the ruling, the Constitutional Court explained the link between, on the one hand, equal access to public-service positions regardless of an individual's faith and, on the other, the duty of the State as regards education, the right of parents to choose their children's education and the so-called "negative" freedom of religion for school pupils.

While civil servants who had already been awarded posts no longer enjoyed the same fundamental freedoms as individuals, the State must respect said freedoms in relation to admission to public-service positions. Aptitude criteria pertaining to a duty of service (Dienstpflicht) on the part of a civil servant not to display external and visible signs of religious faith undermined the freedom of religion unless justified by other constitutional principles and expressed in accordance with legal requirements.

The candidate's right to freedom of religion conflicted, on the one hand, with the duty of the State as regards education pertaining to the principle of neutrality and, on the other, with the right of parents to choose their children's education and with the supposedly "negative" freedom of religion of school pupils who may be disturbed by the wearing of the headscarf as a religious symbol and as a demonstration of the practising of a person's religion: the State's duty to remain neutral – a duty which also applies in state schools – prohibits the authorities from identifying directly with any religion via either self-imposed or externally imposed measures. In this respect, the court highlighted the distinction between, on the one hand, the use of religious symbols required by the authorities such as a crucifix in a classroom and, on the other, personal decisions by individual teachers such as the wearing of a headscarf, the latter not being a requirement imposed by the State. In the court's view, the religious and ideological neutrality of the State did not imply a strict division between Church and State, but rather the adoption by the State of a position which is open to and supportive of the freedom to practice any religion and at the same time recognises the value of increasing religious diversity in teaching tolerance. Accordingly, in the view of the Bundesverfassungsgericht, the State's duty to remain neutral did not in and of itself require the wearing of headscarves to be banned.

The European Court of Justice did not rule out that the wearing of a headscarf by a female teacher might infringe the rights of parents to choose their children's education, in accordance with the right to distance children from beliefs deemed to be erroneous or harmful; this right, though, is limited by the degree of authority of the State in the field of education. The supposedly "negative" freedom of religion for school pupils which entails the freedom not to be exposed to the practice of a religion they do not share might also be affected. However, the European Court of Justice did not issue a verdict on the substance of the case but argued that the ban on the wearing of a headscarf presupposed legislative intervention. The principle of legality of administrative action, based on the principle of general legality and the principle of democracy required that the elected legislator legislate on key decisions such as rules governing the exercising of and limitations to fundamental rights. The abstract risk of potential disputes was not, by contrast, sufficient grounds on which the administration could ban the wearing of headscarves, all the more so since the significance and the effects of wearing a headscarf were the subject of vigorous debate in Germany. The mere fact that such disputes could not be ruled out did not entitle the administration to oblige female teachers to refrain from wearing headscarves in school since this was considered as practicing one's religion. Neither were the general rules set out in civil service legislation adequate to justify a restriction on fundamental freedoms. The European Court of Justice therefore ruled that it was the responsibility of the regional legislators in the individual federal states to reach an appropriate compromise between the constitutional principles in question, since said legislators had sole jurisdiction in educational matters. Accordingly, the regional parliaments may elect to ban the wearing of headscarves if they so wish.

The Bundesverfassungsgericht therefore set aside the judgement by the Federal Administrative Court on the grounds that it had no legal basis. The decision was taken by five votes to three.

In the publishing of their dissenting opinions (Sondervotum), the three judges called for a solution on the substance of the question regarding the scope of the State's duty to remain neutral within public institutions. They classified the headscarf as a clear religious symbol representing a vision of the world which depicted women as being subservient to men, a concept which was incompatible with the neutrality of the State. In their view, candidates for public-service positions were governed by the same rules as civil servants who, as representatives of public authority, had their public freedoms restricted and must themselves guarantee said rights to pupils and their parents. Accordingly, the ruling on a candidate's aptitude would not infringe the freedom of religion. They therefore concluded that no legal basis was required in respect of service obligations regarding the wearing of a headscarf.

Following the ruling by the European Court of Justice, the issue remained controversial in the various federal states: seven of the 16 issued a legal ban on the wearing of headscarves, including Baden-Württemberg, which was the first to table an actual bill on the matter.

DE - Grundgesetz, Art. 1 Abs. 1, 2 Abs. 1, 3 Abs. 1 und 3 Satz 1, 4 Abs. 1 und 2, und 33 Abs. 2 und 3

Landesbeamtengesetz Baden Württemberg (LBG), Paragraph 11 Abs. 1