Towards a ‘Common Law’ on Religion in the European Union

Abstract

The development of the European Union (EU), in both composition and competence, has led to an expansion in the volume of its laws and other regulatory instruments dealing with religion. So much so that scholars are increasingly today talking about ‘EU law on religion’ as a distinct legal category. This study proposes that a juridical approach provides a concrete insight into the posture of the EU towards religion. The study examines a wide range of legal sources, including treaties (among which the Lisbon Treaty is significant), directives, decisions and case-law as they touch directly or indirectly on religion. From all these sources it is evident that key religious phenomena are now formally known to EU law – religious associations, beliefs, rules, teaching, rites and authorities. It is suggested that underlying its legal instruments seem to be eight key principles at work in the approach of the EU to religion: the value of religion; cooperation with religion; religious freedom; religious autonomy; religious equality; special protection for religion; and the concept of religious privilege. In turn, however, the study asks whether these accurately represent the general principles of law on religion common to member states of the EU.

Acknowledgment

I am grateful to my colleagues Russell Sandberg and Mark Hill, at the Centre for Law and Religion, Law School, Cardiff University, for helpful comments on a draft of this piece, and to Charlotte Dyer at Cardiff Law School for invaluable assistance with the referencing.

Notes

1 There seem to be three broad phases: 1957–ca 1975, a general absence of norms on religion; 1976–1992, the side-effects of economic law on religion and the emergence of interest in religion (exemplified in, for example, Prais v Council of Ministers (C-130/75) 61975J0130); 1992–2007, from Maastricht to Lisbon, characterised by a growing body of substantive norms (actual and proposed) on religion. The following suggests that the next period might involve a more rigorous and critical understanding and articulation of the ‘general principles of community law’ on religion in member states of the Union.

2 Robbers (2004, p. 312): ‘the fundamental principles of European law on religion’ include regionality, neutrality, equality. See also Ventura (2001) and Davie (2000).

3 Treaty of Rome, Article 215(2); also (Lisbon) draft EU Reform Treaty 2007, Art. 6.2: rights in the ECHR result from constitutional traditions common to member states as general principles of EU law.

4 Though the ECHR, a creation of the Council of Europe, is not formally part of EU law, it has strong persuasive authority, and it has been ratified unilaterally by member states of the EU.

5 Insofar as religious laws fundamentally condition the claims which religions make upon the member states and in turn the EU itself and their responses to religion.

6 TEU retains its title; TEC becomes the Treaty on the Functioning of the European Union (TFEU).

7 European Union Reform Treaty (EURT) 2007, referred to in some sources as the Lisbon Treaty, Art. 1. See also Art. 2: the EU values are: respect for human dignity, freedom, democracy, equality, rule of law, human rights and minorities’ rights; these values are common to member states in a society in which pluralism, non-discrimination, justice, solidarity and sexual equality are pursued.

8 EURT, Art. 15b (amending TEC); this repeats draft Constitution 2004 Art. 52.3.

9 Preamble: ‘Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity’.

10 Directive 2006/123/EC, Preamble, para. 40.

11 Directive 77/388/EEC: tax exemptions may be enjoyed as to ‘supplies of staff by religious or philosophical institutions for medical, welfare, child protection and educational purposes with a view to spiritual welfare’; also Regulation EC 1781/2006, Art. 18 for exemptions for organisations carrying out non-profit charitable, religious and cultural purposes.

12 Eman v College van Burgemeester en Wethouders van den Haag (C-300/04) [2007] 1 CMLR 4, celex reference 62004J0300, Opinion of Advocate General Tizzano, Case C-145/04, celex reference 62004C0145, para. 79.

13 Council Decision 1982/2006/EC.

14 See also draft Constitution 2004, Art. 82; but EURT, Art. 3 refers only to ‘cultural and linguistic diversity’.

15 See Robbers (2004, p. 314) for argument in favour of neutrality.

16 Decision 2006/320, Art. 22, OJ 2006 L118/9 at 13.

17 Decision 1982/2006/EC, OJ 2006 L412/1 at 24; see also Common Position 2006/795/CFSP.

18 Decision 1983/2006, Preamble (European Year of Intercultural Dialogue): EU enlargement, increased mobility in a single market, old and new migratory flows, exchanges with the rest of the world through trade, education, leisure and globalisation in general, is increasing interaction between peoples, cultures, languages, ethnic groups and religions in Europe and beyond.

19 Decision 2006/971.

20 Decision 771/2006, Art. 2 (on the basis of 2000/78/EC).

21 Directive 2004/83/EC, Art. 10(b).

22 Regulation EC 562/2006, Art. 6 (Schengen Borders Code).

23 Common Position 2005/304, Art. 11: in dealing with conflict prevention, management and resolution in Africa, the EU must evaluate possible cooperation at national and international levels, ‘to address the problem of the relationship between the radicalisation of religious groups and their vulnerability to terrorist recruitment, in a conflict prevention and peace building perspective’.

24 Kokkinakis v Greece, 260-A Eur. Ct. H.R. (ser. A) (1993): ‘Freedom of thought, conscience and religion, is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism, indissociable from a democratic society, which has been dearly won over the centuries, depends on it’.

25 UK: Neville Estates v Madden[1962] Ch. 852.

26 Charta Oecumenica (2001, III.7): the alliance commits itself ‘to seek agreement … on the substance and goals of our social responsibility, and to represent in concert … the concerns and visions of the churches vis-à-vis the secular European institutions; to defend basic values against infringements of every kind; to resist any attempt to misuse religion and the church for ethnic or nationalist purposes'.

27 Treaty of Amsterdam 1997, Appendix: Declaration on the Status of Churches and Non-Confessional Organisations.

28 For a discussion of this see Duffar (2006).

29 EURT, Art. 15b.1; see also Art. 15b.2 (Art. 52.2 of the draft Constitution 2004): ‘The Union equally respects the status under national law of philosophical and non-confessional organisations’.

30 It merely protects rights of states to determine the legal position of religious organisations.

31 Declaration on the Status of Mount Athos 1979 (on Art. 105 of the Hellenic Constitution).

32 Commission of European Communities v Italy, C-260-04 celex reference 62004J0260, para. 35; see also the Placanica case, C-338/04 celex reference 62004J0338 and Commission of European Communities v Greece, C-65/05 celex reference 62005J0065; and EFTA Surveillance Authority Decision 336/94 celex reference 61994J0336: decision-making in member states as to the administration of amusement machine operations may not be justified on religious grounds alone.

33 Steymann Case 196/87 [1988] ECR 6159 (under Art. 2 EC), celex reference 61987J0196.

34 SPUC v Grogan Case C-159/90 [1991] ECR 4685, celex reference 61990J0159.

35 Torfaen BC v B&Q plc Case 145/88 [1989] ECR 3851, celex reference 61988J0145.

36 UK v Council of Ministers Case C-84/94 [1996] ECR I-5755, celex reference 61994J0084.

37 Darby v Sweden (1990) 187 ECtHR; Dődsbo v Sweden, Application No. 61564/00, 17/01/06.

38 Refah Partisi (Welfare Party) v Turkey (2003) 37 EHRR 1, Application numbers 41340/98; 41342/98; 41343/98; 41344/98: ‘The court has frequently emphasised the state's role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony, and tolerance in a democratic society. It also considers that the state's duty of neutrality and impartiality is incompatible with any power on the state's part to assess the legitimacy of religious belief and that it requires the state to ensure neutral tolerance between opposing groups.’

39 Directive 71/305/EEC, Art. 2; Directive 92/456/EEC Annex 1 (i.e. ‘church councils’ in Belgium); see also Directive 2004/18/EC.

40 Regulation 3911/92, Annex, Art. 1.2.

41 Common Customs Tariff 1999/L 278/1 at 508.

42 Regulation EC 1982/2003, Annex 1(f).

43 Decision 771/2006, Preamble (2).

44 Council Joint Action 2007/106/CFSP, Art. 3(e).

45 Directive 2006/97/EC: on the accession of Bulgaria and Romania.

46 Council Decision 2006/35/EC, OJ 2006 L22/34 at 37; for Turkey, see Oktem (2002).

47 Regulation 1889/2006, Art. 2.1(b)(iii).

48 See also EURT, Art. 136a for promoting the role of the social partners at EU level and dialogue between them; Art. 17b: the right to petition EU institutions (also Art. 22, Charter of Fundamental Rights); and Art. 8b: EU institutions shall give ‘representative associations’ the opportunity to make known and publicly exchange their views in all areas of Union action; maintain an open, transparent and regular dialogue with these; and consult them. Under Art. 256a, the Economic and Social Committee consists of representatives of civil society organisations (including cultural ones).

49 Declaration No. 23; see also Commission Communication on Fostering the Role of Associations and Foundations in Europe COM/97/0241, celex reference 51998IP0203; see also the Commission discussion paper Building a Stronger Partnership, COM (2000) 11. In 1999, under President Romano Prodi, one section of the European Commission's Group of Policy Advisers was assigned the task of ‘dialogue with religions, churches and humanisms’.

50 Opinion of the Economic and Social Committee on the Role and Contribution of Civil Society Organisations on the Building of Europe 1999/C 329/10, CES 851/99 D/GW 1999/C 329/10.

51 European Governance: a White Paper COM (2001) 428, 2001/C 287/01.

52 These include the Church and Society Commission of the Conference of European Churches, the Catholic European Study and Information Centre, the European Humanist Federation, and the Centre Européen Juif d'Information: http://www.europa.eu.int/comm/civil_society/connecs/index.htm

53 Decision 1983/2006, Preamble: see above note 18.

54 Decision 2005/85/EC (implementing Art. 13 Treaty of Rome).

55 Community Regulation EC 168/2007.

56 Council Joint Action 2007/113, Art. 3(1)(d).

57 Regulation 113/2002.

58 Regulation EC 1905/2006, Art. 24; see also Regulation EC 625/2004.

59 Council Regulation (Euratom) 300/2007, Art. 7(2).

60 Regulation 1638/2006, Art. 14(1)(h)(viii).

61 Regulation EC 1717/2006, Art. 10(2).

62 England and Wales: Sharing of Church Buildings Act 1969, s.1.

63 For example, the Church and Nation Committee of the Church of Scotland consults with the Scottish Parliament.

64 It has an office in Brussels for its Church and Society Commission. The Commission has working groups on EU legislation. There are 126 churches and 43 organisations in CEC, including the Church of England, the Church of Denmark, the Church of Finland, the Netherlands Council of Churches, the Council of Protestant Churches of Portugal, the Lutheran Church of Slovakia and the EKD. CEC is ‘an ecumenical fellowship of churches in Europe which confess the Lord Jesus Christ as God and Saviour according to the Scriptures and seek to fulfil together their common calling to the glory of the one God, Father, Son and Holy Spirit’ (Constitution). See also (for example) the European Network of Health Care Chaplaincy.

65 Charter, Art. 10. See also draft Constitution 2004, Art. 70.1: same wording as Art. 9 ECHR.

66 Charter, Articles: 7 (privacy and family life); 8 (data protection); 9 (marriage and the family); 11 (expression); 12 (association); 13 (the arts and academic freedom); 14 (education including religion); 17 (property); 21 (discrimination); 23 (gender equality); 24 (children); 25 (the elderly and their right to participate in social and cultural life) and 26 (disability): all potentially concern religion.

67 Prais v Council of Ministers, C-130/75 [1976] ECR 1589, celex reference 61975J0130: while the law on community officials (1968) forbade religious discrimination, it was held that scheduling an examination on a Friday in the case of a Jewish candidate was not in breach of freedom of religion.

68 Directive 2004/113/EC, Preamble (3).

69 Corrigendum to Directive 2004/58/EC, Preamble (32); see also Decision 2004/513.

70 Regulation EC 562/2006, Annex I(d) (in accordance with Art. 251 of the Treaty of Rome).

71 Decision 2004/676/EC, Art. 36.

72 Decision 2004/579: OJ 2004 L261/69 at 76.

73 Council Framework Decision 2005/214, Preamble (5).

74 Council Framework Decision 2006/783, 13 (in accordance with Art. 6 of the Treaty on European Union and Chapter VI of the Charter of Fundamental Rights).

75 Agreement, OJ 2007 L129/2, Art. 1(4).

76 Agreement between the European Community and the Russian Federation on Readmission, OJ 2007 L129/40; see also Directive 2005/85/EC, Art. 27(1).

77 Common Position on Nigeria, 2002/401.

78 Regulation 1889/2006, Art. 2.1(b)(iii).

79 Council Decision 2006/35/EC, OJ 2006 L22/34 at 37,38.

80 In view of the proposal for the EU to accede to the ECHR. Currently, Art. 6.2 of the EURT states that the EU ‘shall respect fundamental rights, as guaranteed by the European Convention … but does not provide for accession’; the ECJ ruled out EC accession in 1994 on the grounds that the Community lacked competence to become a party to the ECHR.

81 It appears in most member state constitutions: Robbers (2005) and Sandberg and Doe (2007a).

82 Human Rights Act 1998, s.13.

83 Art. 15b repeats the draft Constitution 2004, Art. 52.

84 Council Decision 2006/35/EC, OJ L22/34 at 38.

85 Decision 2006/57/EC, OJ 2006 L35/57 at 60.

86 See for example the Horizon College case C-434/05, celex reference 62005J0434.

87 Council Common Position 2007/140.

88 Common Resolution 2005/440/CFSP.

89 Common Position 2005/888/CFSP.

90 Common Position 2004/852.

91 Directive 2000/78/EC, Art. 4(1).

92 Directive 2000/78/EC, Art. 4(2): also: ‘This difference of treatment shall be implemented taking account of member states' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground’.

93 Directive 2000/78/EC, Art. 4(2). For criticism of this (as a description of a rule rather than a rule) see Rivers (2004, p. 285).

94 Directive 93/104/EC, Art. 17.

95 Directive 2001/88/EC, Preamble (1).

96 Previously, under Directive 74/577/EEC, Art. 4, national provisions relating to ritual slaughter were exempted from the European requirement to stun before slaughter.

97 Directive 93/119/EEC.

98 Directive 93/119/EEC.

99 Directive 83/90/EEC.

100 Corrigendum to Regulation EC 853/2004, Ch. IV, 7(a); see also C321 E/314 (Protocol No. 33. (1997)) on animal welfare: ‘while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’.

101 Regulation 1347/2000, Art. 40.

102 Regulation 3201/90, Art. 10(1).

103 Regulation 3201/90, Art. 10(2): however, the terms Kosher wine, Passover kosher wine, Kosher wine for Passover and their translations may appear without this restriction (in Art. 10(2)) provided that the rule in Art. 10(1) on recommendation of acceptability of use for religious purposes is satisfied.

104 Directive 95/46/EC; see Robbers (1994).

105 For example Art. 44.2.5, Constitution of Ireland: ‘Every religious organisation shall have the right to manage its own affairs’; Belgian Constitution, Art. 21; German Constitution, Art. 137.

106 For example Church of Scotland Act 1921.

107 For example, in the field of internal discipline, see the Roman Catholic Code of Canon Law (1983) c.1311: ‘The Church has an innate and proper right to coerce offending members of the Christian faithful by means of penal sanctions’; see also Van der Vyver (2001), p. 645.

108 See also EURT (TEC), Art. 10; and draft Constitution 2004, Arts 81, 118.

109 Treaty of Rome (Nice Version), Art. 13: ‘the Council, acting … on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.

110 Decision 1672/2006, Preamble (8); see Directive 2000/78.

111 Mangold v Helm, C-144/04, celex reference 62004J0144; see also Commission of European Communities v Federal Republic of Germany, C-43/05, celex reference 62005J0043: the case concerns the failure to transpose Directive 2000/78 into German law.

112 Palacios de la Villa v Cortefeil Servicios SA, C-411/05, celex reference 62005J0411; for discrimination and religion, see also Chacon Navas v Eurest Colectividades SA, C-13/05, celex reference 62005J0013; El Youssfi v Office National de Pension C-276/06 celex reference 62006O0276.

113 Decision 2006/971.

114 Decision 2006/EC, Preamble (15) and Introduction to Guidelines for Cohesion Policy.

115 Regulation 1974/2006, Annex II, para. 15.2.

116 Decision 2002/621/EC (Personnel Selection Office).

117 Decision 2004/676/EC, Art. 5.

118 Directive 2005/71/EC, Preamble (4); see also Recommendation 2005/251/EC.

119 Directive 2004/114/EC; see also Directive 2004/38/EC.

120 Corrigendum to Directive 2004/58/EC, Preamble (32).

121 Regulation (EC) 1905/2006, Art. 5(2).

122 Council Regulation 1083/2006, Preamble (30) and Art. 16; see also Regulation 1080/2006.

123 Council Regulation EC 1698/2005, Art. 8.

124 Regulation (EC) 1929/2006, Art. 7.

125 Regulation 1889/2006, Art. 2.1(b)(iii).

126 Decision 1855/2006, Art. 12(d).

127 Decision 1719/2006, Art. 2(3).

128 Decision 771/2006, Art. 2 (on the basis of 2000/78/EC).

129 Decision 771/2006, Art. 4.

130 ECHR, Art. 14: ‘The enjoyment of [Convention] rights and freedoms … shall be secured without discrimination on any ground such as … religion’; and Art. 1, Protocol 12. Also: Moscow Branch of the Salvation Army v Russia, App. No. 72881/01, E.Ct.H.R. 5/10/06: on registration of religious bodies.

131 For example: Germany, Constitution, Art. 136; Italy, Constitution, Art. 8.

132 See also draft Constitution 2004, Art. 70.2.

133 See also draft Constitution 2004, Art. 74.3.

134 Directive 89/104/EEC, Art. 3(2)(b).

135 Directive 89/552/EEC (amended by 97/36/EC), Art. 11(5).

136 Directive 2000/31/EC, Art. 3(4)(a).

137 Decision 2004/676/EC, Art. 32.

138 Decision 2004/535. For a challenge to and judicial consideration of the directive, see European Parliament v Council of the European Union, C-317/04, celex reference 62004J0317.

139 Decision 2002/187, Art. 15(4).

140 Regulation 3911/92, Annex, Art. 1.2.

141 Directive 93/7/EEC.

142 Council Joint Action 2006/304, OJ 2006 L112/19 at 19 (in Kosovo).

143 Decision 2006/56: conditions for EU partnership with Serbia and Montenegro.

144 Regulation EC 1210/2003, Art. 3 and Annex II.

145 Regulation EC 1829/2003, Preamble (22), Arts 5 and 13.

146 Regulation EC 2000/2005; see also Regulation 393/2005; Regulation 1254/199, Art. 33.

147 Freedom of expression and religion includes the right of religious groups to establish and run their own press; there is a right to freedom of expression in both public and private broadcasting.

148 Directive 2001/85/EC, Annex 1, para. 1.3.2.

149 Directive 77/388/EEC.

150 Council Decision 2006/35/EC, OJ 2006 L22/34 at 37.

151 Directive 2003/88/EC, Art. 17(1)(c). See also Dallas v Premiere Ministre, C-14/04, celex reference 62004J0014, on Directive 93/104 (on derogations for workers officiating at religious ceremonies).

152 Directive 76/207/EEC, Art. 2(2).

153 Directive 2001/29/EC, Art. 5(3)(c) and (g).

154 Directive 2002/14/EC, Art. 3(2).

155 Regulation EC 1781/2006, Art. 18.

156 Iglesia Bautista and Ortega Moratilla v Spain (1992) 72 DR 256 Application Number 17522/90: preferential tax treatment to the Catholic Church over other churches (in this case Baptist) was justifiable by reference to its special responsibilities (for example, providing public access to its monuments) under a concordat.

157 Road Traffic Act 1988, s.16.

158 Criminal Justice Act 1988, s.139.

159 Oaths Act 1978, s.1.

160 Abortion Act 1967, s.4.

161 Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994.

162 Local Government Finance Act 1988, s.51, Sched. 5, para. 11.

163 There is some artificiality in these, particularly the distinction between the principle of special protection and that of religious privilege: the latter is a species of the former; and both may be illustrations of the value of religion principle. There may also be inconsistencies between them: religious privilege is difficult to reconcile with the equality principle.

164 The work of the European Consortium for Church and State is invaluable in this regard.