El Majjaoui and Stichting Touba Moskee v. the Netherlands (dec.)

Information Note on the Court’s case-law No. 83

February 2006

El Majjaoui and Stichting Touba Moskee v. the Netherlands (dec.) - 25525/03

Decision 14.2.2006 [Section III]

Article 9

Article 9-1

Freedom of religion

Refusal of work permit to prospective imam: admissible

Facts: The first applicant is a Moroccan national and the second applicant is a foundation with legal personality under the law of the Netherlands, where it operates a mosque. In 1999 the foundation applied for a work permit allowing it to appoint the first applicant as its imam. In 2000 the General Directors of the Employment Services Authority refused such a permit. Since the job vacancy had not been reported, it had to be assumed that an adequate supply of priority labour (i.e. European Union or European Economic Area nationals, or others with equivalent status as regards residence and the right to work, possessing the requisite qualifications) existed. In addition, it had not been shown that the first applicant would earn the statutory minimum wage and that the foundation had made sufficient efforts to fill the position by advertising the position in the local and national press. In his objection to the refusal the first applicant argued that he had been admitted to the Netherlands already in November 1998, so that section 8 (1)(d) of the Foreign Nationals (Employment) Act did not apply to him, and that it was well known that there was a dearth of imams in the Netherlands. The General Directors upheld their refusal in 2001 as the foundation had not investigated the labour market at the time when the application for a work permit had been made, and as the vacant position had not been reported to the Employment Services Organisation at least five weeks before the date of the application. The first applicant had been admitted to the country to work as a teacher of religion, not as an imam, and although the applicants had submitted a draft contract of employment naming a sufficient monthly wage it was not stated that this wage would be linked to the statutory index. The information supplied by the applicants as to the alleged shortage of suitably qualified persons on the Netherlands and European Union labour markets was not persuasive. Finally, two training establishments for imams existed in the Netherlands and it had not been shown that the second applicant had tried to recruit its imam from one of these. The first applicant appealed to a regional court. The foundation, intervening as a “third party” with an interest in the decision, stated that already in September or October 1999 it had made unsuccessful attempts to find a suitable imam through the Labour Exchange. Given the unreasonable length of time taken up by the proceedings and in the absence of any other candidate for the position, the first applicant had in the meantime started work as the imam of the second applicant's mosque, and was functioning to the satisfaction of all concerned. In its decision the regional court upheld the findings of the General Directors. As to Article 9, the court found that any interference that might have occurred was prescribed by law and necessary in a democratic society for the protection of public order – an expression construed by the court as encompassing the labour market.

The applicants each lodged appeals with the Council of State, alleging inter alia that the regional court had erred in finding that the vacancy for a qualified imam had not been duly reported to the Employment Services Organisation. The Council of State found that the applicants had not corroborated with documentary evidence their allegation that the second applicant had sought to find a suitably qualified imam prior to lodging the application for a work permit, nor had they shown sufficient diligence in trying to find priority labour available on the labour market to fill the vacancy. The applicants' statement that it would have been pointless for the second applicant to approach the one remaining training institute for imams operating in the Netherlands was also found to be unsubstantiated. Article 9 could not be construed as entitling a religious community to employ a foreign national as a teacher and minister of religion who did not meet statutory requirements set for the purpose of preserving peace and public order: admissible.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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