The status of churches and philosophical and non-confessional organizations within the framework of the european union reform

• Author: Gabriela Alexandra Oanta
• Position: Instituto Universitario de Estudios Europeos "Salvador de Madariaga", Universidad de A Coruña (Spain)
• Pages: 121-135

Page 121

Introduction

Article 17 of the Treaty on the Functioning of the European Union (hereinafter TFEU) can be seen as one of the most significant developments introduced by the Treaty set up to reform the Treaties which had established the European Community and the European Union, which was signed in Lisbon in December 2007, concerning the democratic participation of European citizens. For the first time ever, an article is devoted entirely to the issue of the status of churches and of philosophical and non-confessional organizations within the Union.

The first two paragraphs of article 17 require the European Union (hereinafter EU) to respect and not to prejudice the status of churches and religious associations or communities, as well as relevant philosophical and non-confessional organizations that are recognized by its member States, under their respective jurisdictions. Meanwhile, the last paragraph of this article highlights the recognition in the Union of the identity of, and the specific contribution made by churches and religious associations or communities, and of philosophical and nonconfessional organizations, with which the EU "will maintain an open, transparent and regular dialogue". These provisions have been interpreted during the process of drafting of the rejected Treaty establishing a Constitution for Europe¹ by numerous persons as "threatening" the principle of separation between Church and State, excluding the principle of secularism that characterizes all current EU Member States.

It is, as we shall see, one of the issues about which more debate has been aroused in recent years when it comes to the reform of the original Community Law. This has, at the same time, highlighted the important differences that exist in the 27 EU Member States with

Page 122

respect to the issue of religion. What was being questioned was not religious freedom, but rather the legal position that churches and philosophical and non-confessional organizations should occupy within the Union. Nowadays nobody doubts religious freedom is a fundamental right for all human beings, which is supported by art. 9 of the European Convention on Human Rights (hereinafter ECHR)² and, moreover, this is reflected in the abundant writing which exists on the topic.³ On the other hand, the novel nature of article 17 of the TFEU and the fact that it has not, as yet, come into force, might well explain the existence of so few commentaries within specialist legal writings.

With the intention of showing the path taken by churches and philosophical and nonconfessional organizations up until their current situation of recognition within the framework of the EU, this study will be divided into two parts. In the first part, we will analyse the legal position of both churches and religious associations or communities, as well as that of philosophical and non-confessional organizations before the signing of the Lisbon Reform Treaty, with particular attention to activities carried out under the European Convention (I), and, in the second part, try to present the scope and content of article 17of the TFEU which, as we have mentioned above, consists of the official recognition by the Union of churches and the philosophical and non-confessional organizations (II).

Literature review

Charentenay, Pierre de. "Les relations entre l'Union européenne et les religions". Revue du Marché commun et de l'Union européenne 465 (2003): 90-100; Consorti, Pierluigi. "Le Chiese e l'unificazione europea". Aggiornamenti sociali vol. 51 (2000): 403-416; Corral Salvador, Carlos. "Europa y ONU: sus sistemas político-religiosos, el europeo y el universal". UNISCI Discussion Papers, January 2005; Dony, Marianne, and Bribosia, Emmanuelle, eds. Commentaire de la Constitution de l'Union européenne. Bruxelles: Editions de l'Université de Bruxelles, 2005; Fernández-Coronado González, Ana. "La influencia de la religión en la configuración del Derecho de la Unión Europea". Revista de Ciencias de las Religiones XI (2004): 25-40; Robbers, Gerhard. State and Church in the European Union, 2nd ed. Baden- Baden : Nomos, 2005 ; Robbers, Gerhard. "Community Law on Religión. Cases, Sources and Trenes". European Journal for Church and State Research 8 (2001): 275-278; Roldán Barbero, Javier. "La Carta de Derechos Fundamentales de la UE: su estatuto constitucional". In Constitución y ampliación de la Unión Europea. Crisis y nuevos retos, dir. By Jorge Pueyo Losa, 235-274. Santiago de Compostela: Tórculo, 2004; Rolland, Patrice. "Article I-52". In Traité établissant une Constitution pour l'Europe. Commentaire article par article. Parties I et IV "Architecture constitutionnelle", Tome 1, dir. by Laurence Burgorgue-Larsen, Anne Levade and Fabrice Picod, 670-677. Bruxelles: Bruylant, 2007; Souto Galván, Esther. El reconocimiento de la libertad religiosa en Naciones Unidas. Madrid: Marcial Pons, 2000; Souto Galván, Esther. "El estatuto de las iglesias y de las organizaciones no confesionales". In Libro II. Los derechos y libertades, dir. by Enrique Álvarez Conde and Vicente Garrido Mayol, 361-378. Valencia: Tirant lo Blanch, 2004.

I. The legal position of churches and philosophical and non-confessional organizations within the European Union before the signing of the Treaty on the Functioning of the European Union

It should be stressed from the outset that the original Treaties of the European Communities did not make any reference to the fundamental rights of human beings in general, and the freedom of religion or religions existing in the Member States in particular. It was not until the Maastricht Treaty that it was recognized that "the Union shall respect

Page 123

fundamental rights as guaranteed in the European Convention on Human Rights and Fundamental Freedoms of November 4, 1950, and those which result from the constitutional traditions common to the Member States as general principles of Community law "(article F.2 TEU).

In the following years, and especially during the Intergovernmental Conference (hereinafter IGC) held in 1996, the Foreign Ministers of the fifteen Member States of the EU discussed what would be the best way to protect the rights and fundamental freedoms within the new European Community Treaty (hereinafter the EC Treaty). For example, the German delegation proposed the introduction of the following article on the legal status of Churches: "The Union considers that the constitutional position of religious communities in the Member States is both an expression of the identity of the Member States and their culture, as part of their common cultural heritage."

With respect to this, it is worthwhile to note the response of the then President of the European Commission, Mr. Santer, to a written question by a member of the European People's Party on this proposal. Mr. Santer said he felt that the proposal was part of the wider scope of protection of freedoms and fundamental rights of European citizens, and also noted that the IGC, which had been responsible for reforming the Maastricht Treaty, had considered the possibility that the EU joined the ECHR. He also emphasized the scope and content of article 9.1 of the ECHR, which stipulates that "everyone has the right to freedom of thought, conscience and religion".⁴ Lastly, noting that the German proposal was not a unique option, given that it had also been supported by the delegations of other States in the CIG'96. This proposal was also supported by the Vatican, which wanted the Church, in general, and the Catholic Church, in particular, to receive specific legal recognition within the foundational Community Law.

Finally, there was no update of article F.2 of the TEU which, after the reform of Amsterdam, became article 6.2 of the TEU, but rather it was decided to draw up a Declaration on the status of churches and non-confessional organizations, which was to be inserted as an appendix in the final Act of this IGC. At this point Greece considered necessary to recall the Joint Declaration regarding Mount Athos, which had been included as an appendix to the Final Act of the Treaty on its accession to the European Communities.⁵

Thus, the Declaration No. 11 was issued as an appendix to the Final Act of the EC Treaty signed in Amsterdam, under the title "Status of churches and non-confessional organisations", foresaw that "The European Union respects and will not prejudge the status under national law, of churches and religious associations or communities within the Member States. The European Union also respects the status of philosophical and non-confessional organizations".⁶

With relation to this point, it should be noted that this Declaration has no binding legal value for the EU o its Member States, being merely a political statement. Nobody, however, can fail to detect the recognition, which those who had drawn up the reform of the Maastricht Treaty were giving, especially to the Church, within the EU framework and, hence, the legal significance it holds within the Union. In addition, as this was a statement made jointly by the Heads of State and Government of all Member States, Declaration No. 11 is a general rule of interpretation according to Article 31 of the Vienna Convention on the Law of Treaties passed in 1969. Hence, it is an integral part of EU law and can therefore be invoked before the Court of Justice of the European Communities (hereinafter ECJ).

It is also worthy of mention that this was the first time in which a specific and explicit reference to religion was made, and also that the presence of churches and religious communities within the life of the EU was being recognised. For years an ongoing informal dialogue had been...