THE CHURCHES AND EUROPEAN LAW Background European Commission President Jacques Delors (in office 1985-1995) recognised

that ith further enlargement and e!pansion of E" as a political union rather than merel# as a trading or economic association there needed to $e further discussion as to the o%erall direction and conceptual meaning of the &European Pro'ect() *he idea of a common European identit# and the place of religion ere central to this discussion+ and since the 198,s there has $een an official dialogue $et een the European "nion and the Churches as ell as ith other religious $odies- scientific and cultural organisations) The failed Cons i u ional Trea ! *he ill-fated and unratified &*reat# esta$lishing a Constitution for Europe(- hich died after its re'ection $# .rench and Dutch %oters in /a# and June 0,,5- contained no e!plicit reference either to 1od or to Christianit# in the main $od# of the te!t $ut its Pream$le referred to religion in its %er# first sentence2 D345671 678P634*697 from the cultural- religious and humanist inheritance of Europe- from hich ha%e de%eloped the uni%ersal %alues of the in%iola$le and inaliena$le rights of the human person- freedom- democrac#- equalit# and the rule of la : A similar reference to the spiritual and moral heritage is made in the Charter of .undamental 3ights of the European "nion signed $# the mem$er states in 0,,,: Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. 4rticle 6-50 of the Constitutional *reat# then ent on to treat the status of churches and of non-confessional organisations in an e%en-handed a#2 1) *he "nion respects and does not pre'udice the status under national la churches and religious associations or communities in the /em$er 8tates) 0) *he "nion equall# respects the status under national la confessional organisations) of

of philosophical and non-

;) 3ecognising their identit# and their specific contri$ution- the "nion shall maintain an open- transparent and regular dialogue ith these churches and organisations) *he Chairman of the drafting Con%ention- <al=r# 1iscard d>Estaing- had deli$eratel# left the issue of the place of religion open hen he drafted the document- in%iting a petition for the inclusion of some religious reference) &6 ha%e chosen not to insert the reference to the Christian heritage in the constitution-( he as reported as sa#ing) &3ather- 6 appeal to #ou to persuade me of its necessit#)( 1 6n response- opinions ere di%ided2 the 1o%ernment of Poland as strongl# in fa%our of some specific reference to Christianit# hile .rance- ith a centur# of lacit $ehind it- as opposed) *he 3oman Catholic Commission of the ?ishops> Conferences of the European "nion (C9/ECE) suggested that

4m$rose E%ans-Pritchard2 &1m Christians sign E" religion plea( Daily Telegraph (@ondon 05 7o%em$er 0,,A))

BaCt a prominent place- in the centre $et een the cultural and the humanist inheritance- the religious inheritance of Europe forms a source of inspiration for the entire Constitutional *reat#)0 ?# maDing reference to the religious inheritance of Europe- argued C9/ECE- the Treaty implicitl# accepted the predominant contri$ution made $# Christianit# to the Europe of toda# and an e!plicit mention of 1od or of Christianit# ould ha%e $een a strong signal supporting the identit# of Europe) /oreo%erBaCs a matter of historical fact- it is Christianit# and the Christian message that ha%e $uilt the &inheritance of Europe( from hich ha%e de%eloped the uni%ersal %alues of the in%iola$le and inaliena$le rights of the human person- democrac#- equalit# and the rule of la ) *he Pream$le does state that these %alues ha%e deri%ed from the religious inheritance) *he Constitutional *reat# dra s its inspiration from specific traditions that ha%e shaped Europe- thus implicitl# referring to the centre of this tradition- hich is Christianit#); The Trea ! of Lis"on *he successor to the failed Constitutional *reat# as the *reat# of @is$on- hich amends the pre%ious 4rticle E to recognise &the rights- freedoms and principles set out in the Charter of .undamental 3ights of F Decem$er 0,,,( and states that 4rticle 1, shall $e replaced $# the follo ing2 G6n defining and implementing its policies and acti%ities- the "nion shall aim to com$at discrimination $ased on se!- racial or ethnic origin- religion or $elief- disa$ilit#- age or se!ual orientation)H .inall#- 4rticle 1, (.reedom of thought- conscience and religion) of the E" Charter of .undamental 3ights states that2 1) E%er#one has the right to freedom of thought- conscience and religion) *his right includes freedom to change religion or $elief and freedom- either alone or in communit# ith others and in pu$lic or in pri%ate- to manifest religion or $elief- in orship- teaching- practice and o$ser%ance) 0) *he right to conscientious o$'ection is recognised- in accordance la s go%erning the e!ercise of this right) The EU Trea ies as a#ended "! Lis"on *he consolidated %ersions of the *reat# on European "nion and the *reat# on the functioning of the European "nion- as amended $# the @is$on *reat#- $egin as follo s2 I68 /4JE8*J *IE K671 9. *IE ?E@16478 Bet alC: 3E89@<ED to marD a ne stage in the process of European integration undertaDen ith the esta$lishment of the European CommunitiesD345671 678P634*697 from the cultural- religious and humanist inheritance of Europe- from hich ha%e de%eloped the uni%ersal %alues of the in%iola$le and inaliena$le rights of the human person- freedom- democrac#- equalit# and the rule of la : 4rticle 11 of *itle 66 of the consolidated %ersion of the *reat# on European "nion- as amended $# @is$on- states that ith the national

C9/ECE2 The Treaty Establishing a Constitution for Europe: Elements for an Evaluation (?russels 11 /arch 0,,5) p 1A) 3 6$id)

1) *he institutions shall- $# appropriate means- gi%e citiLens and representati%e associations the opportunit# to maDe Dno n and pu$licl# e!change their %ie s in all areas of "nion action) 0) *he institutions shall maintain an open- transparent and regular dialogue representati%e associations and ci%il societ#) ith

;) *he European Commission shall carr# out $road consultations ith parties concerned in order to ensure that the "nion>s actions are coherent and transparent) 4rticle 1F of *itle 66 of the consolidated %ersion of the *reat# on the .unctioning of the European "nion- as amended- e!plicitl# introduces the idea of a dialogue $et een European institutions and religions- churches and &communities of con%iction(2 1) *he "nion respects and does not pre'udice the status under national la churches and religious associations or communities in the /em$er 8tates) 0) *he "nion equall# respects the status under national la confessional organisations) of

of philosophical and non-

;) 3ecognising their identit# and their specific contri$ution- the "nion shall maintain an open- transparent and regular dialogue ith these churches and organisations) 6t is 4rticle 1F of *itle 66 that pro%ides a constitutional $asis for formal consultations+ and on its e$site the European Commission(s ?ureau of Polic# 4d%isers characterises the consultation process liDe this2 o 9pen2 an#one ho ishes to taDe part in the dialogue can do so) *he Commission does not ha%e the po er to define M either on a national or European le%el M the relationship $et een the 8tate and churches- religious communities and philosophical and non-confessional organisations) *he European Commission therefore accepts as dialogue partners all organisations that are recognised $# the /em$er 8tates as churches- religious communities or communities of con%iction) *ransparent2 e%er#one should ha%e the right to Dno - at an# time- ho is in%ol%ed in the dialogue) 6ts o$'ecti%es and results should also $e clear) *he aim of this site is to maDe the dialogue more transparent and to pro%ide information a$out related e%ents) 3egular2 the European Commission maintains an ongoing dialogue ith its partners at %arious le%els- in the form of $ilateral meetings or specific e%ents) *he Commission also has regular $ilateral e!changes ith partners at their request and e%ents are organised regularl# ithin the frame orD of the dialogue)

The Char er of $unda#en al Righ s of he Euro%ean Union 4rticle 1, of the Charter of .undamental 3ights of the European "nion- signed in 0,,,protects freedom of thought- conscience and religion2 1) E%er#one has the right to freedom of thought- conscience and religion) *his right includes freedom to change religion or $elief and freedom- either alone or in communit# ith others and in pu$lic or in pri%ate- to manifest religion or $elief- in orship- teaching- practice and o$ser%ance) 0) *he right to conscientious o$'ection is recognised- in accordance la s go%erning the e!ercise of this right) 6n addition- the Pream$le states that the Charter reaffirms- ith due regard for the po ers and tasDs of the Communit# and the "nion and the principle of su$sidiarit#- the rights as the# result- in particular- from the ith the national

constitutional traditions and international o$ligations common to the /em$er 8tatesthe *reat# on European "nion- the Communit# *reaties- the European Con%ention for the Protection of Iuman 3ights and .undamental .reedoms- the 8ocial Charters adopted $# the Communit# and $# the Council of Europe and the case-la of the Court of Justice of the European Communities and of the European Court of Iuman 3ights) The Euro%ean Con&en ion on Hu#an Righ s 'ECHR( *he European Con%ention on Iuman 3ights (ECI3) (formall# the Convention for the Protection of Human Rights and undamental reedoms ) entered into force on ; 8eptem$er 195;) 4ll Council of Europe mem$er states are part# to the Con%ention) *he Con%ention esta$lished the European Court of Iuman 3ights and- initiall#- a Commission hich as to act as a filter for complaints) 6nitiall#- though there as a right of indi%idual petition to 8tras$ourg after the claimant had e!hausted domestic remedies- the domestic courts ere not themsel%es o$liged necessaril# to taDe account of 8tras$ourg 'urisprudence M though the# increasingl# did so as a matter of choice) 4ll the Contracting 8tates- ith the e!ceptions of 6reland and 7or a#- ha%e incorporated the Con%ention into their o n la 2 the "nited Kingdom did so in the Iuman 3ights 4ct 1998) 6ncreasingl#- the ECtI3 ad'udicates on issues of freedom of religion and of moralit#particularl# in relation to 4rticle 8 (right to respect for pri%ate and famil# life) and 4rticle 9 (freedom of thought- conscience and religion) M hich states that 1) E%er#one has the right to freedom of thought- conscience and religion+ this right includes freedom to change his religion or $elief and freedom- either alone or in communit# ith others and in pu$lic or pri%ate- to manifest his religion or $elief- in orship- teaching- practice and o$ser%ance) 0) .reedom to manifest one>s religion or $eliefs shall $e su$'ect onl# to such limitations as are prescri$ed $# la and are necessar# in a democratic societ# in the interests of pu$lic safet#- for the protection of pu$lic order- health or morals- or for the protection of the rights and freedoms of others) *hree recent cases ha%e highlighted the moralit# or religion2 o a# in hich the Court in%ol%es itself in issues of

6n !autsi v "taly the 8econd 8ection ruled that displa#ing crucifi!es in state schools as contrar# to 4rticle 0 of Protocol 7o) 1 (education) and 4rticle 9 (thoughtconscience and religion)) *his e%oDed a shocDed reaction from the 6talian 1o%ernment- hich appealed to the 1rand Cham$er) 9ral argument as heard on ;, June and a 'udgment is e!pected some time in 0,11) 6n #chal$ and %opf v &ustria the .irst 8ection held $# four %otes to three that the fact that same-se! couples in 4ustria do not ha%e the same rights as married couples does not constitute unla ful discrimination under 4rticle 8 $ecause the legal status of same-se! relationships remains a matter ithin the &margin of appreciation( accorded to mem$er states)A 5hen the complaint as originall# lodged the applicants had no access to an alternati%e registration s#stem+ $ut that situation as remedied as from 1 Januar# 0,1,) Iad it not $een for that fact- ho e%er- the 'udgment might ha%e $een rather different) 9n ;, 7o%em$er 0,1, lea%e to appeal to the 1rand Cham$er as refused M hich means that the 'udgment is final) 6n &' ( ) C v "reland the la s on termination of pregnanc# ere challenged as %iolating 4rticles 8 (pri%ate and famil# life) 1; (effecti%e remed#) and 1A (discrimination) ECI3) Judgment as deli%ered on 1E Decem$er 0,1,) *he 1rand

*he &margin of appreciation( is &an area of discretionar# 'udgment( hich is &$ased on the fact that national authorities are in a $etter position than an international tri$unal to 'udge hat is necessar# under local conditions(2 Da%id .eldman: Civil !iberties and Human Rights in England and *ales (0,,0 0nd ed- 9!ford) at 5F)

Cham$er unanimousl# dismissed the 6rish 1o%ernment(s o$'ection that the first and second applicants had failed to e!haust domestic remedies and declared the applicants( complaints admissi$le) *he Court held $# ele%en %otes to si! that as regards the first and second applicants there had $een no %iolation of 4rticle 8 or of 4rticle 1; taDen in con'unction ith 4rticle 8) Io e%er- as regards the third applicanta @ithuanian national resident in 6reland ho as suffering from a rare from of cancerthe Court held unanimousl# that her rights under 4rticle 8 had $een %iolated) Io this ill impact on the de%elopment of the la in 6reland (and- for that matter- in 7orthern 6reland- to hich the 4$ortion 4ct 19EF does not appl#) remains to $e seen) Possi"le fu ure de&elo%#en s "nteraction bet+een the E, and the European Court of Human Rights 9n 1E .e$ruar# 0,1, it as announced that the 8ecretar# 1eneral of the Council of Europe as holding meetings ith the ne E" Commissioners for Iome 4ffairs and for Justice.undamental 3ights and CitiLenship on preparations for future E" accession to the European Con%ention on Iuman 3ights) 4ccession to the Con%ention $# the E" ill $e an important de%elopment for %arious reasons2 o as a pu$lic authorit#- the E" ill ha%e to compl# institutionally ith the Con%ention (though it should $e noted that the European Court of Justice has in an# case held that the ECI3 must $e taDen into account in interpreting European "nion la )+ in principle it ill $ecome possi$le to taDe the E" to the European Court of Iuman 3ights (ECtI3) for alleged $reaches of the European Con%ention on Iuman 3ights (ECI3) (though there might $e an issue a$out hether or not it is possi$le in such circumstances to e!haust domestic remedies)+ and perhaps the E" Charter of .undamental 3ights ill $egin to lose some of its significance+ and it should $e noted in an# case that 4rticle E); of the consolidated E" treaties as amended $# @is$on alread# states that2 .undamental rights- as guaranteed $# the European Con%ention for the Protection of Iuman 3ights and .undamental .reedoms Bie- the ECI3- not the E" Charter of .undamental 3ightsC and as the# result from the constitutional traditions common to the /em$er 8tates- shall constitute general principles of the "nion>s la ) 6f and hen the E"- institutionall#- accedes to the Con%ention the crosso%er $et een the European "nion and the European Court of Iuman 3ights is liDel# to $ecome much more pronounced than hitherto M and the consequences of this cannot $e entirel# foreseen) *here remains- ho e%er- one De# difference $et een the effect of the t o Con%entions in terms of domestic la ) 6n order to engage the European Court of Iuman 3ights one must first e!haust domestic remedies M hich means that- though the domestic courts taDe account of 8tras$ourg 'urisprudence in their o n deli$erations- a case cannot come $efore the ECtI3 until it has $een disposed of $# the 8upreme Court in the "nited Kingdom) 5 6t is possi$le- ho e%er- for a domestic court to seeD an opinion on an issue of compliance ith E" la from the European Court of Justice) 4t the time of riting- for e!ample- a response is a aited to a request from an Emplo#ment *ri$unal for a preliminar# ruling from the European Court of Justice under 4rticle 0;A of the EC *reat# as to hether or not an unpaid %olunteer ( ho in the case in question happens to $e a Church of 8cotland minister) is protected from summar# dismissal $# the Emplo#ment Equalit# (3eligion or ?elief) 3egulations 0,,;) E 9n that $asis- it is
5

4lthough there is no general right of appeal against sentence or con%iction from the Court of Criminal 4ppeal in 8cotland- under the Iuman 3ights 4ct 1998 it is possi$le to appeal to the 8upreme Court on a human rights point) 6 8ee -asih v &*&. - B0,,9C Emplo#ment *ri$unal Case 7um$er 11EA,;N0,,8 (0E 4ugust 0,,9))

possi$le that an issue of religion and human rights might $e sent to @u!em$ourg for a preliminar# ruling under the E" Charter of .undamental 3ights hen it could not under an# circumstances $e sent to 8tras$ourg) 6t should $e emphasised- ho e%er- that onl# the court itself can request a preliminar# ruling from the ECJ2 the parties cannot) The relationship bet+een E, and domestic la+ 8ection 0(1) of the European Communities 4ct 19F0 defines the relationship $et een domestic and E" la as follo s2 4ll such rights- po ers- lia$ilities- o$ligations and restrictions from time to time created or arising $# or under the *reaties- and all such remedies and procedures from time to time pro%ided for $# or under the *reaties- as in accordance ith the *reaties are ithout further enactment to $e gi%en legal effect or used in the "nited Kingdom shall $e recognised and a%aila$le in la - and $e enforced- allo ed and follo ed accordingl#+ and the e!pression Genforcea$le E" rightH and similar e!pressions shall $e read as referring to one to hich this su$-section applies) 6n short- pro%isions of E" la that are directly applicable or have direct effect - such as E" 3egulations or certain articles of the E" *reaties- ha%e automatic effect in domestic la ithout the need for a further 4ct of Parliament) 6n the case of pro%isions of E" la that are neither directly applicable nor have direct effect 8ection 0(0) maDes it possi$le to gi%e effect in national la to such measures $# secondar# or legislation such as statutor# instruments+ moreo%er- section 0(A) pro%ides that such secondar# legislation ma# maDe such pro%ision as might $e made $# 4ct of Parliament M and therefore amend or repeal e!isting legislation) The European ,nion (ill Clause 18 in Part ; of the European "nion ?ill introduced into the Iouse of Commons on 11 7o%em$er 0,1, pro%ides as follo s2 S a us of EU la) de%enden on con inuing s a u or! "asis 6t is onl# $# %irtue of an 4ct of Parliament that directl# applica$le or directl# effecti%e E" la (that is- the rights- po ers- lia$ilities- o$ligations- restrictions- remedies and procedures referred to in section 0(1) of the European Communities 4ct 19F0) falls to $e recognised and a%aila$le in la in the "nited Kingdom) 9n 11 9cto$er in a 5ritten /inisterial 8tatement on the so%ereignt# clause the 1o%ernment stated that- in its %ie - hile case la had upheld the &fundamental principle of parliamentar# so%ereignt# : e ha%e decided to put the matter $e#ond speculation $# placing this principle on a statutor# footing() 6n a letter to colleagues on the da# that the ?ill as introduced the /inister for Europe- Da%id @idington- e!plained that though the 1o%ernment(s %ie as that the principle of parliamentar# so%ereignt# had not $een affected $# "K mem$ership of the E"- $ecause the issue had $een the su$'ect of legal and political speculation- & e $elie%e there is great merit in putting the matter $e#ond speculation $# affirming the Common @a position in statute- hich ill reinforce the re$uttal of contrar# arguments in the future() F 6n its 3eport on the ?ill- the Iouse of Commons European 8crutin# Committee e!pressed serious dou$ts as to hether or not Clause 18 meant an#thing at all) 6t concluded that & Clause 18 is a reaffirmation of the role of a so%ereign Parliament in a dualist state- nothing morenothing less( and that &Clause 18 does not address the competing primacies of E" and national la ( M and the e%idence that it had recei%ed had suggested that Clause 18 as unnecessar#) 6n so sa#ing- the Committee flatl# contradicts the 1o%ernment(s statement in the E!planator# 7otes to the ?ill that Clause 18 & ill pro%ide clear authorit# hich can $e
7

.or the te!t of the /inisterial 8tatement and of the letter- see Iouse of Commons European 8crutin# Committee2 The E, (ill and Parliamentary sovereignty (*enth 3eport of 8ession 0,1,M11) paras ;, O ;1)

relied upon to counter arguments that E" la order()8

constitutes a ne

higher autonomous legal

Clause 18 not ithstanding- the suspicion is that hether or not an item of E" legislation trumps an item of domestic legislation is a matter that in the final anal#sis ill fall to $e determined $# the European Court of Justice rather than $# the domestic courts)

$rank Cran#er *+ ,une *-.-/ u%da ed .0 Dece#"er *-.-

Iouse of Commons European 8crutin# Committee2 The E, (ill and Parliamentary sovereignty paras 8, O 81)