An EU Law on Religion – A Recent Development
The following post is a reworking of the conclusions drawn in Emma Ahlm’s dissertation, EU Law and Religion – A Study of How the Court of Justice has Adjudicated on Religious Matters in EU Law at Uppsala University.
‘Would you tell me, please, which way I ought to go from here?’
‘That depends a good deal on where you want to get to,’ said the Cat.
‘I don’t much care where –’ said Alice.
‘Then it doesn’t matter which way you go,’ said the Cat.
‘ – so long as I get SOMEWHERE,’ Alice added as an explanation.
‘Oh, you’re sure to do that,’ said the Cat, ‘if you only walk long enough.’1Alice’s Adventures in Wonderland (1865), by Lewis Carroll
A Legal Development in the Making
The Court of Justice of the European Union (“Court of Justice”) has, within the last five years, developed a body of case law relating to religious matters in EU law spanning a wide range of subject areas: non-discrimination, data protection, state aid, asylum, animal welfare and slaughter rules.2See, inter alia, C-157/15 G4S Secure Solutions , EU:C:2017:203; C-188/15 Bougnaoui and ADDH , EU:C:2017:204; C-74/16 Congreación de Escuelas Pías Provincia Betania , EU:C:2017:496; C-414/16 Egenberger , EU:C:2018:257; C-426/16 Liga van Moskeeën , EU:C:2018:335; C-25/17 Jehovan Todistajat , EU:C:2018:551; C-68/17 IR , EU:C:2018:696; C-193/17 Cresco Investigation , EU:C:2019:43 Can an “EU law on religion” be distilled, based on this line of case law? By which principles and by what standard has the Court of Justice of the European Union adjudicated on religious matters in EU law, concerning in particular the relationship between the Union and its Member States? It is submitted here that the Court of Justice has challenged a deeply seated European connection between territory and religion.
Historically, religion has been understood in international and European law as connected to national sovereignty. The narrative of international law assumes the Peace of Westphalia in 1648 as the starting point for the Westphalian system of individual, sovereign states in Europe. Inherently, this narrative presupposes that religion carries an aspect of territoriality. This idea finds articulation in the principle of cuius regio eius religio – the idea that the ruler decides the religion of his territory – which was part of the Westphalian system as it developed. Given this historical background, the territoriality of religion is closely entangled with the Westphalian system of states.
The international system of human rights has enhanced the individual’s right to hold – or refrain from holding – a religion or belief, to change religions, and to act on one’s belief and religion, whether in private or in public, alone or in community with others. The Westphalian system upholds these ideas, emphasizing that it is the nation state which is responsible for protecting its citizens. The European Court of Human Rights (“Court of Human Rights”) supervises the contracting states, including all Member States of the European Union, regarding their commitments under the European Convention on Human Rights (“ECHR”). Yet the supervision does not entail a break with the Westphalian system. When developing its principles on Article 9 ECHR – principles such as the absolute forum internum and the relative forum externum, or that religious freedom is indissociable from a democratic society as well as a precious asset for the believer, the atheist, and the unconcerned – the Court of Human Rights has awarded the states with a wide margin of appreciation when considering whether a limitation is necessary in a democratic society. Thus, religious freedom is protected in the Member States of the European Union, first, in and by their legal orders, and second, supervised by the Court of Human Rights under Article 9 ECHR.
To what extent does the Court of Justice take into account the territoriality of religion in its adjudication on religious matters? The European Union, as a sui generis legal order derived from the Westphalian system, builds on the historical and regional heritage in Europe, where religion is first and foremost a national matter, intimately linked to the territory of the nation state. The European Union functions under the principle of “conferral of power,” meaning that the European Union can only legislate when it has been granted the possibility to do so by the Member States as laid down in the Treaties. From the outset, it is clear that the Union does not have the competence to decide on the relationship between Member States, churches and religious organizations – for example, whether or not a Member State enters into a concordat with the Roman Catholic Church or separates from a former state church, or indeed abides by a strict secularist principle. However, it is submitted here that the Court of Justice has adjudicated on religious matters in Union law by treating them as part of the sui generis legal order. And it is concluded that although the European Union does not have competence to legislate on the relationship between the Member States and religious organizations, the Union still affects that relationship.
It is argued that religious affairs are matters of EU law, if EU law applies. Thus, religious issues are not outside the scope of EU law because of their religiousness. This was settled by the Court of Justice in Steymann3C-196/87 Udo Steymann v Staatssecretaris van Justitie , EU:C:1988:475 in the 1980s and has been confirmed in subsequent case law. This means that the Court of Justice does not account for the territoriality of religion as established by the Westphalian system. The legal rules in the Member States concerning religion must conform with the norms established by Union law, be it non-discrimination law, data protection rules, or the prohibition on state aid. This is a break with the nation state as the locus of religion, although it is more of a chip than a crack; and the extent of this development has yet to be decided.
Religious Freedom in EU Law
The Charter of Fundamental Rights of the European Union (“CFR”) is the fundamental rights bill of the European Union and is upheld by the Union and the Member States when acting within the scope of Union law. Article 10 of the Charter of Fundamental Rights states: “Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.” Limitations of this right are laid down in a general clause, Article 52(1) CFR, rather than in any specific clause, but these limitations are very similar to those of Article 9(2) ECHR. According to the Court of Justice, Article 10 CFR corresponds to Article 9 ECHR and is given the same scope and meaning, but this does not prevent the Charter from providing a more extensive protection.
According to Article 9(2) ECHR, limitations of religious freedom are possible if they fulfill certain criteria, as prescribed by law and as necessary in a democratic society. It is in the necessity assessment that the Court of Human Rights awards a wide margin of appreciation in deciding the limitation of religious freedom in that state – reason being, there is a lack of consensus among the European states in matters concerning the relationship between the state and religion, or religious organizations.
The Court of Justice has not in its adjudication on religious freedom and equality awarded the Member States with a similar margin of discretion. Rather, the Court of Justice seems adamant that its role is to interpret EU law in order to maintain the primacy, unity, and effectiveness of Union law. Nevertheless, the European Convention on Human Rights – including the judgments of the European Court of Human Rights – are used as an interpretative tool and as a source of argumentation for the Court of Justice. As a general trend, the Court of Justice gathers much of the material content of Article 10 CFR from the jurisprudence on Article 9 ECHR, with the exception of the wide margin of appreciation. The territoriality of religion is not acknowledged to any greater extent by the Court of Justice, in that religious matters are not treated differently compared to other spheres of society, just because they are religious. The treatment of religion depends instead on where in Union law it occurs and whether it triggers any special protection in relation to religious freedom and/or religious equality. Freedom of religion and equality are rights to be respected within the Union legal order, not by awarding the Member States with a margin of discretion but rather by upholding a uniform standard of protection in Union law.
Religious Equality as a Cornerstone
In 2018, the Court of Justice established in Egenberger that religious equality, enshrined in Article 21 CFR, serves as a general principle of Union law, with mandatory effect. The importance of the negative aspect of religious equality – that is, the right to be treated equally irrespective of a lack of faith or religious affiliation – is strong with the European Union. In Egenberger, as well as in the IR and Cresco Investigation cases which confirmed and developed Egenberger, the persons whose religious equality was protected all purported their lack of religious affiliation towards their employers. As such, they challenged the special solutions for religious organizations, minority as well as majority, in their respective Member States. When individuals have put forth their positive right to religious equality – that is, the wearing of hijab in the workplace in G4S Secure Solutions and in Bougnaoui and ADDH – the outcome has been less favorable.
Although equality is laid down through Article 14 of the European Convention on Human Rights, that article is not self-standing and holds a weaker position in the Convention framework, compared to Article 21 of the Charter in the Union framework. Thus, it is submitted that the Union principle of religious equality, rather than the right to religious freedom, has the potential to affect the Member States beyond the impact of the Convention on Human Rights. This is so, since they cannot uphold traditional prerogatives for majority faiths and religious organizations when such are to the detriment of others, particularly those with no faith at all.
The Jurisdiction of a Secular Court
The self-restraint of the Court of Justice when adjudicating on religious matters, termed here “the limits of secular jurisdiction,” is a feature of several of the cases which the Court of Justice has adjudicated on. Limits of the jurisdiction of a secular court are phrased by the Court of Human Rights and transposed to the Union setting by the Court of Justice. Such limits relate to theological disputes and the legitimacy of religious beliefs. Within the scope of Union law, however, such limitations do not reach so far as to remove the right to judicial review, including the ability to have one’s rights or duties tried by a court of law, according to Article 47 CFR.
The ambiguity surrounding the question of a limit of secular jurisdiction entails the need for further research. It excludes theological questions and the legitimacy of a religious stance from the assessment of a secular court. Nevertheless, the right to judicial review curtails the autonomy of religious organizations, according to the Court of Justice in Egenberger. However, how to uphold the right to judicial review – without reviewing the religious ethos of the organization or the legitimacy of its doctrinal teaching – is not an easily determined task. How a secular jurisdiction relates to the organizational autonomy of religious organizations, and, specifically, the procedural safeguards which are laid down in Article 47 CFR on the right to judicial review, needs to be investigated further, should the Court of Justice continue with this line of reasoning.
The Neutrality of the European Union
The text of Article 17(1) TFEU states that “the Union respects and does not prejudice the status under national law of churches and religious associations and communities in the Member States”. In academic literature, concerns have been raised that this article entails that the Union must not, in any way whatsoever, affect religious issues in the Member States. In other words, Article 17(1) TFEU would mean that religious issues, per se, are outside the scope of Union law.
Yet in contrast, it is submitted here that Article 17(1) TFEU has not been interpreted by the Court of Justice as a prohibition for Union law to affect or impact the Member States in their relationship with churches and religious communities, and is not, in the view of the Court of Justice, an ultra vires clause. Rather, the Court of Justice held in Egenberger that Article 17(1) TFEU expresses the neutrality of the Union in relation to the way a Member State has arranged its relationship to religious organizations. Several of the Advocate Generals have expressed similar views: AG Kokott has stated that 17(1) TFEU cannot be interpreted as a sectorial exemption, but must rather influence the application and interpretation of Union law;4Opinion of AG Kokott on C-74/16 Congreación de Escuelas Pías Provincia Betania , EU:C:2017:135 AG Tanchev has written that Article 17(1) TFEU expresses that the models of church-state relationships are to be respected by the European Union;5Opinion of AG Tanchev on C-414/16 Egenberger , EU:C:2017:851 and AG Bobek has argued that the Union must show neutrality – indeed, be agnostic – towards how the Member States have organized their relationship to religion.6Opinion of AG Bobek on C-193/17 Cresco Investigation , EU:C:2018:614 The concurrence among the Advocate Generals indicate that the interpretation of Article 17(1) TFEU by the Court of Justice – of the article’s intra vires character – is widely recognized.
Thus, while the Member States are free to choose a certain model of state-church (or state-religion), that model must comply with the demands of EU law. Yet it is less clear what the duty of neutrality of the Union towards the traditions of the Member State entails. One possibility is that neutrality means even-handedness in relation to religion, but neutrality might also mean a duty to refrain from religion in the public sphere. The Member States must, within the sphere of EU law, fulfill their obligations under EU law. This duty of the Member States is not changed by the neutrality of the Union in relation to how a national law governs the relationship between the state and religious organizations and churches.
Moreover, showing neutrality cannot be interpreted as not showing any preferred position at all, since religious equality constitutes a general principle of Union law. Therefore, in conclusion, it is stated that Article 17(1) TFEU must be interpreted in light of the general principle of religious equality enshrined in Article 21 CFR. This entails that Member States are, in principle, relatively free to keep national prerogatives and traditions, but only so long as they do not contradict the religious equality of others, and in particular the negative aspect: the right not to have a religion.
A Continuing Process of Change
It has been argued here that the sui generis legal order of the European Union has the potential of stirring the relationship between law and religion that each Member State has developed over centuries. Thus, changing the location of the divine, the locus of religion. The extent of this development depends greatly on the Court of Justice, and right now, we can only see the beginning of it. The Court of Justice has just started to develop its stance on matters of religion. In the words of Tuori, European constitutionalization is not a “linear, pre-determined and harmonious evolutionary process”.7Kaarlo Tuori, ‘The Relationality of European Constitution(s). Justifying a New Research Programme for European Constitutional Scholarship’, European Legal Method – towards a New European Legal Realism? (DJØF 2013) 121. Rather, what can be expected is continued change. The question is: Will religious matters continue to be Europeanized? And moreover, how will Union law be affected – and challenged – by claims for religious freedom and equality?
Member States have developed their relationship with churches and religious organizations, as well as their views on religious expressions in the public sphere; it is likely that such processes will continue. The main responsibility of upholding religious freedom will continue to rest on the individual state, and the European Court of Human Rights will continue to supervise how the contracting states live up to their obligations under the European Convention on Human Rights. But religious freedom must also be upheld at the Union level, which entails that Union law at large must fulfil the criteria of Article 10 CFR, and thus indirectly Article 9 ECHR.
Nevertheless, as the Member States continue the process of shaping their relationship with religion – including regulations of religious expression in the public sphere, status of majority and minority faiths, religious organizations as employers and special regulations for religious peculiarities – they must account for Union law. Religious matters are not safeguarded from the impact of Union law, neither primary nor secondary law. In particular, it is the right of individuals to enjoy religious equality, and respect for their non-religious affiliation, that may challenge the special position of majority faiths in the Member States. Moreover, the Member States must abide by the particular norms in special fields of Union law, such as state aid, free movement rules, and asylum. Such obligation also exists for religious organizations which are directly affected by certain parts of Union law, such as the General Data Protection Regulation.
Alice asks the Cat, in the quote at the beginning of this article, “Would you tell me, please, which way I ought to go from here?” The Cat answers that it depends a good deal on where she wants to get to.
Which way ought the Court of Justice go in its adjudication on matters of religion? It depends, like Alice, on where it wants to get to. What the Cat highlights is that Alice has a choice, and moreover, that not making a choice is also a choice. You still get somewhere – but not necessarily to a place you want to get to.
The Court of Justice is developing a case-law on religious equality in the Union, which surpasses both the European Convention on Human Rights and the traditions of the Member States. The Court of Human Rights has accounted for the territoriality of religion by awarding the contracting states with a wide margin of appreciation. This is not the path that the Court of Justice has chosen. Instead, the uniformity of Union law has been the guiding star. Not all matters of religion spark controversy, but some do, and there is a need for a thorough legal reasoning, based on the Union principle of religious equality, in order to justify the adjudication of the Court of Justice. When doing so, the Court of Justice should be aware of the territorial aspects of religion and the interconnectedness between the regulation of religion and state sovereignty. Otherwise, it might end up getting somewhere, if it only walks long enough. ♦
Emma Ahlm has been a lecturer at the faculties of law at both Uppsala University and Lund University. She has also been a visiting scholar at the Center for the Studies of Law and Religion at Emory University. Ahlm publishes regularly on issues concerning law and religion from a European perspective and is particularly interested in questions concerning how religion is constructed in and by law, the collective aspects of religious freedom, and the enhancement of religious equality in Europe.
Ahlm, Emma. “An EU Law on Religion – A Recent Development.” Canopy Forum, March 12, 2021. https://canopyforum.org/2021/03/12/an-eu-law-on-religion-a-recent-development/