The Impact of EU Enlargement on the European Law on Religion

https://doi.org/10.63189/DQPD4009

The European Law on Religion

The substantive body of EU community law concerning religion has been expanding since 1975. The EU enlargement has fueled this expansion of norms that regulate various legal aspects of religion. The accession of Greece was probably the first milestone in the creation of the European Law on Religion. Greece belongs to countries with a complex system of state-religion relations. Due to its deep historical ties to Christianity – particularly Eastern Christianity and Byzantine church traditions – Greece has established a multitude of regimes governing state-religion relations. The Church of Greece is constitutionally recognized as the prevailing religion and as a legal entity under public law. Additionally, other religious entities such as the Islamic Community, the Israeli Community, the Patriarchate of Constantinople (based in Istanbul, Turkey), and the monastic polity of Mount Athos enjoy special legal status.

For example, the accession of Greece to the European Communities resulted in norms that had to accommodate the unique autonomy of the monastic community living in Mount Athos, which is part of Greek territory. The Joint Declaration concerning Mount Athos that was adopted in 1979 states: ‘Recognizing that the special status granted to Mount Athos, as guaranteed by Article 105 of the Hellenic Constitution, is justified exclusively on grounds of a spiritual and religious nature, the Community will ensure that this status is taken into account in the application and subsequent preparation of provisions of Community law, in particular in relation to customs franchise privileges, tax exemptions and the right of establishment’.^[1]

This Joint Declaration highlights certain distinct characteristics of the European Law on Religion. First, it recognizes that special status and legal regimes of religious entities that state members have afforded to them on a national level, are of importance for the European Communities as a whole. Second, it affirms the relevance of constitutional provisions as a basis for recognizing certain privileges for religious entities at the European level. Third, it acknowledges that spiritual and religious nature of particular entities can justify their special treatment or exceptions from general rules. Finally, it underscores that even fundamental human rights, such as the right of establishment, can be limited or even derogated when there are sufficient reasons of religious or spiritual nature.

Basic principles of EU law on religion

Various authors have sought to identify the basic principles of European Law on Religion.^[2] This section aims to examine these principles in the context of EU enlargement.

The fundamental principle of the European Law on religion is the recognition and acceptance of the special contribution and value of religion.^[3] This is evident in the Lisbon treaty whose Preamble states that the EU draws inspiration, inter alia, from Europe’s religious heritage. Furthermore, the Treaty on the Functioning of the European Union (TFEU) acknowledges the identity and specific contribution of churches and religious associations.^[4] The recognition of the value of religion can be identified also in the secondary EU law. E.g. the Directive 2006/123 acknowledges the religious and philosophical values of society, while Directive 77/388 grants tax exemptions to religious institutions for the supply of services and goods related to hospital and medical care, welfare and social security work, protection of children and young persons and children’s or young people’s education, school or university education, and vocational training or retraining. New EU Member States and most of candidate states share this principle. The value of religion, and especially of Christianity, has been recognized in their constitutions and legislation. Therefore, the EU enlargement will contribute to the further development and deepening of this principle.

The product of the first principle is the special protection of religion under the EU law. As noted by Doe, this protection is more pronounced in secondary EU law than in its treaties. He identifies three main areas where special treatment is accorded: religious organizations, individuals, religious property, and religious food.^[5] However, this special treatment of religion extends to other fields and has grown alongside the expansion of EU law.   

The second basic principle of European Law on Religion is neutrality.^[6] Neutrality, however, can be understood differently depending on the nature of state-religion relations in each country. The EU itself has no established religion and does not identify with any religious organization. Member States, on the other hand, have adopted diverse regimes of state-religion relations and varying concepts of neutrality. At the EU level, neutrality is understood as impartiality in religious matters and the lack of any special treatment of any religious organization or group. The EU acts in formally neutral and religion-blind way. This formal neutrality is also reflected as a principle in the state-religion relations of many newer member and candidate states. While some ‘older’ EU Member States have adopted state-religion regimes that are characterized by established religions, and therefore specific concept of state neutrality, most newer Member States have adopted cooperationist models that impose a duty of neutrality in religious matters similar to that upheld by the EU.

Neutrality implies the principle of substantive equal treatment of all religions, which forms the next foundational principle of European Law on Religion. Equality means treating equal what is equal and treating different what is different according to the difference.^[7] Religious equality is closely linked to the prohibition of discrimination. There is a substantive body of EU regulatory instruments that prohibit against the discrimination on religious grounds. In almost every filed of EU law there are provision that provide for the implementation in manner that does not discriminate on grounds such are religion or belief. The EU enlargement has enhanced the protection against discrimination of religious organizations in new Member States, while it allowed them to maintain historical ties with traditional churches and religious communities.

Another essential principle is the protection of religious freedom, a fundamental human right enshrined in the EU Charter of Fundamental Rights and a multitude of regulatory instruments. The protection of religious freedom is one of the conditions for the accession of new member states. The Commission is monitoring the state of play in the realm of religious freedom in all candidate countries and publishes its findings in annual enlargement reports. The Commission takes into consideration national legislation and the jurisprudence of the European Court of Human Rights, while it identifies areas that are challenging and need further improvements.

One of the post-products of religious freedom protection is the notion of religious autonomy. There is no religious freedom without the autonomy of religious organizations. Although not explicitly regulated in EU primary law, Article 17 of the TFEU implicitly recognizes the right of religious organizations to self-determination through acknowledgment of their identity and specific contribution. Several legislative acts also recognize this autonomy. For example, the Council Directive establishing a general framework for equal treatment in employment and occupation provides that ‘in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos’.^[8] The right to elect and appoint employees is one of the most important reflections of religious autonomy, since religious ministers perform religious duties which are of utmost importance for religious organizations and their doctrine. Furthermore, there are other examples in EU law that indicate the recognition of religious autonomy, such as the juridical integration of decision-making by religious authorities into the European regulatory regime, the determination of marital status of persons, etc.

Finally, the principle that has the greatest influence on EU-religion relations is cooperation with religious organizations. This extends beyond the dialogue mandated by Article 17 TFEU to include active participation of religious entities in providing opinions and expertise on issues of common interest. Most major religious groups in Europe maintain full-time representations in Brussels. EU enlargement has enhanced this cooperation, as many Central and Eastern European states adopt cooperationist model of state-religion relations.

Conclusion

Based on the foregoing considerations, it can be concluded that the substantive body of EU law addressing religion has expanded significantly in recent years and decades. EU enlargement has contributed significantly to this development. While the EU has no established religion, and therefore separation between religion and the EU predominates in its regulations, the EU ‘shares characteristics most in common with the so-called cooperationist model of religion-state relations’.^[9] This model allows for cooperation between the EU and various religious communities in areas of shared interest, while maintaining institutional separation between religion and the EU. It is likely that the volume of EU laws concerning religion will continue to grow, further reinforcing this cooperationist model of EU-religion relations.

^[1] Documents concerning the accession of the Hellenic Republic to the European Communities, final act, Joint Declaration Concerning Mount Athos, Official Journal L 291 , 19/11/1979 P. 0186.

^[2] Doe, N. (2011) Law and Religion in Europe: A Comparative Introduction. Oxford: Oxford University Press; https://doi.org/10.1093/acprof:oso/9780199604005.001.0001; Robbers, G. (2004) ‘Diversity of state-religion relations and European Union unity’, Ecclesiastical Law Journal, 7(34), pp. 304–316 [Online]. Available at: https://doi.org.10.1017/S0956618X00005391 (Accessed: 30 October 2024).

^[3] This principle is the first that mentions Norman Doe.

^[4] Art. 17, para. 3 TFEU.

^[5] Doe, 2011, p. 254.

^[6] Gerhard Robbers identifies regionality as the first principle while neutrality is the second. In this piece of work the principle of regionality will be covered by other principles.

^[7] Robbers, 2004, p. 316.

^[8] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Official Journal L 303 , 02/12/2000 P. 0016 – 0022.

^[9] Doe, 2011, p. 257.