Churches and European Law

8/13/2019 Churches and European Law

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THE CHURCHES AND EUROPEAN LAW

Background

European Commission President Jacques Delors (in office 1985-1995) recognised that ith

further enlargement and e!pansion of E" as a political union rather than merel# as a tradingor economic association there needed to $e further discussion as to the o%erall direction andconceptual meaning of the &European Pro'ect *he idea of a common European identit# andthe place of religion ere central to this discussion+ and since the 198,s there has $een anofficial dialogue $eteen the European "nion and the Churches as ell as ith otherreligious $odies scientific and cultural organisations

The failed Consiuional Trea!

*he ill-fated and unratified &*reat# esta$lishing a Constitution for Europe hich died after itsre'ection $# .rench and Dutch %oters in /a# and June 0,,5 contained no e!plicit referenceeither to od or to Christianit# in the main $od# of the te!t $ut its Pream$le referred to religionin its %er# first sentence2

D3467 67P634*67 from the cultural religious and humanist inheritance ofEurope from hich ha%e de%eloped the uni%ersal %alues of the in%iola$le andinaliena$le rights of the human person freedom democrac# equalit# and the rule ofla:

A similar reference to the spiritual and moral heritage is made in the Charter of

.undamental 3ights of the European "nionsigned $# the mem$er states in 0,,,:

Conscious of its spiritual and moral heritage, the Union is founded on the

indivisible, universal values of human dignity, freedom, equality and solidarity;

it is based on the principles of democracy and the rule of law. It places the

individual at the heart of its activities, by establishing the citizenship of theUnion and by creating an area of freedom, security and justice.

4rticle 6-50 of the Constitutional *reat# then ent on to treat the status of churches and ofnon-confessional organisations in an e%en-handed a#2

1 *he "nion respects and does not pre'udice the status under national la ofchurches and religious associations or communities in the /em$er tates

0 *he "nion equall# respects the status under national la of philosophical and non-confessional organisations

; 3ecognising their identit# and their specific contri$ution the "nion shall maintainan open transparent and regular dialogue ith these churches and organisations

*he Chairman of the drafting Con%ention Estaing had deli$eratel# left theissue of the place of religion open hen he drafted the document in%iting a petition for theinclusion of some religious reference &6 ha%e chosen not to insert the reference to theChristian heritage in the constitution he as reported as sa#ing &3ather 6 appeal to #ou topersuade me of its necessit#16n response opinions ere di%ided2 the o%ernment of Polandas strongl# in fa%our of some specific reference to Christianit# hile .rance ith a centur#of lacit $ehind it as opposed *he 3oman Catholic Commission of the ?ishops>Conferences of the European "nion (C/ECE) suggested that

14m$rose E%ans-Pritchard2 &1m Christians sign E" religion plea Daily Telegraph(@ondon 05 7o%em$er0,,A)
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Bat a prominent place in the centre $eteen the cultural and the humanistinheritance the religious inheritance of Europe forms a source of inspiration for theentire Constitutional *reat#0

?# maing reference to the religious inheritance of Europe argued C/ECE the Treatyimplicitl# accepted the predominant contri$ution made $# Christianit# to the Europe of toda#

and an e!plicit mention of od or of Christianit# ould ha%e $een a strong signal supportingthe identit# of Europe /oreo%er

Bas a matter of historical fact it is Christianit# and the Christian message that ha%e$uilt the &inheritance of Europe from hich ha%e de%eloped the uni%ersal %alues ofthe in%iola$le and inaliena$le rights of the human person democrac# equalit# andthe rule of la *he Pream$le does state that these %alues ha%e deri%ed from thereligious inheritance *he Constitutional *reat# dras its inspiration from specifictraditions that ha%e shaped Europe thus implicitl# referring to the centre of thistradition hich is Christianit#;

The Trea! of Lis"on

*he successor to the failed Constitutional *reat# as the *reat# of @is$onhich amends thepre%ious 4rticle to recognise &the rights freedoms and principles set out in the Charter of.undamental 3ights of F Decem$er 0,,, and states that

4rticle 1, shall $e replaced $# the folloing2 G6n defining and implementing its policiesand acti%ities the "nion shall aim to com$at discrimination $ased on se! racial orethnic origin religion or $elief disa$ilit# age or se!ual orientationH

.inall# 4rticle 1, (.reedom of thought conscience and religion) of the E" Charter of

.undamental 3ights states that2

1 E%er#one has the right to freedom of thought conscience and religion *his rightincludes freedom to change religion or $elief and freedom either alone or in

communit# ith others and in pu$lic or in pri%ate to manifest religion or $elief inorship teaching practice and o$ser%ance

0 *he right to conscientious o$'ection is recognised in accordance ith the nationallas go%erning the e!ercise of this right

The EU Treaies as a#ended "! Lis"on

*he consolidated %ersions of the *reat# on European "nion and the *reat# on the functioningof the European "nion as amended $# the @is$on *reat# $egin as follos2

I6 /4JE* *IE K67 . *IE ?E@647 Bet al:

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1 *he institutions shall $# appropriate means gi%e citiLens and representati%eassociations the opportunit# to mae non and pu$licl# e!change their %ies in allareas of "nion action

0 *he institutions shall maintain an open transparent and regular dialogue ithrepresentati%e associations and ci%il societ#

; *he European Commission shall carr# out $road consultations ith partiesconcerned in order to ensure that the "nion>s actions are coherent and transparent

4rticle 1F of *itle 66 of the consolidated %ersion of the *reat# on the .unctioning of theEuropean "nion as amended e!plicitl# introduces the idea of a dialogue $eteen Europeaninstitutions and religions churches and &communities of con%iction2

1 *he "nion respects and does not pre'udice the status under national la ofchurches and religious associations or communities in the /em$er tates

0 *he "nion equall# respects the status under national la of philosophical and non-confessional organisations

; 3ecognising their identit# and their specific contri$ution the "nion shall maintainan open transparent and regular dialogue ith these churches and organisations

6t is 4rticle 1F of *itle 66 that pro%ides a constitutional $asis for formal consultations+ and on itse$site the European Commissions ?ureau of Polic# 4d%iserscharacterises the consultationprocess lie this2

o pen2 an#one ho ishes to tae part in the dialogue can do so *he Commission

does not ha%e the poer to define M either on a national or European le%el M therelationship $eteen the tate and churches religious communities and philosophicaland non-confessional organisations *he European Commission therefore accepts asdialogue partners all organisations that are recognised $# the /em$er tates as

churches religious communities or communities of con%iction

o *ransparent2 e%er#one should ha%e the right to no at an# time ho is in%ol%ed in

the dialogue 6ts o$'ecti%es and results should also $e clear *he aim of this site is tomae the dialogue more transparent and to pro%ide information a$out related e%ents

o 3egular2 the European Commission maintains an ongoing dialogue ith its partners

at %arious le%els in the form of $ilateral meetings or specific e%ents *he Commissionalso has regular $ilateral e!changes ith partners at their request and e%ents areorganised regularl# ithin the frameor of the dialogue

The Charer of $unda#enal Righs of he Euro%ean Union

4rticle 1, of the Charter of .undamental 3ightsof the European "nion signed in 0,,,protects freedom of thought conscience and religion2

1 E%er#one has the right to freedom of thought conscience and religion *his rightincludes freedom to change religion or $elief and freedom either alone or incommunit# ith others and in pu$lic or in pri%ate to manifest religion or $elief inorship teaching practice and o$ser%ance

0 *he right to conscientious o$'ection is recognised in accordance ith the nationallas go%erning the e!ercise of this right

6n addition the Pream$le states that the Charter

reaffirms ith due regard for the poers and tass of the Communit# and the "nionand the principle of su$sidiarit# the rights as the# result in particular from the
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constitutional traditions and international o$ligations common to the /em$er tatesthe *reat# on European "nion the Communit# *reaties the European Con%ention forthe Protection of Iuman 3ights and .undamental .reedoms the ocial Chartersadopted $# the Communit# and $# the Council of Europe and the case-la of theCourt of Justice of the European Communities and of the European Court of Iuman3ights

The Euro%ean Con&enion on Hu#an Righs 'ECHR(

*he European Con%ention on Iuman 3ights (ECI3) (formall# the Convention for theProtection of Human Rights and undamental reedoms) entered into force on ; eptem$er195; 4ll Council of Europe mem$er states are part# to the Con%ention *he Con%entionesta$lished the European Court of Iuman 3ights and initiall# a Commission hich as toact as a filter for complaints 6nitiall# though there as a right of indi%idual petition totras$ourg after the claimant had e!hausted domestic remedies the domestic courts erenot themsel%es o$liged necessaril# to tae account of tras$ourg 'urisprudence M though the#increasingl# did so as a matter of choice 4ll the Contracting tates ith the e!ceptions of6reland and 7ora# ha%e incorporated the Con%ention into their on la2 the "nitedKingdom did so in the Iuman 3ights 4ct 1998

6ncreasingl# the ECtI3 ad'udicates on issues of freedom of religion and of moralit#particularl# in relation to 4rticle 8 (right to respect for pri%ate and famil# life) and 4rticle 9(freedom of thought conscience and religion) M hich states that

1 E%er#one has the right to freedom of thought conscience and religion+ this rightincludes freedom to change his religion or $elief and freedom either alone or incommunit# ith others and in pu$lic or pri%ate to manifest his religion or $elief inorship teaching practice and o$ser%ance

0 .reedom to manifest one>s religion or $eliefs shall $e su$'ect onl# to suchlimitations as are prescri$ed $# la and are necessar# in a democratic societ# in theinterests of pu$lic safet# for the protection of pu$lic order health or morals or for the

protection of the rights and freedoms of others

*hree recent cases ha%e highlighted the a# in hich the Court in%ol%es itself in issues ofmoralit# or religion2

o 6n !autsi v "taly the econd ection ruled that displa#ing crucifi!es in state schools

as contrar# to 4rticle 0 of Protocol 7o 1 (education) and 4rticle 9 (thoughtconscience and religion) *his e%oed a shoced reaction from the 6taliano%ernment hich appealed to the rand Cham$er ral argument as heard on ;,June and a 'udgment is e!pected some time in 0,11

o 6n#chal$ and %opf v &ustriathe .irst ection held $# four %otes to three that the fact

that same-se! couples in 4ustria do not ha%e the same rights as married couples

does not constitute unlaful discrimination under 4rticle 8 $ecause the legal status ofsame-se! relationships remains a matter ithin the &margin of appreciation accordedto mem$er statesAhen the complaint as originall# lodged the applicants had noaccess to an alternati%e registration s#stem+ $ut that situation as remedied as from1 Januar# 0,1, Iad it not $een for that fact hoe%er the 'udgment might ha%e $eenrather different n ;, 7o%em$er 0,1, lea%e to appeal to the rand Cham$er asrefused M hich means that the 'udgment is final

o 6n &' ( ) C v "reland the las on termination of pregnanc# ere challenged as

%iolating 4rticles 8 (pri%ate and famil# life) 1; (effecti%e remed#) and 1A(discrimination) ECI3 Judgment as deli%ered on 1 Decem$er 0,1, *he rand

4*he &margin of appreciation is &an area of discretionar# 'udgment hich is &$ased on the fact that

national authorities are in a $etter position than an international tri$unal to 'udge hat is necessar#under local conditions2 Da%id .eldman: Civil !iberties and Human Rights in England and *ales (0,,00nd ed !ford) at 5F
http://conventions.coe.int/treaty/en/Treaties/Html/005.htmhttp://conventions.coe.int/treaty/en/Treaties/Html/005.htmhttp://www.bailii.org/eu/cases/ECHR/2009/1901.htmlhttp://www.bailii.org/eu/cases/ECHR/2009/1901.htmlhttp://www.bailii.org/eu/cases/ECHR/2010/995.htmlhttp://www.bailii.org/eu/cases/ECHR/2010/995.htmlhttp://cmiskp.echr.coe.int/tkp197/view.asp?item=14&portal=hbkm&action=html&highlight=&sessionid=63604451&skin=hudoc-enhttp://cmiskp.echr.coe.int/tkp197/view.asp?item=14&portal=hbkm&action=html&highlight=&sessionid=63604451&skin=hudoc-enhttp://conventions.coe.int/treaty/en/Treaties/Html/005.htmhttp://www.bailii.org/eu/cases/ECHR/2009/1901.htmlhttp://www.bailii.org/eu/cases/ECHR/2010/995.htmlhttp://cmiskp.echr.coe.int/tkp197/view.asp?item=14&portal=hbkm&action=html&highlight=&sessionid=63604451&skin=hudoc-en


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Cham$er unanimousl# dismissed the 6rish o%ernments o$'ection that the first andsecond applicants had failed to e!haust domestic remedies and declared theapplicants complaints admissi$le *he Court held $# ele%en %otes to si! that asregards the first and second applicants there had $een no %iolation of 4rticle 8 or of4rticle 1; taen in con'unction ith 4rticle 8 Ioe%er as regards the third applicanta @ithuanian national resident in 6reland ho as suffering from a rare from of cancer

the Court held unanimousl# that her rights under 4rticle 8 had $een %iolated Io thisill impact on the de%elopment of the la in 6reland (and for that matter in 7orthern6reland to hich the 4$ortion 4ct 19F does not appl#) remains to $e seen

Possi"le fuure de&elo%#ens

"nteraction bet+een the E, and the European Court of Human Rights

n 1 .e$ruar# 0,1, it as announced that the ecretar# eneral of the Council of Europeas holding meetings ith the ne E" Commissioners for Iome 4ffairs and for Justice.undamental 3ights and CitiLenship on preparations for future E" accession to the EuropeanCon%ention on Iuman 3ights 4ccession to the Con%ention $# the E" ill $e an importantde%elopment for %arious reasons2

o as a pu$lic authorit# the E" ill ha%e to compl# institutionallyith the Con%ention

(though it should $e noted that the European Court of Justice has in an# case heldthat the ECI3 must $e taen into account in interpreting European "nion la)+

o in principleit ill $ecome possi$le to tae the E" to the European Court of Iuman

3ights (ECtI3) for alleged $reaches of the European Con%ention on Iuman 3ights(ECI3) (though there might $e an issue a$out hether or not it is possi$le in suchcircumstances to e!haust domestic remedies)+ and

o perhaps the E" Charter of .undamental 3ights ill $egin to lose some of its

significance+ and it should $e noted in an# case that 4rticle ; of the consolidatedE" treaties as amended $# @is$on alread# states that2

.undamental rights as guaranteed $# the European Con%ention for theProtection of Iuman 3ights and .undamental .reedoms Bie the ECI3 not theE" Charter of .undamental 3ights and as the# result from the constitutionaltraditions common to the /em$er tates shall constitute general principles of the"nion>s la

6f and hen the E" institutionall# accedes to the Con%ention the crosso%er $eteen theEuropean "nion and the European Court of Iuman 3ights is liel# to $ecome much morepronounced than hitherto M and the consequences of this cannot $e entirel# foreseen *hereremains hoe%er one e# difference $eteen the effect of the to Con%entions in terms ofdomestic la

6n order to engage the European Court of Iuman 3ights one must first e!haust domesticremedies M hich means that though the domestic courts tae account of tras$ourg'urisprudence in their on deli$erations a case cannot come $efore the ECtI3 until it has$een disposed of $# the upreme Court in the "nited Kingdom56t is possi$le hoe%er for adomestic court to see an opinion on an issue of compliance ith E" la from the EuropeanCourt of Justice 4t the time of riting for e!ample a response is aaited to a request froman Emplo#ment *ri$unal for a preliminar# ruling from the European Court of Justice under4rticle 0;A of the EC *reat# as to hether or not an unpaid %olunteer (ho in the case inquestion happens to $e a Church of cotland minister) is protected from summar# dismissal$# the Emplo#ment Equalit# (3eligion or ?elief) 3egulations 0,,; n that $asis it is

54lthough there is no general right of appeal against sentence or con%iction from the Court of Criminal

4ppeal in cotland under the Iuman 3ights 4ct 1998 it is possi$le to appeal to the upreme Court ona human rights point6ee -asih v &*&. -B0,,9 Emplo#ment *ri$unal Case 7um$er 11A,;N0,,8 (0 4ugust 0,,9)


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possi$le that an issue of religion and human rights might $e sent to @u!em$ourg for apreliminar# ruling under the E" Charter of .undamental 3ights hen it could not under an#circumstances $e sent to tras$ourg 6t should $e emphasised hoe%er that onl# the courtitself can request a preliminar# ruling from the ECJ2 the parties cannot

The relationship bet+een E, and domestic la+

ection 0(1) of the European Communities 4ct 19F0 defines the relationship $eteendomestic and E" la as follos2

4ll such rights poers lia$ilities o$ligations and restrictions from time to timecreated or arising $# or under the *reaties and all such remedies and proceduresfrom time to time pro%ided for $# or under the *reaties as in accordance ith the*reaties are ithout further enactment to $e gi%en legal effect or used in the "nitedKingdom shall $e recognised and a%aila$le in la and $e enforced alloed andfolloed accordingl#+ and the e!pression Genforcea$le E" rightH and similare!pressions shall $e read as referring to one to hich this su$-section applies

6n short pro%isions of E" la that are directly applicable or have direct effect such as E"

3egulations or certain articles of the E" *reaties ha%e automatic effect in domestic laithout the need for a further 4ct of Parliament

6n the case of pro%isions of E" la that are neither directly applicable nor have direct effectection 0(0) maes it possi$le to gi%e effect in national la to such measures $# secondar# orlegislation such as statutor# instruments+ moreo%er section 0(A) pro%ides that suchsecondar# legislation ma# mae such pro%ision as might $e made $# 4ct of Parliament M andtherefore amend or repeal e!isting legislation

The European ,nion (ill

Clause 18 in Part ; of the European "nion ?illintroduced into the Iouse of Commons on 117o%em$er 0,1, pro%ides as follos2

Saus of EU la) de%enden on coninuing sauor! "asis6t is onl# $# %irtue of an 4ct of Parliament that directl# applica$le or directl# effecti%eE" la (that is the rights poers lia$ilities o$ligations restrictions remedies andprocedures referred to in section 0(1) of the European Communities 4ct 19F0) falls to$e recognised and a%aila$le in la in the "nited Kingdom

n 11 cto$er in a ritten /inisterial tatement on the so%ereignt# clause the o%ernmentstated that in its %ie hile case la had upheld the &fundamental principle of parliamentar#so%ereignt# : e ha%e decided to put the matter $e#ond speculation $# placing this principleon a statutor# footing 6n a letter to colleagues on the da# that the ?ill as introduced the/inister for Europe Da%id @idington e!plained that though the o%ernments %ie as thatthe principle of parliamentar# so%ereignt# had not $een affected $# "K mem$ership of the

E" $ecause the issue had $een the su$'ect of legal and political speculation &e $elie%ethere is great merit in putting the matter $e#ond speculation $# affirming the Common @aposition in statute hich ill reinforce the re$uttal of contrar# arguments in the future F

6n its 3eport on the ?ill the Iouse of Commons European crutin# Committee e!pressedserious dou$ts as to hether or not Clause 18 meant an#thing at all 6t concluded that & Clause18 is a reaffirmation of the role of a so%ereign Parliament in a dualist state nothing morenothing less and that &Clause 18 does not address the competing primacies of E" andnational la M and the e%idence that it had recei%ed had suggested that Clause 18 asunnecessar# 6n so sa#ing the Committee flatl# contradicts the o%ernments statement inthe E!planator# 7otes to the ?ill that Clause 18 &ill pro%ide clear authorit# hich can $e

7.or the te!t of the /inisterial tatement and of the letter see Iouse of Commons European crutin#Committee2 The E, (ill and Parliamentary sovereignty(*enth 3eport of ession 0,1,M11) paras ;, O;1
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relied upon to counter arguments that E" la constitutes a ne higher autonomous legalorder8

Clause 18 notithstanding the suspicion is that hether or not an item of E" legislationtrumps an item of domestic legislation is a matter that in the final anal#sis ill fall to $edetermined $# the European Court of Justice rather than $# the domestic courts

$rank Cran#er

*+ ,une *-.-/ u%daed .0 Dece#"er *-.-

8Iouse of Commons European crutin# Committee2 The E, (ill and Parliamentary sovereigntyparas8, O 81

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Churches and European Law