EU TFEU: Churches and non-confessional organisations

Can a member state of the European Union contemplate the death penalty for apostasy, the renunciation of a religious faith, since the relations between state and church are exclusive competences of the member states?

We take a look at what the Lisbon Treaty has to say about state powers in religious matters, and we outline the limits of these competences.

Europe is no Iran.

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The intergovernmental conference (IGC 2007) inserted a new Article 16c on churches and religions into the Treaty of Lisbon (ToL), in Part One, Principles, Title II, Provisions having general application, of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/50:

30) The following new Article 16 C shall be inserted:

Article 16c TFEU (ToL), after renumbering Article 17 TFEU

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

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There is no corresponding provision in the current treaties, but the first two paragraphs derive from Declaration 11 attached to the Treaty of Amsterdam. Available at:

http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997D/htm/11997D.html#0133040028

11. Declaration on the status of churches and non-confessional organisations

The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

The European Union equally respects the status of philosophical and non-confessional organisations.

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The European Convention debated the place of God, churches and religion in the draft Treaty establishing a Constitution for Europe, and ended up with the following provision in Part I, Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):

Article I-51 Draft Constitution
Status of churches and non-confessional organisations

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

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We can see that the two paragraphs of Declaration 11 were numbered, but inserted ‘verbatim’. The third paragraph, on a regular dialogue with churches as well as religious and non-confessional organisations was new.

The IGC 2004 continued the discussion on the place of God and religion in the secular Treaty establishing a Constitution for Europe, but as in the draft Constitution, there was no specific mention of God. The Constitution began its Preamble with the following referral:

DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, …

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As you can see, the Constitutional Treaty took over the provision of the draft Constitution, in Part I, Title VI The democratic life of the Union, adding ‘under national law’ to the second paragraph (OJ 16.12.2004 C 310/36):

Article I-52 Constitution
Status of churches and non-confessional organisations

1. The Union respects and does not prejudice the status under national law of churches and
religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional
organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open,
transparent and regular dialogue with these churches and organisations.

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These provisions of the Lisbon Treaty TFEU and the Constitution are identical.

If God is universal, the relations between states and churches are manifold. The European Union recognises that these relations are within the exclusive competence of the member states.

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On the other hand, the powers of the member states may be exclusive, but not without limits. All the EU members are members of the Council of Europe, and they are parties to the pan-European Convention for the Protection of Human Rights and Fundamental Freedoms, available at:

www.coe.int

The Charter of Fundamental Rights of the European Union expressly recognises the right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief (OJ 14.12.2007 C 303/4):

Article 10 Charter
Freedom of thought, conscience and religion

1. 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.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

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The first stop for the background of Charter provisions are the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/21):

Explanation on Article 10 — Freedom of thought, conscience and religion

The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.

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Article 2 of the Charter protects the right to life, which includes the abolishment of the death penalty (OJ 14.12.2007 C 303/3):

Article 2 Charter
Right to life

1. Everyone has the right to life.

2. No one shall be condemned to the death penalty, or executed.

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The European Union, which sees its values as universal, has predictably condemned the Iranian Parliament’s draft criminal code, which would sanction apostasy with the death penalty. See the CFSP Statement on the web site of the Slovenian Presidency of the EU Council, “Declaration by the Presidency on behalf of the EU concerning the consideration of a draft Penal code in the Islamic Republic of Iran”:

http://www.eu2008.si/en/News_and_Documents/CFSP_Statements/February/0225MZZiran.html

The Iranian draft code contradicts two fundamental values of the European Union (and the Council of Europe): right to freedom of thought, conscience and religion, including the freedom to change religion or belief, and the ban on the death penalty, seen as barbarous and cruel.

The leadership of Iran has shown little concern for human rights and international public opinion, but some reader might be interested enough to sort out Iran’s commitments under international law, including conventions on human rights.

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The amended Treaty on European Unionof (TEU), Article 8b TEU (ToL), renumbered Article 11 TEU, already provides for exchanges of views, dialogue and consultations with citizens, representative associations, civil society and parties concerned (OJ 17.12.2007 C 306/14):

Article 8b TEU (ToL), after renumbering Article 11 TEU

1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.

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The general TEU clause on dialogue leaves the EU institutions wide scope to select the issues and participants, whereas the specific TFEU provision on dialogue with religious and non-confessional organisations creates an obligation with some minimum content for the institutions.


Ralf Grahn