Religion and religious communities in the EU legal system.

• Author: Ferrari, Silvio
• Position: Report

Introduction

This paper aims to answer the following question: With regard to the legal status of religion and religious communities, what can an applying state expect once its application to become a member of the EU has been taken into consideration and negotiations are started? What demands is the EU likely to formulate and what legal changes are going to be required? It is impossible to give an exhaustive answer, as each state has its own legal system and certain EU demands are prompted by the specific characteristics of that system. However, it is possible to provide a partial answer, limited to the conditions which depend on EU law and therefore are to be met by any state entering the EU.

Even within these limits, the answer is not easy due to the peculiar relations binding the EU and its member states. The EU has powers far larger than those normally attributed by states to an international organization. EU member states have given up a part of their sovereignty: in some domains, powers that were part of state sovereignty are now wielded by the EU or jointly by the EU and its member states. In other domains, states' powers are still intact. The outcome of this situation is a complex (some say baroque) architecture where EU law and the law of EU member states are intertwined and bound by a relationship of reciprocal influence. As a consequence, defining the exact meaning of the "EU legal system" is not simple.

A second element has to be taken into account. The member states have largely maintained political control of the EU and they frequently make use of it to point EU decisions in a direction close to their way of looking at the problem under discussion. Some EU decisions can be fully understood only by taking into account the legal and political traditions prevailing among the member states (the debate about the reference to Europe's Christian heritage in the preamble of the European constitution is a good example). Therefore, an applying state should also pay attention to the law of member states, as it could indirectly shape EU requests.

The first part of this paper will be devoted to explaining the meaning of the "acquis communautaire" in the matter of religion; in this way, the relevant sources of EU law will be identified. The second and shorter part will contain some references to the indirect influence that the member states' legal traditions can exercise on the EU. The results of this analysis will be summarized in the conclusion.

The "acquis communautaire"

It is well known that the states which enter the EU are requested to adopt, implement and enforce the "acquis communautaire",1 that is, the entire body of EU legal provisions. However, it would be misleading to think of the "acquis communautaire" as the treaties, the regulations and directives enacted by EU institutions and the decisions laid down by the ECJ. Due to the characteristics of the European unification process and the distribution of power between the EU and the member states, the "acquis communautaire" has the peculiar feature of being open-ended. Therefore, besides laws directly produced by the EU institutions, two other sets of legal provisions play a role in the formation of the "acquis communautaire": the laws of the member states and international law.

A good example of the complex structure of the EU legal system is the issue of human rights. With the adoption of the Treaty of Lisbon in 2009, the European Union Charter of Human Rights became legally binding. Moreover, Articles 2 and 6 of the Treaty on European Union (TEU) state that the Union is founded on a set of values (freedom, democracy, equality, the rule of law, etc.) that are common to the member states and affirm that "fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law." (2) Therefore, the human rights recognized and enforced by the EU as general principles in its legal system are those deriving from: a) the EU legal provisions (the EU Charter of Human Rights) and, within the limits of a general principle, b) the European Convention on Human Rights, and c) the constitutional traditions common to the EU member states.

This mechanism also applies to religious freedom. To assess the relevance of the right to religious freedom in the area attributed to EU law, these three components have to be taken into account. However, they do not have the same impact. The difference emerges when the individual and collective dimensions of religious freedom are distinguished. Although they cannot be separated, the first dimension mainly focuses on the individual, and the second on the religious community, including the legal position religious communities have in EU law. The "acquis communautaire" covers both profiles but while individual religious freedom finds a fairly comprehensive discipline in EU and ECHR provisions, collective religious freedom (and in particular its profile concerning church-state relations) has to be primarily considered with reference to the constitutional traditions of the member states.

This interplay can be visually represented in the following way:

Therefore, in order to have a correct picture of the place given to religious liberty in the EU legal system, all the components of the "acquis communautaire" must be taken into consideration.

The EU and ECHR Provisions Protecting Individual Religious Freedom

According to Article 6(2) of the Treaty on the Functioning of the European Community (TFEU), all the fundamental rights granted by the ECHR can be applied in the EU legal system as general principles. (3) As a consequence, Article 9 of the ECHR has become enforceable (within the limits of a general principle) and it provides EU law with a sound foundation for dealing with issues connected to religious liberty. Moreover, Article 10 of the European Union Charter of Fundamental Rights contains a provision that repeats the content of Article 9 of the ECHR. This foundation is further strengthened by the inclusion in the Treaty on the Functioning of the European Community (TFEU) of a provision which (going further than Article 14 of the ECHR) is committed to fighting discrimination based (inter alia) on religion (Article 19): equal treatment of persons of different religious beliefs or convictions is now directly granted by EU treaty law and a number of EU directives have applied this principle in the fields of employment, aid to developing countries, cooperation, etc. (4) Finally, all EU member states constitutions contain at least one provision that protects religious liberty along lines which are coherent with Article 9 of the ECHR and sufficiently homogeneous to give shape to a common constitutional tradition. (5) Starting from this solid foundation, the EU body of law concerning religion and religious communities has steadily grown. Directives and regulations frequently include one or more provisions which take into account the impact religion has in matters as disparate as tax law, slaughtering of animals, television broadcasting, working time, etc. (6)

Similar remarks apply to the case law of the Court of Justice. Since the Paris decision of 1976, (7) freedom to manifest one's religion has entered the catalogue of fundamental rights elaborated in EU case law (8) and the Court of Justice has made a significant number of decisions on matters of relevance for religions and religious communities, dealing with issues like the weekly day of rest, freedom of movement, employment, etc. (9)

Of course, the importance of religious issues in the EU legal system should not be overestimated. EU law deals with religion when and where religion is relevant in labor relations, custom law, data protection and in the other fields of EU interest, (10) but religion in itself remains outside the scope of EU competence. Therefore, it would be useless to look for a coherent and comprehensive set of EU provisions explicitly aimed at disciplining its different profiles. In EU treaties, there are no religion clauses as they can be found in most national constitutions or human rights conventions (11) and the ECJ case-law regarding religion is not comparable in scope and number of decisions to that of most European Constitutional Courts and of the ECHR. Nevertheless, within the limits of the...