The Jean Monnet Program



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The Jean Monnet Program
Professor J.H.H.Weiler

European Union Jean Monnet Chair

Jean Monnet Working Paper 13/03


Lasia Bloß
European Law of Religion – organizational and institutional analysis of national systems and their implications for the future European Integration Process

NYU School of Law New York, NY 10012

All rights reserved.

No part of this paper may be reproduced in any form

without permission of the author.

ISSN 1087-2221

© Lasia Bloß 2003

New York University School of Law

New York, NY 10012

USA


European Law of Religion – organizational and institutional analysis of national systems and their implications for the future European Integration Process
by Lasia Bloß
Abstract:
The present study puts its main emphasis on the corporate element of the freedom of religion in the European context. The collective side of fundamental rights’ protection is often neglected in academic discussion, even though it has major impacts on the whole institutional shape of a given polity. It is not only touching upon the question whether an association should be allowed to be granted legal capacity in its own name and exercise rights and duties of its members as a separate legal person or in the function of an agent, but it is too a question of how a political entity chooses to accept or renounce repercussions due to different standards of how religion as a social phenomenon is established in a given societal context. This paper will analyze existing legal frameworks in four European Member States concerning the organization of state and church; within this approach state-church systems such as the Anglican Church in the United Kingdom, the principle of laïcité in France (with the current French controversy about legislation to ban religious symbols from public schools, as proposed by President Jacques Chirac on 17 December 2003) or the more cooperative-oriented systems in Spain and Germany appear to draw a highly differentiated picture of the European Union as a whole being divided into several major legal approaches in this arena. Yet, despite considerable differences in areas such as church tax or public education, a closer analysis allows to detect significant similarities too, especially regarding arising conflicts e.g. facing the increasing number of Muslim populations in each Member State.
Religious organizations and their secular equivalents as one major part of civil society can and will play a meaningful role for the future cohesion of the Union; religion as a social phenomenon, and not only because it is by definition an a-national feature not knowing frontiers in terms of nation states but claiming the one and only (ideological) truth beyond national boundaries, cannot and should not be underestimated – and this not only in perspective to an Osama Bin Laden and his Al’Qaeda or other fundamentalist groups justifying violation with their religious fanaticism, but rather because religion as a sociological feature determines life and values of peoples to a higher degree than politics often presumes. Henceforth, the paper dedicates one chapter to the role religion plays in Western European post-modernist societies by introducing the theoretical approach put forward by the sociologist Grace Davie. Furthermore, the ECHR-jurisprudence in the religious sector is analyzed throughout another chapter by outlining the sometimes rather contradictory decisions of the Strasbourg organs.
The European Union is facing major challenges, especially under the premise of the enlargement process towards the Central and Eastern European countries – each of them bringing their own culture and history – and their own way of acknowledging religion within their societies. However, the cornerstone has been laid down more than fifty years ago when the Council of Europe concluded the European Convention on Human Rights and Fundamental Freedoms as early as in 1950 – and included in Article 9 ECHR the freedom of religion as the common basis for all States being signatories of this human rights instrument, and so for the European Union Member States and the candidate countries too. The near future will show if and how the Union will be able to establish an own “corporate identity” including policy sectors such as culture and education which, up to date, have played only a minor role in the Brussels sphere by safeguarding domestic idiosyncrasies that shape national identities to be respected in accordance with Article 6 TEU.

Abbreviations



AO Abgabenordnung (tax law in Germany)

BVerfG Bundesverfassungsgericht (German Constitutional Court)

BVerwG Bundesverwaltungsgericht (German Federal Administrative Court)

CM (European) Commission

DG Directorate General

EC European Community

ECHR European Convention on Human Rights

ECHR Strasbourg European Court of Human Rights, Strasbourg

ECJ European Court of Justice

EKD Evangelische Kirche in Deutschland

EU European Union

GDR German Democratic Republic

GG Grundgesetz (Constitutional Treaty of Germany)

ICJ International Court of Justice

IGC Intergovernmental Conference

ISKCON International Society for Krishna Consciousness

LOLR Ley Orgánica de Libertad Religiosa (Spain, 1980)

NGO Non-governmental Organisation

TEC Treaty Establishing the European Communities

(Maastricht, later Amsterdam version)



TEU Treaty Establishing the European Union (Amsterdam)

UK United Kingdom

UN United Nations

WRV Weimarer Reichsverfassung (Weimar Constitution)






  1. Introduction





  2. Religion and law correlate primarily in the context of a state; however, the topic “religion and freedom of religion” expands widely beyond the scope of the domestic legal order and has been touching questions of international law for hundreds of years. Much less attention is paid to the European level, particularly to the EU legal order when it comes to religious issues. Approaching the subject from an analytical point of view, some preliminary remarks seem to be necessary: first, it has never been clear, i.e. uniformly agreed upon what the content of the terms “religion” or “freedom” actually encompasses. Therefore, the term “freedom of religion” can only be developed through specific prevailing circumstances – theologically, philosophically, and politically speaking – in a given time frame and a given social entity. Freedom of religion adopts a different connotation depending on the environment and the context that is taken into consideration. This is even more so when regarding non-religious communities which are covered by the same legal provision – the freedom of religion in its negative variant – often phrased with its German original term of “Weltanschauungsgemeinschaften” since the expression “Weltanschauung” is a genuinely German term deriving from German philosophy. It is nearly impossible to agree upon any sort of coherent content of what should be falling under the roof of this provision since the number of existing or possibly thinkable concepts of individual “Weltanschauungen” is probably limitless.



  3. Another unsolved question in the present context is the direction of the liability in terms of addressees – a question which is directed at a precise relation between a constituted polity and the Church as a generic entity. Who is obligated to grant resulting individual and collective rights, i.e. to protect this freedom? This question is answered differently according to the framework one is taking into consideration so that the final picture features various characteristics depending on whether the nation state is cooperating with the prevailing churches inside its territory (e.g. Germany) or whether there is a strict (at least formal) separation between the state and the church (e.g. France)1. Yet, how does, should or can the analogous picture be drawn for the European level? So far the typical interdependency between individual liberty and institutional relations on the national level2 does not find a corollary, i.e. an adequate equivalent in the framework of the TEC.



  4. Leaving this aspect apart, the freedom of religion and conscience evidently belongs to the broader debate about the evolution of the process called the “European constitutionalization” for which the codification of the Charter of Fundamental Rights finalized and officially proclaimed in December 2000 during the IGC in Nice was just one of the first steps – independently of whether or not one agrees with the thesis of Georg Jellinek claiming that the freedom of religion is the primary or original fundamental right3 ever.



  5. One last preliminary remark regarding sociological facts concerning the distribution of religion throughout Europe within the history of the EU: The pre-eminent influence of Christianity in Europe is beyond doubt. Similarly evident are the steady tendencies towards pluralism in the history of the Union – while the Six from 1957 were more or less coherently stamped by Catholicism, in 1973 the accession of the United Kingdom and Denmark and then in 1995 with Sweden and Finland added the reformative element. With the accession of Greece in 1981 the Union enlarged the Christian horizon towards the oriental orthodox branch of Christianity – a part that could be enlarged soon with the inclusion of Rumania and Bulgaria into the Union – one of the facets completely unstudied in the field of enlargement impacts. Tendencies of pluralization do not only occur inside Christianity but as well on the broader level; the Islam, for instance, has already to date become a constant in the social realities of European societies – and the recent discussion about the possible accession of Turkey to the EU has only added fuel to the fire4.



  6. In times when the individual as well as the community seem to undergo a new dimension of spiritual pathway, reinvigorated particularly after the atrocious attacks of September 11, 2001, religion and the quest, the longing for refuge in a higher instance, for the deeper sense of life, plays probably a more important role than before; yet, religious patterns have ever since mankind evolved in a societal framework played a pre-eminent role for the interrelations of people and peoples within a nation – as well as beyond. In this sense, religion can not only be characterized as one of the mirrors of humanity, but as well as one of the human stimuli – for bad or for good – which are, apparently, able to lead human beings to actions never thought of their realization be feasible in terms of ferocity – yet, not to draw a one-sided painting, as well in terms of benevolence and charity. Hence, religion forms an inherent part of the history of humanity ever since its genesis5 – in one sense or the other; even agnostics or atheists, Buddhists or followers of natural religions (e.g. some native African tribes) cannot be regarded as standing entirely and therefore independently outside this scope; hence, in this meaning one would probably paraphrase “religion” as one particular view of the world, as a concretized concept of ideology, as an individualized frame and sometimes detailed picture of Weltanschauung.6



  7. Thus, we do not need to analyze either the conundrum of the situation in the Middle East, more specifically, in Israel and Palestine, the persistent conflict between India and Pakistan about Kashmir, or the regime of an Osama Bin Laden together with the Taliban in Afghanistan and its underlying fanaticism to realize the overwhelming impact of religious matters for the community of mankind – in a rather small part of the world (cf. Jerusalem), a bigger nation state (cf. India and the recent confrontations and civil war-like street fights in villages in West India between Muslims and Hindus, or facing the subliminal powder keg at the border to Kashmir involving even the threat of use of nuclear weapons) or on the global level (cf. the universal threat of terrorism with its recent implementations). Even bearing in mind that the past century with its increasing tendencies of secularism and renunciation of the institution “Church” as such in many countries seemed to establish a new set of values being acknowledged by (post-) modern society as the superposed guiding principles which lead to happiness and self-fulfillment/self-realization, religious world views and religious origins of Weltbilder never vanished as deeply rooted characteristics of manhood. Linked to this issue of religious determinations of multiple couleur is the topic of the inherent potential for conflict regarding their claim of uniqueness, their allegation of being the one and only “right” representation of God/a higher instance on earth etc. – a pretension which is put forward by nearly every single religious community existing in the world, and especially so by the three large monotheistic religions Christianity, Islam, and Judaism.



  8. Rephrasing the drafted subject in legal terms: a variety of differing religious communities living in peaceful coexistence in one given administrative entity evokes inherently the question of providing a specific legal status to all of them, some of them or, radically, none of them. And, indeed, reality reflects this first sight statement: Regarding the structural systems existing within the relatively small part of the world, the continent of Europe, and even more specifically, within the European Union, one detects quickly that not all of the Member States, considered to be rooted on a shared cultural and historical heritage7, have established one coherent and persistent system of state-church-relationship while they all acknowledged the fundamental right of religious liberty8 within their proper constitutional contexts. In fact, taking France as the most extreme example of a system of separation of State and Church and juxtaposing this system with the United Kingdom9 where the Anglican Church is acknowledged as Established Church with the Queen holding both the highest representative position within the state and the highest symbolic position within the Anglican Church reveals only the two most fundamental possibilities of organizing the state-church-relationship – so to say the outer poles of the scale. Maintaining this scheme and moving towards the middle, to a kind of intermediate, temperate position, one finds several European Member States which decided to base their polity upon a mixture between those systems found in France respectively in Great Britain – a system of cooperation between the state and one or more of the larger churches existing in those entities. Among these nations stands Spain next to Germany, Italy, Luxembourg, or Belgium. They all voted, due to historical circumstances in their particular nation state, for a cooperative structure, not excluding the well-established majority church/es from the participation of the guidance of the state as such, but, on the other hand, not willing to preserve the determined de iure and de facto identity between state and church which prevailed for hundreds of years in European history before. Whereas Germany, for instance, laid down the theoretical principle of neutrality in religious matters in Article 140 Grundgesetz in connection with Article 137 (1) Weimarer Reichsverfassung: “Es besteht keine Staatskirche.” (“There is no State Church.”), Spain adopted in its relatively young Constitution from 1978 a sort of caveat, a proviso which grants special privileges to the Catholic Church in Spain, and, first and foremost, a closer cooperation with the state in comparison to every other religious community forming part of Spanish society.



  9. The Scandinavian countries, however, traditionally follow up to date a very peculiar way of dealing with religion within their statal entities; they have adopted – due to a factual majority since the Lutheran Reformation in the 16 century in Europe – an approach to acknowledge the Protestant Church as National Church, meaning that the state identifies itself with this Church and does not grant comparable privileges to other religious communities. Nonetheless, this traditional picture of Scandinavia slowly but surely undergoes a substantial change: some of the Nordic States have recently been adopting regimes which are supposed to render their domestic organizational structure more open and less rigid in terms of identification of the state with the Protestant Lutheran Church (cf. Sweden changed its public religious structure through a law enacted March 5, 1998 and entered into force January 1, 2000)th.



  10. Focusing upon concrete situations in which these varying European constellations may cause severe and not easy to solve legal problems on the level of protection of fundamental/human rights within the European Union10 one can highlight the following scenario:



  11. Imagine the following: a migrant worker from a little village in the north-western part of France wants to settle down in Greece near Thessalonica in order to work in a branch of his home company and live there together with his wife and their two children. Imagine further that this same migrant worker was, home in the Bretagne, engaged in a religious community which is acknowledged under the French legal system as an official legal entity, granted a minimum set of legal protection with a specific set of civil rights. Several members of this same religious community now want to establish a branch of their congregation in Greece and therefore apply for legal protection given that the status of being officially acknowledged comes along with particular legal and factual consequences within an administrative unit, e.g. fiscal authority, employment authority etc. However, its request is being rejected by the Greek agencies in charge since the Greek legal system within the domestic state-church organization in Greece does not provide an equivalent or comparable standard for (religious) institutions on the national level.



  12. Does this outlined situation disclose a legal discrimination in the light of the granting of a common basic level of fundamental rights protection – both in individual and in corporate terms – in the legal framework of the European Union? Does it affect the exercise of the free movement of persons under the regime of the EC-Treaty (TEC) being recognized as one of the elementary pillars of European integration and therefore unhide a fundamental gap in terms of individual restraints of rights which were supposed to be drafted, in their original conception, in favor of individual freedoms, flexibility and geographical mobility? Possibly, such a negative effect will be revealed only indirectly given that it creates a significant disincentive to move freely within the Member States of the EU while not discriminating overtly between domestic citizens and other European citizens.



  13. These are crucial issues since the broader discussion of fundamental rights is one of the major contentious subjects of the current larger debate touching upon the development of a “Constitution of Europe”11; furthermore, these legal domains directly touch upon the liberty of the European citizens living in societies considered to be the most liberal and “civilized” existing in the contemporaneous world – next to the United States that still serves as a comparator in terms of the model character of a Federal State vs. a Federation of States12.



  14. Enrobing the exemplified situation in a more abstract costume: taking any religious community potentially being rather small in number of members and therefore rather negligible in terms of representation of a specific societal group within a given national context, the discrimination might be simplified by evaluating that case as being only one out of zillion of minority drawbacks in democracies; but instancing the in fact huge religions in terms of membership such as Judaism or Islam, things are different and cannot be disregarded easily as a question of a minor and therefore quantitatively negligible societal group.



  15. The present study tries to immerse deeper into the spheres of questions concerning the legal protection of “corporate religions”, and, in its institutional dimension, questions of the differently shaped state-church-relationships existing within the Member States of the European Union under the perspective of the guarantee of fundamental rights – not only as a legal requirement in the national context, but as well under the roof of the European Union as a supranational institution exercising powers that can directly affect not only individuals but as well associations – claiming itself to have as its primary objective the establishment of “an ever closer union among the peoples of Europe”13. Exactly because the topic of collective protection of fundamental rights on the level of the Union has major significance for the overarching development of the Union as such, this paper chooses the following approach to tackle the factual discrepancies in the religious arena existing in the different EU Member States: The overarching objective of this paper is, by way of comparison, to uncover problems, to point a finger at potential legal clashes and predictable respectively already existing discriminatory situations, to raise and increase awareness in this field of societal discussion, especially of those people who work and, henceforth, shape the future institutional and legal framework of the European polity; in other words, to reveal a legal problem of crucial significance instead of presenting ready-made solutions for a well-known discussed issue.



  16. The case of the present research question incorporates a highly complex and multiply interwoven system of nationally grown idiosyncrasies and historically developed patterns of European state-church-relationships that will be presented in extracts in the course of this paper. This area of research cannot disregard the eminently significant and decisive impact resulting from history across the past centuries and the associated cultural choices that fundamentally determined and thoroughly shaped (and still nowadays continue to do so) one specific social entity.



  17. Referring to the British sociologist Grace Davie who introduced in her work “Religion in Britain since 1945: believing without belonging”14 the concept of the detachment of believers from their institutional anchors – the traditional as well as modern churches and other religious and non-religious communities – it is worthwhile to have a closer look at the underlying issues of why people got and get detached from existing organizational frameworks, why the demand for affiliation decreased over the last couple of decades, why people do not feel the necessity anymore to find shelter in regular events offered by churches and similar institutions such as the Sunday services etc. – put it in general terms: How come that people do not go to church as frequently as they used to do in the past? Can this feature be evaluated as an indicator for a general religious disinterest growing steadily or is this just one, amongst others, development of a complex social, economic and political vicissitude affecting churches as well as their secular equivalents such as political parties and trade unions? Sticking a little longer to the work of Grace Davie: in her recent book published in 200015 she deals with questions surrounding the separation of belief on the one hand and affiliation to a religious community on the other hand in greater depth coming to the conclusion that the view drawing a dividing line between the belief as such and the existence of an active membership in an institutionalized framework taken together with the engagement within this given structure goes too far. She introduces the term “vicarious religion” to illustrate that people constituting an active minority perform the function of exercising religion on behalf of the majority which is implicitly welcoming and approving the fact that the minority is acting for them, i.e. vicariously.



  18. Put it differently: the average European citizen does not regularly go to church, yet, is glad that the churches do exist. Davie characterizes this phenomenon is typically European – in contrast to the American approach where people do not understand what is meant by “vicarious religion”. The United States, put it simply, work on the basis of a capitalist market; pursuing this economic analogy a little further one could phrase it the following way: European churches work on the premise of public institutions. And we do need these public institutions; we expect them to be there, even if we do not make use of them frequently. The American society, in contrast, functions on a different premise: here, the concept of something being “vicarious” is unknown, even more so, it is perceived as being Un-American; American citizens either make use of the locally provided facilities or they regard them as being not necessary and, hence, in that case they would be rather inexistent.



  19. Now, how could one measure this somehow bizarre phenomenon of a “vicarious religion”? Since it is not possible to count it, Davie proposes to build up an intuition, exactly because this occurrence can not be empirically grasped. In the follow-up of this thought she puts forward an example which I find quite appealing and convincing:



  20. Something extraordinary happens, in this case in Sweden – a country being regarded as the one of the most secular societies within Europe or even on a world-wide scale – the ferry “Estonia” sinks in the Baltic Sea. And where do the Swedes seek refuge and comfort in midst of their mourning and grieving about this horrible event causing so many casualties? In their churches. They expect them to be there, open for their needs, embracing them in times of sorrow, welcoming them with open doors when they come to knock at those, they expect the archbishop to render an explanation for such dreadful incident – and he, on his part, was exactly expecting to fulfill this task too. On a more abstract level, this reflects a picture of a lived reality in which the balance between the broader public and the institution “church” is apparently functioning well, even if the Swedes do usually not go to church and do not, to a broad extent, subscribe themselves to any type of conventional Christian belief. What they, however, to an amazingly large degree do, is to pay church taxes – as so many other European citizens within their respective nation state do as well. Davie interprets this social fact as major indication for what she paraphrases with the term “vicarious religion”.16



  21. These considerations give me an incentive to draw two conclusions: on the one hand, there seems to be something typically European, a social phenomenon that Davie classifies as that specific minority-majority related division of function of the contemporaneous churches which is apparently not existing or at least not in the same manner in other parts of the world, and, secondly, even if it is true that there are specific characteristics within Europe and its history that shaped a lot of societal systems around the world or at least had a major impact on one or the other e.g. through the colonial history etc. one cannot conclude that every development having taken or taking place within the European continent is just the prototype for a global evolution in social terms, i.e. one should be aware of the fact that even if modernization in Europe is accompanied by a parallel stream of secularization this does not automatically implicate that this is true on a global scale too. Especially regarding the recent religious developments – even within the limited scope of Christianity – in the United States, in Latin America, in southern Africa, in South Korea, or in the Philippines one can find increasing indicators for growing religious activities in these parts of the world; this statement is even more valid when analyzing the Islam and its impacts on Muslim societies17.





  22. Potential Conflicts arising for churches and other religious denominations facing European law



  23. Approaching the sector “religion”

  24. Possible conflicts in religiously motivated areas are not restricted to the sector of labor and employment law, though, these are probably the most often quoted fields of law with a potential for clashes, i.e. with an immanent conflict of church internal competencies to set up their own regulations concerning their employees and Brussels-imposed regulations seeking to harmonize the economy of the Member States on a large scale basis. The freedom of religion as the center of individual, public, and even national interests – considered as being part of the state providing essential facilities – has its relevance next to its social and identification-creative as well as identification-supportive power in the whole field of application of the common European framework of services and in the general creation of a common European social reality. Examples of religiously relevant questions possibly causing legal problems are, among others, the following:

  25. Update of nationally granted privileges to religious denominations on the European level, equal treatment in the social sector (rhythm of work, religious holidays, religious education for the children of migrant workers etc.), applicability of directives concerning public construction commissions to churches, application of the European competition rules to (charitable) economic activities of churches/religious communities, consideration of religious communities in the composition of pluralistic organs in the framework of the organizational and institutional law of the European Union, the general question whether it would be appropriate to establish a broad exemption in the style of Article 137 (3) WRV in favor of an autonomous religious sector benefiting churches and other denominations – bearing in mind Declaration No 11 to the Amsterdam Treaty18 as an example to manifest the European will to grant a relatively large degree of autonomy to churches and their secular equivalents. Article 22 of the Charter of Fundamental Rights of the EU could be pointing into the same direction by stating in a rather general manner that “[T]he Union shall respect cultural, religious and linguistic diversity.”19

  26. Especially with regard to the objective side of the coin analyzing the freedom of religion as one of the crucial and most important fundamental rights20, its institutional and corporate content, it is of minor use to draw the reference to one or another national organizational system as a model to build thereupon an analogous framework between Church (in abstracto) and the European Union so to speak at the upgraded level. Such relegation is at the utmost capable of providing inspirations, theoretical models, of serving as a starting point to develop a proper co-operational regime on the European stage representing the new-to-develop and, hence, idiosyncratic European standard, and, thus, European character, – which is supposedly and has to or should be something different than the sum of the single national inputs, more than the lowest common denominator and eventually something new that has not been known before21. In demand is, hence, a new determination of the relationship between the European Union and the religious communities being in existence within her, respectively in her components, the Member States. Theoretically, this necessity of defining an ideological standpoint on the part of the supranational European institutions is justified by the anthropologically substantiated phenomenon of the well-consolidated religious desideratum as empirical social fact in the contemporary liberal societies throughout Europe. Nucleus and legal common denominator in the EU Member States is clearly the freedom of religion22 resulting in a positively recognizable content in terms of equality and human dignity in the sector of public services provided for by the state.23

  27. It was as early as in 1977 when Pernice24 called in his annotation to the Prais-judgment of the ECJ25 for a condign place granted to religious interests as a socially relevant factor, including an ex-ante protection of fundamental rights, in the general framework of the pluralism of involved interests; religion as a social fundament growing beyond the borders of the Nation State deserves – according to Pernice – a substantive recognition on the part of the European bodies as well, in addition to their recognition in the domestic legal systems. Furthermore, he pointed out that not only a consideration of religious interests in the scope of an “European law of religions” in material terms, yet, as well in institutional terms could be opportune for integration purposes, and, on the other side of the coin, there could arise new concepts, dimensions, and models of regulation for the international relations of the religious communities among themselves.26

  28. For a realistic examination of current legal developments in the field of religion or, broader speaking, in the field of public church law, it is indispensable in the first place to explore the phenomenon of religion itself, how it is perceived in a given society and which significance is attributed to it as a value determining people’s attitude towards life in general in a broad sense, and life in particular in its individualistic sense. In this context, it is important to be aware of the fact that religion refers to more than just one individual human being having a specific set of opinions or the expression of such opinions in a liturgical context since the way in which religion manifests itself in society is a complex sociological feature; religion has a major impact on culture, convictions, organizational structures, social relations and social behavior; it has social, educational, communicative, and institutional dimensions as well. In order to understand legal developments with regard to religion it is important also to see religion within these phenomena, in the way it is actually expressed in society, including its legal infrastructure. Many aspects remain implicit expressions of religion the transfer of which is undergone through mass media, education, charities, and voluntary work27.



  29. What, ultimately, is the function of the freedom of religion? In order to find a substantive answer to this question one has to look at the function/s of religion as such, i.e. rather ask the question: What is the function of religion? – instead of focusing on the legal component given that one can only detect an urge to create a legal protection for a social phenomenon in the case where the exercise of the feature as such is controversial or incorporates inherently a potential for conflicts.



  30. Liturgical and other explicit and visible expressions of religion occupy an important place in the relatively broad field of the guarantee of the freedom of religion, and, in legal discussions touching this area as well. This is not an astonishing phenomenon given that it is precisely these common manifestations that are most blatant. They do not, however, cover the whole of religion; they are “only” visible expressions of deeper convictions and insights. Religions’ objectives are, in the first place, to offer coherent patterns of worldviews, of values and norms, visions of humanity and its fate, visions and explanations of life and God(s); they concern ways of associating with others and of dealing with fundamental questions of philosophy, and provide ethical awareness and ideological approaches. Religious experience and celebration, expression and communication with others, take place in all sorts of socialization and communication processes. Guarantees of the freedom of religion and belief that leant too heavily towards one aspect of religion would deprive it of a great part of its importance and of its idiosyncrasy as being a multi-layered and diverse phenomenon available to every human being on this planet being free to choose an affiliation to a specific community or not.



  31. Religion and Law



  32. In (post-) modern times, religious inspiration and religious institutions have performed at least five functions in the international legal system; these functions may be described as creative, aspirations, didactic, custodial, and meditative. They can, and sometimes do, promote global order, just as religious animosity so frequently and dramatically seems to disrupt it.



  33. Religion and international law often appear to be congruent. They share elements of ritual, tradition, authority and universality28 that “connect the legal order of any given society with that society’s beliefs in an ultimate transcendent reality”.29 At the same time, these four elements give sanctity to legal values and thereby reinforce people’s legal emotions: the sense of rights and duties, the claim to an impartial hearing, the aversion to inconsistency in the application of rules, the desire for equality of treatment, the very feeling of fidelity to law and its correlative, the repulsion of illegality.



  34. Law is not only a bare, inanimate body of rules; it is people legislating, adjudicating, administering, negotiating – it is a living process of allocating rights and duties and thereby resolving conflicts and creating channels of cooperation. And religion is not only a set of doctrines and exercises; it is people manifesting a collective concern for the ultimate meaning and purpose of life, in individual as well as in abstract terms, – it is a shared intuition of and commitment to transcendent values, it is celebrating in community an internal feeling of adoration to an upper instance, it is the free choice of people being devoted to a common set of values about life and death.



  35. As ethical systems, both law and religion address the global order in a profound manner; both are concerned with the manner in which societies accept and organize the world and universe around them.30



  36. Religion is thus more than adherence to a set of intellectual beliefs and the manifestation of these beliefs through certain rituals like, e.g., Sunday morning services in the Christian churches or the equivalent ceremonies in other congregations; religion is an image of social reality. It is linked to thought, to action; it influences our view on humanity and on the world as a whole; it influences culture and our concept of freedom itself. Religion regarded as a social phenomenon is thence not restricted to the “private sphere” but has a mirror in the broader societal context. This is realized in most Western European countries – in contrast, for instance, to the legal situation in the United States (despite the fact that even there the First Amendment cannot be considered as establishing a strict and rigid separation of church and state31) where religion is thoroughly treated as being a private matter only – and demonstrated in the creation of certain legal mechanisms, in enabling participation in public systems of mass media, in education systems (religion as subject taught in public schools), in incorporation in public services, in chaplaincy services, in the system of public holidays (the Sunday as legal holiday being the most prominent example), and in building facilities as well as monumental protection laws.





  37. The Freedom of Religion in Europe





  38. Some common features of the church-state systems in Western Europe which, nonetheless, create or at least potentially create difficult questions – once coming to the European level since their peculiarities in the implementation can vary to a certain degree – are:





  • Freedom of worship, individually and collectively;

  • A certain degree of church autonomy (in systems with established churches, at least for the non-established churches);

  • State facilitated (financed) chaplaincy services in public institutions;

  • Financial relief in the form of direct support and/or tax relieves;

  • Participation and/or representation in mass media and school systems;

  • Support on an equal basis in the cultural and social realm, such as in the case of ancient church monuments and social care.32





  1. The freedom of religion as a collective right33





  2. In general terms, analyzing the corporate aspect of fundamental rights can be much more revealing than its counterpart, the often centered approach to concentrate on individual rights’ protection. The supporting arguments for this conclusion are the following: corporations as part of society have to be granted legal institutes in order to be constituted – the legal order, hence, is forced to provide for theoretical frameworks in order to allow an accumulation of people to form some sort of federation or association – and these social groups have to be put subsequently into the position to be able to exercise rights on their behalf, obtain legal personality in their own name. It is exactly the how of granting a specific scope, the width of this scope, and the details incorporated by this scope which tell us something important about a given society, about its perception of how people should be living, interacting and working together, of how a balance is supposed to be achieved between individualism and communitarianism. The freedom of religion (and conscience) is in this context only one example of how a fundamental right – which is in the present case usually perceived as being essential for the inner world of an individual system of belief, of (transcendent) world views linked with a specific way of articulating this system via services, worshipping, prayers, etc. – is put into practice, how its content is substantiated and transformed into real life. Many religious communities carry out noteworthy social functions – they educate, baptize, marry, and bury people, they resolve disputes and run hospitals as well as retirement homes, they offer all sorts of social activities for specific groups in society, they engage in fund raising and support different types of charities etc. They therefore form an integral part of the complex network of society, and their elimination would create a vacancy that is not easily replaceable.



  3. Looking first at the jurisprudence developed on the European level and articulated by the Strasbourg organs, the jurisdictional body of the Council of Europe which set out for the first time in European history a common catalogue of fundamental rights throughout the continent in 195334 – before coming back to the sphere of the European Union.



  4. Legal status of religious communities under the ECHR



  5. The Strasbourg Commission had initially taken the view that applications from religious organizations were per se inadmissible35. Since Article 9 ECHR only protected individual interests in religious liberty, collective entities could a priori not be victims for the purposes of Article 34 ECHR36. In the subsequent jurisprudence delivered by the Strasbourg jurisdictional organs, however, this position was changed, but the reasoning provided for allowing applications by religious communities remains ambiguous up to date: “a church body is capable of possessing and exercising the rights contained in Article 9 (1) in its own capacity as a representative of its members”. This formula reappears at regular intervals, yet, it indicates that the association simply represents the common individual interests of its members, so to say as sum of its components.



  6. In cases involving religious property, for example, the collective element is inevitable, since such property is usually held by a religious organization as a legal person, or on trust for religious purposes. Thus, in the Holy Monasteries case37 there was no question that the applicants were the monasteries as corporate bodies themselves. In Serbo-Greek Orthodox Church in Vienna v. Austria38, which concerned the occupation of church premises in the aftermath of a church schism, the Commission accepted that the victim was the Church itself, and not the particular priests who would have been the beneficiaries of the tenancy agreement at issue.



  7. In ISKCON v. United Kingdom39 the reasoning of the Commission shows that it considered the primary victim of planning constraints on Bhaktivedanta Manor to be the International Society for Krishna Consciousness, and not the individual priests who applied at the same time as well. The distinction between individual and collective religious liberty at the admissibility stage would be trivial enough were it not for the fact that in some admissibility decisions the Commission has relied on the existence of breaches of individual liberty to deny standing to an association. Exactly this occurred in the recent Scientology decision40, in which the Commission reaffirmed a strand in the Strasbourg case-law stating that “a corporate applicant cannot claim to be itself a victim of measures alleged to have interfered with the Convention rights of its individual members”. Where an association claimed to represent its members, it had to identify them and demonstrate it had received specific instructions from each of them, as their agent. In other cases, though, the Commission has shown much more flexibility. Hence, in Hautaniemi v. Sweden, which concerned the right of a Finnish-speaking congregation in the Church of Sweden to use a liturgy of the Finnish Lutheran Church, the Commission accepted that both the parish and the minister were victims; thus, the fact that the minister was a victim himself did not prevent the congregation’s own right to apply.



  8. The Commission’s refusal to treat an application alleging a breach of Article 9 ECHR in Kustannus v. Finland is an explicit example of a failure to recognize collective religious liberty. In this case, the Finnish Freethinkers’ Association had established a limited liability company to carry out its publishing and distribution function. The Association remained a majority shareholder in the new company. The company maintained that it had a humanist and atheist ethos, and that the provision under Finnish law that only individuals could be exempt from paying church tax on religious grounds was a breach of its Convention rights. While it is unquestioned that individuals required to pay church tax against their conscience enjoy the protection of Article 9 ECHR the Commission held that the association in question could not benefit from the protection of Article 9 because it was not a religious community and not a non-profit organization. But, why should not a group of like-minded people form a commercial company and seek to operate it according to their (and thus the organization’s) corporate ethos?



  9. However, perhaps the most conspicuous example of a Strasbourg-denial of collective religious liberty is the recent decision in Serif v. Greece41. Serif claimed to be the elected and true chief mufti of Rodopi in Thrace, in opposition to the government-appointed chief mufti42. He was convicted of various criminal offences including the usurpation of the functions of a minister of a known religion. In his defense, he argued that this was a breach of his religious liberty and that of the Muslim community in Thrace which had elected him as their chief mufti. The Greek government’s response was that in law the chief mufti was government-appointed and therefore, no fault had been committed. The ECHR accepted that Serif’s religious liberty was infringed, and approached the problem by asking whether his conviction was necessary in a democratic society. They held that, since allegations of his performing administrative functions (such as conducting weddings) were unsubstantiated, the only ground for his conviction was his wearing the clothes traditionally associated with the office, and issuing messages of spiritual guidance and encouragement. Even if he were not chief mufti, to convict somebody in those circumstances would be an unjustifiable breach of his freedom of religion; in short, people have a positive right under the ECHR to pretend to be clergy if they wish to do so.



  10. Unfortunately, the reasoning in Serif misses the point entirely. The issue at the core of the dispute in question was rather, who had the right in Greek law to appoint the chief mufti of Rodopi, and then, regardless of Greek domestic law, whether the Muslim community had the right under the European Convention collectively to elect their spiritual leader if they so wished. The Court ducked that central issue – central at least in terms of analyzing the corporate element of the fundamental right in question – completely.43



  11. The Structure of the Corporate Religious Liberty



  12. Collective or, corporate religious liberty is not simply an aggregation of individual members’ interests, i.e. the sum of totaled individual liberty rights. Rather, it is the set of rights, immunities, privileges, and powers held by a religious association, or its non-confessional equivalent, as such. Collective religious liberty in this sense is the liberty of a community of people sharing a common religious faith to organize themselves and structure their corporate life according to their own ethical and religious precepts.

  13. Religious communities as ordinary legal associations



  14. If collective liberty is to be recognized at all, religious communities must, at least, be able to take the form of legal associations, whether incorporated or unincorporated. They must be able to benefit from all powers that legal persons usually enjoy – such as owning property, trading for the purposes of the organization, employing people, suing and being sued etc. Problems concerning the legal status of a church, in the case to be presented hereafter, the Catholic Church in Greece, arose in the case Canea Catholic Church v. Greece44. Here, the Catholic Church was in dispute with neighbors over the demolition of a party wall and the construction of a window overlooking its property. The Court of Appeal and the Court of Cassation denied the Church a remedy on the grounds that it failed to fulfill the formalities for acquiring legal personality under Greek domestic law. The European Court held that, in the light of the long-standing judicial and administrative practice assuming that the Catholic Church had legal personality without formal registration, there had been a breach of Article 6 ECHR, and that any requirement that the Catholic Church register forthwith would be unreasonable as it might imply that the Church lacked legal personality before the date of incorporation. Given that the Church in question had existed since 1879, and the diocese of Crete since 1213, the ECHR could not see any plausible reason for the fact that in 1996 the Greek Catholic Church still did not enjoy a precise legal status.



  15. A number of interesting issues were raised by the Canea case. First of all, there was considerable disagreement about whether the case fell under Article 9 or Article 6 ECHR. A majority of the Commission went for Article 9 on the grounds that the ability to protect property associated with a manifestation of religion was a means of exercising the right to freedom of religion. Since there existed a possibility of acquitting legal personality under Greek law, there was no breach of Article 9 per se, but the insistence that the Catholic Church should now fulfill those formalities was, in the circumstances, discriminatory and a breach of Article 14 in connection with Article 9 ECHR.



  16. While one can accept the general point about the relevance of Article 9 to the acquisition of legal personality and civil rights by religious associations, this case was an ordinary property dispute between two neighbors, and the minority view in the Commission, subsequently adopted by the Court, that this was more properly an issue of civil rights is probably to be preferred.



  17. Another interesting issue at hand was the question whether the failure to recognize the Catholic Church as having public law (as distinct from private law) personality was discriminatory. Although, in general, the Commission and Court are prepared to accept that established majority churches may have special rights and privileges without finding a per se discrimination, in Greece the relatively small Jewish community also enjoys public law status. Both the Commission and the Court took the view that Catholicism was one of three principal and long-standing forms of religious belief in Greece, and that the position of the Catholic Church as the only one being neglected a public law status was thus anomalous. However, the Court would go no further than “noting” this fact, and explicitly left the choice of legal form for the Catholic Church open.45 Hence, no explicit title has been established by the Strasbourg jurisprudence granting a right to claim public law status to an association wanting to have its organizational structure to be protected by law – grounding its claim on a European legal base, after having exhausted available domestic legal remedies that did not grant the desired legal protection.



  18. The outcome in this case demonstrates once again that the European jurisdictional organs do not dare to cross a specific borderline avoiding risking the following of the national courts and agencies – even though their judgments have a significant impact and do shape and help to develop a proper European standard of rights and obligations.46



  19. Exemptions from the general law



  20. Recognizing religious liberty as a specific fundamental and constitutional right requires exemptions from the application of the general law to accommodate religious belief and practice. This does not mean that exemptions must always be granted, whenever religious interest is raised, because there will be times when society will want to insist on certain standards regardless of their incompatibility with some minority religious practice and in so doing set priorities of how a social phenomenon is to be treated in the general framework of societal forces, in the community trying to strike a balance between individual and collective forces as a mirror of how values are perceived and of how ethics are lived on the moral level of that given society. This middle path approach of granting exemptions from the general law unless “necessary in a democratic society” for the protection of certain important interests is exemplified by the structure of Article 9 ECHR with its paragraph 2 stipulating that “[F]reedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” As Weiler puts it in more abstract terms: “Another way of describing the play of the ECHR in this context is to say that it defines the margin within which States may opt for different fundamental balances between government and individuals. It defines the area within which fundamental boundaries may be drawn.”47



  21. Transfer from the level of the ECHR to the level of the EU



  22. It is exactly this process of striking a balance – or more precisely the space necessary for the creation of such a balance – that is essential on the level of the European Union, too. This necessity arises as soon as fundamental rights issues are involved since these imply so to speak automatically a borderline between competing social values as an expression of a compromise in a given polity. Yet, these basic questions do not only arise on the national level having to deal with citizens and their respective national public authorities, but as well on the supranational level of the European Union taking decisions and effecting policies which are reflected on the individuals in each Member State. If the EU forms a polity on its own, if we are ready and willing to consider this alliance as having an own “corporate identity” then we have to acknowledge too that such a borderline has to be struck on that supranational level as an expression of its own, proper set of values as well. This procedure of determining a European borderline in matters of fundamental rights’ protection is an already ongoing process, having started with the jurisprudence of the ECJ in the late sixties of the past century48 and being put explicitly on the agenda of an IGC in December 2001 in Nice when the Heads of States and Governments were asked to give the Charter of Fundamental Rights of the European Union a place in the framework of the Treaties – which was eventually circumvented by “only” issuing a solemn political declaration while renouncing any legal effects of this newly drafted document49 – and this process has to continue and will inevitably continue. This is probably the most visible expression of giving the Union an own face, of epitomizing its proper values, of incarnating its substance – even if there is a multitude of disagreements of precisely how such an incarnation should look like, and even if the drawing of the borderline is a much more complicated issue on the European level than it already is on the national levels – since a simple copying of one of the existing schemes is neither possible nor desirable50, and since the greater the number of states involved, the greater the scale of well-established differences will be so that the finding of a European standard – if it is not supposed to be the lowest common denominator – is perhaps the most difficult task for the people and institutions involved in the years to come.



  23. The following, in character analytical chapter will be highlighting four selected State-Church systems existing in the present EU – whereby the choice is not accidental, but done with the objective to cover the most extreme examples of organizational structures – France, Spain, Germany, and the United Kingdom – as representatives of categories, i.e. generic systems. The aim is to accentuate substantial discrepancies and their reflections on the level of corporations – as well as detecting similarities – especially in cases of conflicts or collisions of social interests such as the wearing of a headscarf by Muslim women which aroused public, academic, and judicial debate in several European Member States (cf. infra). That followed, I will outline a brief summary of the disclosed observations in the final chapter concluding that religion as social phenomenon cannot and should not be underestimated on the part of the supranational European institutions, and that legal differences create at least the potential for social as well as legal conflicts – which is then the point where we are in the mid of the debate of how to strike a borderline in terms of fundamental rights’ protection as a European matter with a European mirror reflecting its own “corporate identity”.





  24. State-church-relationships in Europe51



  25. France





  26. To lead off with one of the most extreme countries in terms of organization of state and church: France with its constitutional principle of laïcité. The French Republic nowadays remains a majority Catholic country, though the statistics are considerably less convincing than they were in the immediate post-war period.



  27. Contrary to the other European countries being member of the European Union, France established in Article 2 of the Constitution dating from 4 October 1958 the principle of separation of church and state (laïcité)52. Having said this, it is first of all necessary to draw the distinction between laïcité in its philosophical or ideological sense and its juridical sense. Whereas the first notion depends heavily on political and/or ideological interests involved, the second term can basically be reduced to the neutrality of the state in religious matters, more broadly speaking its self-commitment to the principle of secularism/neutrality. Public services are secularized, religious denominations enjoy legal equality and the principle of non-discrimination applies among individuals in terms of their beliefs. Moreover, the strict neutrality in the educational sector of primary schools is assured (cf. Preamble of the Constitution of 1946 via reference in the Preamble of the Constitution of 1958). Finally, the State has no right to get involved in the internal functioning and organization of religious denominations as soon as those matters cover religious practices or questions of belief.



  28. The French Government does not keep official statistics on religious affiliation. The vast majority of the population is nominally Roman Catholic, although many Catholics do not practice their faith actively53. Muslims are the second largest group in number (ca. 3.000.000). According to various estimates, about 6% of the country’s citizens are unaffiliated; Protestants account for 2%; and the Buddhist population accounts for 1 percent. Jehovah’s Witnesses claim that 250,000 persons attend their services either regularly or periodically. Orthodox Christians number between 80,000 and 100,000; the vast majority of these persons are associated with the Greek or Russian Orthodox Churches. The Jewish community residing in France numbers between 600,000 and 700,000 persons (approximately 1 percent).



  29. The principle of equality in religious affairs is explicitly stated in Article 2 of the Constitution thereby implying the precept of non-discrimination between individuals, and between individuals and the administration. This principle is as well reflected in the relationship between the State and the corporate religious denominations; yet, the general statement that French law in the religious arena is essentially directed at the regulation of individuals in the framework of the private sphere remains certainly undisputed54.



  30. The regime of cults in France is diverse and complex whereby two larger categories can be regrouped – on the one hand those communities recognized by the State, on the other hand those existing in a strict separation to the State. The former are notably characterized by an organizational status in the sector of public law whereas the latter can usually be ranged in the field of private law. Distinguishing even one step further, one can draw a legal division between general law and local laws.



  31. General Law



  32. The general law is basically applicable throughout the whole French territory and finds its main source in the statute enacted on December 9, 1905 stipulating freedom of conscience and religion and placing the religious denominations into a structural framework whereby strictly prohibiting any form of public funding respectively other subsidies – this being an exception to the general rule applicable to all other sorts of associations in France which may well receive all forms of public financial support on the part of the state.



  33. Religious groups must apply with the local prefecture to be recognized as an association of worship and therefore receive tax-exempt status under the 1905 statute. The prefecture, upon reviewing the documentation supplied regarding the association’s purpose for existence, can grant that status. In order to qualify, the purpose of the group must be solely the practice of some form of religious ritual. Printing publications, employing a board president, or running a school can disqualify a group from receiving tax-exempt status. Religious groups usually use both of the categories « associations cultuelles » (associations which are exempt from taxes)55 and « associations culturelles » (cultural associations which are not exempt from taxes); the Church of Jesus Christ of Latter-Day Saints, for example, runs strictly religious activities through its association of worship and operates a school under its cultural association. The Government currently does not, for instance, recognize Jehovah’s Witnesses or the Church of Scientology as fulfilling the requirements for a religious association, and therefore subjects them to a 60% tax on all funds they receive.



  34. Local laws



  35. In the field of local laws one has to differentiate between laws deriving from private law, hence, the 1905 law of separation, from public law, hence, recognized denominations, and finally those religious groups being established under private law, yet not falling under the statute of December 1905.


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