AUTONOMY OF RELIGIOUS ORGANISATIONS IN THE EUROPEAN CONVENTION

ON HUMAN RIGHTS AND IN THE EUROPEAN UNION LAW

Mauro Gatti*

Published in L.S. Rossi and G. Di Federico (eds), Fundamental Rights in Europe and China.
Regional Identities and Universalism, Editoriale Scientifica, 2013: 132-153.

Abstract

The right of believers to freedom of religion encompasses the expectation that they will be allowed
to associate freely without interference from public authorities. This implies that religious
organisations should enjoy a certain degree of autonomy in their internal management and in the
formulation of their doctrines. In the context of European religious pluralism, however, such right
to autonomy may conflict with the interests of society and the rights of others.
This contribution examines the management and doctrinal dimensions of religious autonomy. It
demonstrates that the European Court of Human Rights (ECtHR) and EU institutions recognise the
relevance and non-absoluteness of religious autonomy and pragmatically balance it against other
rights and interests. Nonetheless, the current practice raises two issues. In the field of management
autonomy, the most recent jurisprudence of the ECtHR may jeopardise the protection of the rights
of others. In the area of doctrinal autonomy, European institutions may prevent minority groups
from enjoying their rights, by adopting a restrictive definition of belief and its manifestation and by
evaluating the legitimacy of religious beliefs.

1. Introduction

Contemporary European societies are characterised by the coexistence of several organisations

whose ethos is based on religion or belief. The protection of the freedom of religion of majority and
minority movements, as well as the rights of others, fosters religious harmony and pluralism. In this
context, freedom of religion constitutes a precious asset for believers and non-believers.1
Although religious freedom is primarily a matter of individual conscience, it encompasses freedom
to manifest one‟s religion, also in community with others. Hence, freedom of religion implies the
possibility of setting up religious organisations capable of living by their own religiously inspired
rules. To this end, it is widely believed that religious organisations should enjoy „autonomy‟, which
may be defined as the capacity to decide upon and administer their own internal religious affairs
without interference by public authorities.2
European instruments indirectly provide for the right to religious autonomy. As it is known, Article
9 of the European Convention on Human Rights (ECHR) and Article 10 of the EU‟s Charter of
Fundamental Rights (the Charter), foresee the protection of freedom of religion, in its two main
dimensions.3 First, the freedom to adopt or have a religion or belief of one‟s own choice, i.e. the so-
called forum internum. Secondly, the freedom to manifest religion or belief, or forum externum.
Whereas the former is absolute in nature, the second is relative: Article 9(2) ECHR specifies that
the right to manifest religion or belief is subject “to such limitations as are prescribed by law and

* PhD candidate in EU law, University of Bologna – University of Strasbourg.

1
Cf. Kokkinakis v. Greece, no. 14307/88, Series A no. 260-A, 25 May 1993, par. 31.
2
M. Chopko, “Constitutional Protection for Church Autonomy: A Practitioner's View”, in G. Robbers (Ed.), Church
Autonomy, Peter Lang, 2001.
3
The ECHR and the Charter of fundamental rights address also other aspects of freedom of religion. Articles 14 ECHR
and 21 of the Charter provide for non-discrimination on religious grounds. In addition, Article 2 of the first protocol to
the ECHR and Article 14 of the Charter affirm that the State must respect the right of parents to ensure education and
teaching in conformity with their own religious and philosophical convictions.

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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”.
As affirmed by the European Court of Human Rights (ECtHR) “the right of believers to freedom of
religion, which includes the right to manifest one‟s religion in community with others, encompasses
the expectation that believers will be allowed to associate freely, without arbitrary State
intervention.”4 Therefore, religious autonomy is protected by the right to manifest religion or belief,
interpreted in the light of Article 11 of the Convention, which safeguards associative life against
unjustified State interference. This implies that religious autonomy is a non-absolute right, since the
manifestation of freedom or belief is subject to the limitations that are prescribed by law and are
necessary in a democratic society, in order to pursue legitimate objectives. In other words, the
internal affairs of religious organisations cannot be completely shielded off from State interference. 5
The internal affairs of religious organisations concern aspects related to the organisations‟
management, such as the selection of leaders, the performance of ceremonies and the relation with
ministers. Moreover, they encompass the doctrinal side of the organisations‟ activity, in areas such
as the definition of religion or belief, its manifestation and its legitimacy. 6 Whereas attention has
recently been focused mainly on the autonomy of management of religious organisations,7 doctrinal
autonomy received relatively less attention. This contribution seeks to fill this gap, by examining
both the management and doctrinal sides of religious autonomy. It demonstrates that religious
autonomy is a crucial European value, which cannot be considered as absolute, for both theoretical
and practical reasons. It is submitted that the current practice raises some issues: the protection of
the autonomy of internal management is affected by some inconsistencies, while doctrinal
autonomy is too often neglected, to the detriment of minority religious movements.
This paper is divided in two parts. In the first, we address the autonomy of internal management of
religious organisations, namely by examining the role of the „balancing approach‟ in the European
experience and the challenges it faces in the most recent jurisprudence of the ECtHR. In the second
part, we turn to the „doctrinal‟ side of religious autonomy, by analysing the capacity of religious
organisations to determine what constitutes belief and its manifestation, and to assess the legitimacy
of beliefs.

2. Autonomy of internal management of religious organisations

4
Metropolitan Church of Bessarabia v. Moldova, no. 45701/99, ECHR Reports 2001-XII, 13 December 2001, par. 118.
The Court also held that “the autonomous existence of religious communities is indispensable for pluralism in a
democratic society and is thus an issue at the very heart of the protection which Article 9 affords”, Branch of the
Salvation Army v. Russia, no. 72881/01, Reports 2006-XI, 5 October 2006, par. 58.
5
Cf. European Commission for Democracy through Law (Venice Commission), Guidelines for legislative reviews of
laws affecting religion or belief, CDL-AD(2004)028, 19 July 2004: “it is reasonable to suggest that the State should be
very reluctant to involve itself in any matters regarding issues of faith, belief, or the internal organisation of a religious
group. However, when the interests of religious or belief groups conflict with other societal interests, the State should
engage in a careful and nuanced weighing of interests, with a strong deference towards autonomy, except in those cases
where autonomy is likely to lead to a clear and identifiable harm.” Cf. also M. Kiviorg, Collective religious autonomy
under the European Convention on Human Rights: the UK Jewish Free School case in international perspective, EUI
Working Paper MWP 2010/40, p. 7.
6
Alternatively, religious autonomy may be broken down into three categories: the inner domain of faith, the core
ministry, the core administration, cf. W. C. Durham, „The right to autonomy in religious affairs: a comparative view‟, in
G. Robbers (Ed.), Church Autonomy, Peter Lang, 2001, pp. 686-714, and Kiviorg, op. cit., p. 5. As it is evident, we
simplified this categorisation by merging the last two aspects, i.e. the core ministry and the core administration, in so far
as they both relate to the performance of activities, rather than to the formulation of ideas, such as the doctrinal side of
autonomy, i.e. the inner domain of faith.
7
Cf., e.g., Evans and A. Hood, „Religious Autonomy and Labour Law: A Comparison of the Jurisprudence of the
United States and the European Court of Human Rights‟, in Oxford journal of law and religion, vol. 1 no. 1, 2012, pp.
81-10; I. Leigh, „Balancing religious autonomy and other human rights under the European Convention‟, in Oxford
Journal of Law and Religion, vol. 1 no. 1, 2012, pp. 1–17.

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Religious organisations can only be capable of administering their own internal religious affairs if
they can determine and implement the rules that govern their functioning. This aspect of religious
autonomy may be referred to as „autonomy of internal management‟.
The autonomy of internal management of religious organisations has numerous dimensions, several
of which have been addressed by ECHR bodies. For instance, the Strasbourg Court gave protection
to the capacity of religious organisations to operate autonomously from the State, by holding that,
when legal recognition is necessary for religious organisations to operate, the refusal to recognise a
religious organisation constitutes an interference with freedom to manifest religion, whose
proportionality must be evaluated in the light of its seriousness and the State‟s motives.8 In addition,
the Court protected the capacity of organisations to select their leadership, by affirming that States
may interfere with the nomination of a religious leader only if such interference responds to a
pressing social need.9 Moreover, the ECtHR addressed the autonomy of religious organisations in
the establishment of their places of worship, by specifying that the refusal to grant an authorisation
to establish a place of worship constitutes an interference with religious autonomy and it cannot be
justified when it is used in order to impose rigid conditions on practice of religious beliefs by a
religious organisation.10
Notwithstanding the above, it must be stressed that this dimension of religious autonomy does
not receive absolute protection: the Court never excluded a priori the possibility of restraining the
autonomy of internal management of religious organisations. The relative nature of this protection
was confirmed by the subsequent jurisprudence concerning the employment within religious
organisations, which introduced the „balancing approach‟, in order to square religious autonomy
with the rights of others. Two recent Chamber judgements, however, seem to question the
application of this approach.

2.1. Introducing the balancing approach

The EHCR Commission originally addressed the relation between religious autonomy and
employment in 1989, in Rommelfanger v Germany, a case concerning the conflict between religious
autonomy and freedom of expression.11 The ECHR Commission found that the Convention allows
for the stipulation of contractual obligations whereby a party renounces freedom of expression to a
certain extent, since an employer whose activities are based on certain convictions would not be
able to effectively exercise its own freedoms without imposing certain duties of loyalty on its
employees.
The jurisprudence of the Court recently innovated with respect to Rommelfanger, by introducing
the balancing of the religious autonomy of internal management against other rights. The terrain for
the „balancing approach‟ was prepared in Lombardi Vallauri v Italy, where the Court affirmed that
the autonomy of religious organisations cannot impinge on the very essence of the procedural
protection granted by the right to freedom of expression. 12
The findings of Lombardi Vallauri were built upon in three subsequent judgements:13 Obst v
Germany, Schüth v Germany and Siebenhaar v Germany. 14 In these cases, the applicants were

8
Church of Bessarabia v Moldova, cit. supra, par. 105. Notice that Member States can invoke the lack of knowledge
about a new organisation as a „compelling motive‟ for deferring the conferral of legal personality, cf.
Religionsgemeinschaft der Zeugen Jehovas v. Austria, no. 40825/98, 30 July 2008.
9
Serif v Greece, No. 38178/97, Reports 1999-IX, 14 December 1999, par. 51-53; see also Hasan and Chaush v.
Bulgaria [GC] no. 30985/96, Reports 2000-XI, 26 October 2000, par. 82.
10
Manoussakis v Greece, no. 18748/91, Reports 1996-IV, 26 September 1996, par. 48-53.
11
No. 12242/86, D.R. No. 62, p. 151, 6 September 1989.
12
Lombardi Vallauri v. Italy, no. 39128/05, 20 October 2009, par. 55. In this sense, see also Pellegrini v. Italy, no.
30882/96, Reports 2001-VIII, 20 July 2001.
13
Notice that “while Lombardi Vallauri focused on the procedural limitations on the right to religious autonomy, the
three German cases went a step further and arguably started to develop a substantive limitation on employment
autonomy”, Evans and Hood, op. cit. According to the same authors, “The procedural approach developed in Lombardi

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sanctioned because of their extra-professional conduct, which their employers considered not to be
compatible with their own religiously based ethos. Since German judges refused to annul the
organisations‟ decisions, the Court held that Germany interfered with the applicants‟ rights. Such
interference was deemed to be proportional in Obst and Siebenhaar, because national judges had
acknowledged the need for a balancing of religious autonomy against the employees‟ rights. On the
contrary, the interference was not found to be proportional in Schüth, because the German judge
had failed to balance the interests at stake. In particular, the judge had not evaluated the „religious‟
relevance of the applicant‟s activity within the organisation; moreover, the tribunal had not fully
acknowledged the consequences of the organisation‟s decision on the professional life of the
applicant. Indeed, the applicant could not have renounced the very essence of his right to private
life.15
In summary, the Strasbourg Court recently developed a „balancing approach‟, to square the
autonomy of management of religious organisations with the rights of others. This confirms that,
although religious autonomy is protected by the ECHR, it does not constitute an absolute right, and
it may be limited in order to protect the rights of others.
At first sight, it may seem that the EU conceives the autonomy of management of religious
organisations in a different way, that is to say as an absolute value. For instance, Council Directive
93/104/EC, concerning certain aspects of the organisation of working time, provides for general
principles for the protection of the safety and health of workers; however, member States may
decide not to apply the same rules to “workers officiating at religious ceremonies in churches and
religious communities”.16 Arguably, the EU‟s legislator did not provide for any balancing of rights,
but it simply allowed for a restriction of the workers‟ rights, in order to foster the autonomy of
management of religious organisations.
A similar approach may seem to be embodied in Directive 2000/78/EC on equal treatment in
employment and occupation. 17 According to Article 4(2) of this Directive, in the case of
occupational activities within religious organisations Member States may allow for difference of
treatment based on a person's religion or belief.18 Hence, the rights of the employees of religious
organisations appear to be restricted, in favour of the rights of religiously inspired employers.
However, the same provision specifies that religious organisations may only discriminate when, by
reason of the nature of the activities of the worker or of the context in which they are carried out, a
person's religion or belief constitutes a “genuine, legitimate and justified occupational requirement,
having regard to the organisation's ethos.” In order to verify the existence of such requirement,
public authorities must investigate, inter alia, the relevance of the employer‟s activity within the
organisation. Hence, Art. 4(2) of Directive 2000/78/EC may be interpreted consistently with the
balancing approach devised by the Strasbourg Court. 19

Vallauri certainly represents an intrusion into religious autonomy. It may provide, however, a reasonable balance
between the rights of employees and religious groups”, id.
14
Obst v Germany, no. 425/03, 23 September 2010 and Schüth v Germany, no. 425/03, 23 September 2010, Siebenhaar
v Germany, no. 18136/02, 20 June 2011.
15
Cf. Schüth v Germany, par. 67, 69 and 73.
16
Council Directive 93/104/EC of 23 November 1993, OJ L 307, 13 December 1993, p. 18–24, Article 17.
17
Council Directive 2000/78/EC of 27 November 2000, OJ L 303, 2 December 2000, p. 16–22.
18
Moreover, the same provision affirms that the directive does not prejudice the right of churches and other public or
private organisations, the ethos of which is based on religion or belief to require individuals working for them to act in
good faith and with loyalty to the organisation's ethos.
19
Arguably, such interpretation of Directive 2000/78/EC is shared by the European Commission, which sent a reasoned
opinion to the German government in 2009, claiming that German law was incompatible with EU law precisely because
it allowed for unequal treatment in the field of employment within religion organisations, independently from the nature
of the activities performed by employees. Remarkably, this position of the European Commission was cited in the
Schüth judgement of the ECtHR. Cf. Schüth v Germany, cit. supra, par. 70. However, it must be stressed that this
Directive does not require Member States to take into consideration the consequences of the organisations‟ decisions on
the professional life of their employees, as the ECtHR affirmed in Schüth.

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 It may be concluded that the ECtHR‟s jurisprudence on employment in religious organisations
affirms that the autonomy of management of religious organisations is not absolute, but it must be
balanced against the rights of individuals and other groups. Although EU law is not completely
straightforward in this respect, it would seem that it does not exclude the balancing of the rights of
religious organisations against those of their employees.

2.2. The balancing approach under siege?

The approach contained in Obst, Schüth and Siebenhaar appears to have been challenged in two
most recent Chamber judgements: Sindicatul Pastorul Cel Bun v. Romania (January 2012) and
Fernandez Martinez v. Spain (May 2012).20
Pastorul Cel Bun originated from the request of some Orthodox priests and non-religious
employees of the Romanian Orthodox Church to give recognition to their trade union. The
competent departmental tribunal rejected the demand, by arguing that the creation of such a trade
union would have hampered the autonomy of the Romanian Church. The ECtHR affirmed that
Romania interfered with the freedom of association of the applicant‟s members, in a manner which
was not „necessary in a democratic society‟: the demands of the union did not challenge public
policy, since they concerned economic interests and they did not challenge religious beliefs.21
Pastorul Cel Bun may seem not to be consistent with Schüth: whereas the ECtHR formerly
construed religious autonomy as a corollary of manifestation of belief, in Pastorul Cel Bun the
Court interpreted autonomy as part of public policy.22 This evolution may be criticisable, since it
does not take into account the strict relation between religious autonomy and manifestation of
belief. However, the departure from the „balancing approach‟ may be more apparent than real: in
Pastorul Cel Bun the ECtHR did acknowledge the relevance of the church‟s rights and it mentioned
the limited threat posed by the trade union to freedom to manifest religion; 23 therefore, the Court
may have implicitly balanced the rights of the church against those of the applicant.24
The Fernandez Martinez case may be more troublesome. This case originated from the dismissal
of the applicant, a teacher of religion, at the demand of the Catholic Church. The Church motivated
such dismissal by arguing that the applicant had generated a „scandal‟, since he rendered his
personal situation as a married priest „public and manifest‟ 25 . Indeed, he had participated in a
meeting of a progressive Catholic group, known for its criticism of the Church‟s hierarchy, and a
picture of him and his family had been published in a local newspaper.
The ECtHR did not solve the case by balancing the applicant‟s right to private life against the
Catholic Church‟s right to freedom of religion: according to the Court, this case was different from
Obst, Siebenhaar and Schüth because the applicant was a priest; therefore, his status required
increased loyalty on his part. Such difference enabled the ECtHR to conclude that the national judge
was not required to balance the rights of the applicant against the religious autonomy of the Church,
but that the issue could be solved on the basis of the duty of loyalty, 26 in assonance with
Rommelfanger.
20
Pastorul Cel Bun v. Romania, No. 2330/09, 31 January 2012; Fernandez Martinez v. Spain, no. 56030/07, 15 May
2012.
21
Pastorul Cel Bun v. Romania, cit. supra, par. 75.
22
In all circumstances, the members of the trade union had not contractually renounced their rights under Article11
ECHR; in fact, the creation of the trade union was rendered impossible, in the view of the Romanian judiciary, by a
provision of the church‟s statute, which entered into force in 2008, when the members of the trade union had already
been hired. In the view of the Court, such conclusion is supported also by the fact that, prior to the entry into force of
the church‟s statute, two trade unions participated by church‟s employees had been recognised and such recognition was
not deemed to be contrary to the democratic regime.
23
Pastorul Cel Bun v. Romania, cit. Supra, par. 75 and 84.
24
In fact, the Court hints at the need to “procéder à une mise en balance effective des intérêts en jeu”, Id., par. 80.
25
“Se hizo pública y notoria la situación de D. José Antonio Fernández Martínez”, Obispado de Cartagena, nota official,
11 November 1997, available on the website of the Movimiento Pro-celibato Opcional, http://www.moceop.net.
26
Fernandez Martinez v. Spain, cit. supra, par. 83-86.

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 Hence, it may seem that the Court considers the balancing approach not to be applicable in cases
concerning the ministers of religious organisations.27 However, religious autonomy is not absolute,
therefore it should be restricted in order to protect the rights of others, including the ministers of a
religious organisation. The contrary would only be possible if religious ministers, unlike other
individuals, could renounce the very essence of their rights.28
Alternatively, Fernandez Martinez may be read as a pragmatic solution to a politically thorny
problem. As suggested by judge Saiz Arnaiz in his dissenting opinion, the balancing of the
applicant‟s and the Church‟s rights would have led the Court to assess whether the dismissal of the
former could be justified on the basis of the Church‟s freedom to manifest religion: 29 such
assessment would have placed the Court in an uncomfortable position. The applicant‟s situation had
been known to the Church and the applicant‟s local community before the controversy. Considering
that the applicant had previously been deemed fit for teaching, it would seem that his sudden
dismissal could not be motivated by the need to protect the Church‟s doctrine. 30 On the contrary, it
would seem that the Church acted to protect a political interest: a situation that the Church found
tolerable at local level became „scandalous‟ when it was brought to the awareness of a wider public.
Arguably, it would have been difficult for the Court to either affirm, or exclude, that such political
interest is part of the Church‟s freedom to manifest religion. By adopting a strategy different from
the „balancing approach‟, the Court simply bypassed this problem.
In summary, it is not clear whether the ECtHR intends to revise the „balancing approach‟ it
envisaged in Obst, Schüth and Siebenhaar. Arguably, the uncertainties created by the recent
jurisprudence, and especially by Fernandez Martinez, should be rectified in the next future, in order
to grant equilibrated protection to the rights of employers and employees.31

3. Doctrinal autonomy of religious organisations

The capacity of religious organisations to decide upon and administer their own internal religious
affairs is obviously dependent on their ability to formulate their doctrines and beliefs and to define
the latter‟s nature, modes of expression and legitimacy. This ability may be termed as „doctrinal
autonomy‟.
The practice of European institution may be problematic in three areas: the determination of the
„religious‟ nature of their beliefs, the identification of the latter‟s modes of expression and the
assessment of their legitimacy.

3.1. Defining religion or belief

27
On the role of the „ministerial exception‟ in the US, see the Supreme Court judgement Hosanna-Tabor Evangelical
Lutheran Church & School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). For a comparison of
the US and European experiences in this area, see C. Evans and A. Hood, op. cit.
28
This would be in direct contradiction of the Schuth jurisprudence, cit. supra. Incidentally, it may be noted that the
Court defined the applicant as a “prêtre sécularisé” (Fernandez Martinez v. Spain, cit. supra, par. 83), but it did not
discuss this, rather puzzling, definition.
29
Cf. partially dissenting opinion of judge Saiz Arnaiz in judgement Fernandez Martinez v. Spain, op. cit., par. 2.
30
Cf. ib.: “[La Cour] ne met pas en balance les droits du requérant avec [les principes de liberté religieuse et de
neutralité de l‟État], car cela l‟obligerait à expliquer les raisons pour lesquelles la condition publique de prêtre marié et
de père de famille, également connue de l‟évêché, est devenue un motif d‟inaptitude à l‟enseignement. L‟absence de
mise en balance implique que la Cour admet, à l‟instar de l‟évêché, que la publication de la situation personnelle du
requérant constitue une raison suffisante pour faire d‟un professeur apte à l‟enseignement un individu qui ne l‟est plus,
sans qu‟il soit nullement nécessaire de justifier la thèse du scandale devant l‟administration chargée de
l‟éducation, laquelle était d‟ailleurs seule compétente pour engager et rémunérer ce professeur.”
31
Cf. Leigh, op. cit, p. 15: “proportional balancing acknowledges the relevance of the various rights and even where
one is displaced by another, this is because of factors that tip the scales in that direction rather than on the artificial basis
that the right outweighed was not relevant in the first place.”

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As it known, there is no universally accepted definition of religion. 32 European institutions may
grant complete autonomy to religious organisations in this area, by empowering them to
autonomously identify their doctrines as „religious‟. Otherwise, such organisations may not be able
to decide upon and administer their own internal affairs, simply because they may not be considered
as „religious‟ in nature and they may not receive the protection that is offered by European
instruments.
Neither the ECHR Commission nor the European Court of Human Rights even needed to
define „religion‟, since the Convention protects both religion and belief: Strasbourg organs
addressed only the latter concept, which encompasses the former.33 The Commission defined belief
as a “coherent view on fundamental problems”. 34 The Court adopted a similar approach by terming
it as a view that attains “a certain level of cogency, seriousness, cohesion and importance.”35
The definitions of belief adopted by Strasbourg organs enabled them to hold Article 9 to be
applicable to traditional religions as well as to new religious movements and philosophical beliefs.36
It cannot be excluded, however, that the Court will consider a view not to be sufficiently „serious‟
to be classified as a belief in the future.37 By doing so, the Court may annihilate the autonomy of the
organisation whose ethos is embodied in that view. 38 Obviously, whereas mainstream religions are
most likely to be accepted as beliefs falling within the scope of Article 8 ECHR, minority
„religions‟ may not qualify as beliefs.39
The definition of belief provided by the Strasbourg Court should apply also in the field of EU
law, since the meaning and scope of the right contained Article 10 of the Charter is the same as the
meaning and scope of freedom of religion under Article 9 ECHR.40 However, EU law may provide
for a standard of protection that exceeds the minimum required by the ECHR. For the sake of
providing such protection, EU acts may envisage different definitions of religion and belief.
In general, when the Union defines religion or belief, it adopts an extensive definition. For
instance, for the purposes of Directive 2011/95 on the qualification of third-country nationals for
international protection, religion includes the holding of theistic, non-theistic and atheistic beliefs.41
However, Directive 2000/78/EC refers to „religion or belief‟ but it does not provide for a
definition of them. In theory, the absence of such definition is not problematic, since this Directive
should be read consistently with the Strasbourg Court‟s jurisprudence. In practice, the lack of a

32
Cf. Venice Commission, Guidelines for legislative reviews of laws affecting religion or belief, cit. supra: “there is no
generally accepted definition for such terms in international law, and many States have had difficulty in defining these
terms. It has been argued that such terms cannot be defined in a legal sense because of the inherent ambiguity of the
concept of religion”, p. 4.
33
Indeed, freedom of religion is protected alongside freedom of thought and conscience, and its manifestation is
addressed along with the manifestation of belief. Since thought comprises belief, and the latter comprises religion, it is
evident that Strasbourg organs only had to define what constitutes „belief‟ in order to identify the manifestations of
thought that are protected by Article 9 ECHR, and those that are not.
34
X v. Germany, no. 8741/79, D.R. 24 p. 137, 10 March 1981.
35
Campbell and Cosans v UK, No. 7511/76, 7743/76, Series A60, 22 March 1983.
36
E.g. Druidism: Chappell v. the United Kingdom, no. 12587/86, D.R. 53, p. 241; Scientology: X and Church of
Scientology v. Sweden, 7805/77, DR16 p. 68. See also Bratza, „The „Precious Asset‟: Freedom of Religion Under the
European Convention on Human Rights‟, in Ecclesiastical law journal, vol. 14 n. 2, 2012, pp. 256–271, at p. 259.
37
The potentially negative effects of this jurisprudence may be exacerbated by the procedural onus placed on believers,
which are requested to provide facts making it possible to establish the existence of a religion, cf. X v UK, no. 7291/75,
D.R. 11 p. 55, 4 October 1977.
38
Such shortcomings would not be solved by the approach the Court adopted in Kimlya and others v. Russia (nos.
76836/01 and 32782/03, 01 March 2010) where it stated that, since the characterisation of the applicant‟s views as a
“religion” is a matter of controversy among the member States, the Court relied on the position of the domestic
authorities in the matter. Not only does this approach not protect the autonomy of the organisations that are not
recognised as such by the States where they operate, but it seems not to be likely to substitute the Campbell
jurisprudence, as testified by the subsequent case Jacobski v. Poland, no. 18429/06, 7 March 2011, par. 44.
39
X v UK, cit. supra.
40
Cf. Article 52(3) of the Charter.
41
Directive 2011/95/EU, OJ L 337, 20 December 2011, Article 10(1)(b).

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definition may lead interpreters to erroneously define religion and belief in a restrictive manner,
presumably to the detriment of minority religions.
It may be concluded that ECHR bodies and EU institutions generally adopt objective and
rather extensive definitions of belief, which appear to be consistent with the aim of religious
freedom embodied in European law. 42 However, the heterogeneous definition of belief adopted by
the Strasbourg Court may potentially restrict the religious autonomy of some minorities in the
future.

3.2. Defining the manifestation of religion or belief

Although religious freedom is primarily a matter of individual conscience, it also implies

freedom to manifest one‟s religion. Therefore, doctrinal autonomy should not cover only the
definition of beliefs, as seen above, but it should also refer to the identification of their
manifestation.
Neither the ECHR nor the Charter provide for a definition of manifestation of religion or belief.
In the Arrowsmith v UK Decision, the ECHR Commission held that only the actions of individuals
that express the individuals‟ beliefs can be considered as a manifestation of belief protected by
Article 9 ECHR.43 Hence, according to this jurisprudence, in order to determine whether a practice
is protected by Article 9 ECHR, the interpreter needs to evaluate whether a specific practice
embodies the ethos of the belief it is built upon.
An inquiry into the correspondence between the manifestation of freedom of religion and
religion itself is not unknown in the framework of EU law either. For instance, Directive 2000/78
on equal treatment in employment accepts derogations to its non-discrimination provisions in the
cases when, by reason of the nature of the activities performed by a person, his/her belief constitutes
a genuine, legitimate and justified occupational requirement, “having regard to the organisation's
ethos”.44 Directive 2011/95/EU seems to echo the Arrowsmith jurisprudence more clearly, since it
affirms that it protects forms of personal or communal conduct based on or mandated by any
religious belief. 45 Similarly, Directive 93/119/EC on the protection of animals at the time of
slaughter refers to the methods of slaughter required by certain religious rites. 46
Such inquiry into the correspondence between a belief and its manifestation appears to be
effective, insofar as it allows public authorities not to give protection to initiatives that are not
related to religion or belief. However, this heteronymous determination of manifestation of religion
or belief may bring the Court close to adjudication on whether a particular practice is formally
required by a religion, that is to say a typically theological issue.47 Hence, the Court may restrain
the doctrinal autonomy of religious organisations, by questioning their interpretation of religious
practices. Obviously, such interference is likely to affect mainly religious minorities, since the
practices of mainstream religions are well known.
This restrictive approach to the definition of the manifestation of religion or belief seems to have
been partially abandoned by the ECtHR in Leyla Sahin v Turkey:48 in this judgement, the Court
appeared to implicitly accept the applicant‟s view as to the religious nature of the practice. 49 The

42
Cf. M. Introvigne, „Religion as claim: social and legal controversies‟, in J. G. Platvoet and A. L. Molendijk, The
pragmatics of defining religion: context, concepts and contests, BRILL 1999, pp. 41-72, at p. 72.
43
No. 7050/75, 16 May 1977, D.R. 8, p. 123.
44
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation, OJ L 303 , 02 December 2000, pp. 16-22, Article 4.
45
Directive 2011/95/EU, OJ L 337, 20 December 2011, pp. 9–26.
46
Council Directive 93/119/EC of 22 December 1993, OJ L 340 , 31/12/1993, pp. 21–34, Article 5.
47
Cf. Bratza, op. cit., p. 260.
48
Leyla Sahin, no. 44774/98, Reports 2005-XI, 29 June 2004.
49
Leyla Sahin, cit. supra, par. 71; see also Ahmet Arslan v Turkey, no. 41-135/98, 23 February 2010, par. 35. However,
the potentialities of this jurisprudence probably should not be overestimated, because the religious nature of the practice
was accepted by both the applicant and the defendant States; See Leyla Sahin, par. 38.

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pending case Eweida and Chaplin v UK may further clarify the ECtHR‟s approach.50 In this case
the Court will have to determine whether the defendant State interfered with the applicants‟
freedom of religion by allowing their employers to sanction them because of their choice to visibly
wear a crucifix. Hence, the Court will need to specify whether the visible wearing of a cross
amounts to a manifestation of religion or belief.
In this case, the Court may fully acknowledge the doctrinal autonomy of religious organisations,
by deciding that the consistency between a practice and the corresponding belief is determined by
religious organisations, and not by their followers. National tribunals followed this approach in
Eweida, and they concluded that, since wearing a cross in a visible manner is not part of the
doctrine of any Christian church, it is not a manifestation of religion or belief.51
Notwithstanding its merits, such approach is criticisable, since it is not supported by the letter of
the ECHR, whose Article 9 refers to one’s religion or beliefs, and which does not subordinate their
manifestation to the prescriptions of any organisation. On the contrary, the Court may further
develop the solution it sketched in Leyla Sahin, thus fully acknowledging the relevance of personal
views in this area, even if this implies a relative disregard for the views of religious organisations
and their autonomy.

3.3. Assessing the legitimacy of beliefs

The last controversial aspect of doctrinal autonomy addressed in this contribution concerns the
assessment of the legitimacy of religious doctrines. The capacity of religious organisations to decide
upon and administer their internal religious affairs would be hampered if public authorities
denigrated the doctrines that regulate their management. Consistently with this view, the ECtHR
held that public authorities cannot discretionally determine whether religious beliefs or the means
used to express such beliefs are legitimate.52
Nonetheless, the ECtHR allowed for the evaluation of the legitimacy of religious beliefs in some
cases concerning Islam and new religious movements. In the Refah Partisi judgement the Court
affirmed that the dissolution of a Turkish party advocating the application of sharia, eventually
through the recourse to force, was compatible with the ECHR, because the objectives of the party
could not be reconciled with the “fundamental principles of democracy”.53 This judgement has been
criticised because it implies that sharia as such is contrary to the principles of secularism and
equality.54 However, in this case the evaluation of the beliefs of the applicant has, at least, the merit
of relying upon a rather accurate analysis of the actions of the applicant‟s leaders and the positions
they embrace.55
In other judgements, the ECtHR did not even try to reconstruct the applicants‟ belief. In its
jurisprudence on the Islamic scarf, the ECtHR held that one of the arguments that support the
necessity of the ban against this symbol is the impossibility to reconcile it with core European

50
No. 48420/10 and 59842/10, lodged on 10 August and 29 September 2010.
51
Cf. Eweida v British Airways Plc EWCA [2010] Civ 80, 12 February 2010, par. 8.
52
Hasan and Chaush v. Bulgaria, cit. supra, par. 78.
53
Refah Partisi and others v Turkey [GC], no. 41340/98, 41342/98, 41343/98 and 41344/98, Reports 2003-II, 24
February 2003; see in particular par. 119 and 123. Notice that the Court considers that the mere fact of defending sharia,
without calling for violence to establish it, cannot be regarded as “hate speech”, cf. Case of Gündüz v. Turkey, no.
35071/97, 14 December 2003, Reports 2003-XI, par. 51. For a discussion of these cases, see P. Manzini, „libertà di
espressione e sentimento religioso nella civiltà giuridica europea‟, in G. Gozzi and G. Dongiovanni, Popoli e civiltà:
per una storia e filosofia del diritto internazionale, Il Mulino, 2006, pp. 123-153, at pp. 144-150.
54
K. Meerschaut & S. Gutwirth, „Legal pluralism and Islam in the scales of the European Court of Human Rights : the
limits of categrorical balancing‟ in E. Brems, Conflicts between fundamental rights, Intersentia, 2008, pp. 431- 465 at p.
439. See also F. Tulkens, „The European Convention on Human Rights and Church-State relations: pluralism vs.
pluralism‟, in Cardozo Law Review, vol. 30 no. 6, pp. 2575-2591, at p. 2588.
55
Cf. Refah Partisi v. Turkey, cit. supra, par. 101.

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values such as tolerance and non-discrimination. 56 Hence, not only did the Court affirm that
extremist beliefs are not compatible with democracy, but it assumed that religious practices such as
the wearing of the Islamic scarf embody such beliefs.57
Similar assumptions characterise the jurisprudence on new religious movements. In Leela
Förderkreis E.V. and Others v. Germany, the Court acknowledged that Member States are
forbidden from depicting a religious group in a defamatory manner.58 However, a Member State can
name a religion as “sect” , even if this definition has a pejorative note, when it seeks to provide
information capable of contributing to a debate in a democratic society and to draw attention to the
dangers emanating from groups which are commonly referred to as sects. Apparently, neither the
defendant State nor the Strasbourg Court clarified which dangers were posed by the applicant‟s
organisation. 59
The ECtHR performed a similar assumption in a most recent case concerning a new religious
movement: Raëlien Suisse v Switzerland.60 Both the section and the Grand Chamber affirmed that
the defendant State could restrict the applicant‟s freedom of expression because its beliefs were
likely to be apologetic of paedophilia. Remarkably, the Court assumed the existence of such views
on the part of the applicant by accepting the allegations of the defendant State in this respect.61
As it is evident, by assuming the existence of non-democratic views on the part of believers, the
Court implicitly provides for an evaluation of the legitimacy of their religious beliefs. This
evaluation negatively affects the capacity of religious organisations to decide upon the most crucial
aspect of their internal affairs, that is to say their creed.
In summary, the ECtHR sometimes tolerates evaluations of the legitimacy of religious beliefs.
Arguably, this interference with the doctrinal side of religious autonomy is particularly criticisable
when the nature of such beliefs is not clearly identified.
The evaluation of the legitimacy of religious beliefs is not completely absent is the field of EU
law either, since the EU endorses, or rebukes, the beliefs of the religious organisations it interacts
with.
According to Article 17(3) TEU, the EU must maintain an “open, transparent and regular
dialogue” with churches and non-confessional organisations. Although Article 17(3) may seem to
embody the quintessence of religious pluralism and it echoes Article 11(2) TEU on the dialogue
with (the rest of) civil society,62 its implementation may entail a significant interference with the
doctrinal autonomy of religious organisations.
Article 17(3) TFEU is implemented in three ways. First, the Commission conducts informal
bilateral meetings with religious and non-confessional organisations upon request of the latter.
Second, the representatives of religions and non-confessional organisations set up „dialogue
seminars‟ with EU leaders and officials about specific themes. Third, the leaders of religious and
non-confessional organisations participate in high-level meetings with the Presidents of the
European Commission, the European Council and the European Parliament.
This practice is appreciated by some religious organisations, but it is criticisable. It may be
argued that the dialogue conducted by the Commission is not completely „transparent‟, as required
56
Cf. Leyla Sahin v. Turkey [GC], no. 44774/98, report 2005-XI, 10 November 2005, par. 111-115. See also Dahlab v.
Switzerland, no. 42393/98, Reports 2001-5, 15 February 2001.
57
Cf. the dissenting opinion of Judge Tulkens in Leyla Sahin, cit. supra, par. 10-12.
58
Leela Förderkreis v. Germany, no. 58911/00, 6 November 2008.
59
By contrast, the Court appear to reach a different solution in the case Kimlya and Others v. Russia, cit. supra, where
it noted that “at no point in the proceedings in the present case has it been alleged that the applicants – either as
individuals or as the religious group – engaged or intended to engage in any unlawful activities or pursued any aims
other than worship, teaching, practice and observance of their beliefs”, par. 101. On the prejudices against „sects‟ and
the dangers they allegedly pose, see A. Morelli, Lettre ouverte à la secte des adversaires des sectes, Labor, 1997,
particularly at pp. 67-68.
60
Raëlien Suisse v Switzerland, no. 16354/06, 14 July 2012 [GC], 13 January 2011 [Chamber].
61
Cf. Raëlien Suisse v Switzerland [GC], cit. supra, par. 72.
62
Article 11(2) TEU reads “the institutions shall maintain an open, transparent and regular dialogue with representative
associations and civil society”.

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by Article 17(3) TFEU, since the complete list of the Commission‟s partners is not published. This
dialogue is not completely „open‟ either:63 the Commission maintains relations with religious or
non-confessional organisations that “adhere to European values”.64 Moreover, the Commission does
not automatically accept the proposals for dialogue seminars it receives65 and, so far, it invited only
the representatives of the main five world religions to high level meetings.66
Such limited openness may appear to be logical, since the Commission cannot maintain a
dialogue with all religious groups. However, it restrains doctrinal autonomy: the Commission
assesses the legitimacy of religious beliefs by deciding which organisations may set up dialogue
seminars with the EU, by discretionally inviting some religious representatives to high level
meetings and, above all, by evaluating the compliance of religious organisations with European
values. Evidently, such interference with doctrinal autonomy is likely to affect only minority
religions, since the beliefs of majority groups are generally unchallenged, notwithstanding their
potentially controversial content.67
In practice, the Union is faced with a conundrum: it can neither interact with minority groups, as
this would imply an endorsement of their beliefs, nor disregard them, as this would imply an
evaluation of the legitimacy of their opinions, and an infringement of their doctrinal autonomy.68
This means that the Commission may be criticised by the groups that it considers not to „adhere to
European values‟69 as well as by the adversaries of the controversial groups that are admitted to the
dialogue. 70
63
It may be argued that the adjective „open‟ contained in Article17(3) TFEU refers also to the nature of the EU‟s
interlocutor. However, the adjective „open‟ may also refer to the content and modality of the dialogue, as noted by the
representatives of main Christian denominations, the COMECE and CSC, in their paper Article 17 of the Treaty on the
Functioning of the European Union, sent by Father P. Mazurkiewicz, General Secretary of COMECE, to the author.
The paper is available on the website of the EHF, www.humanistfederation.eu.
64
European Commission, Bureau of European Policy advisors, Dialogue with churches, religious associations and
communities and philosophical and non-confessional organisations http://ec.europa.eu/bepa/activities/outreach-
team/dialogue/index_en.htm, last visited on 24 May 2012. The same information was provided in the e-mail
communication from Katharina Von Schnurbein, , Adviser for the dialogue between European institutions and churches,
religious associations or communities as well as philosophical and non-confessional organisations, at the Bureau of
European Policy Advisors, within the European Commission, 26 April 2012.
65
So far, these seminars have been conducted mainly with Christian organisations, but also with Jewish, Islamic and
non-confessional representatives: the Commission does not automatically accept all the proposals for dialogue seminars
it receives. Indeed, the seminars concern only aspects falling within the competences of the EU, and relate to topics
relating to the main priorities of the Commission. Cf. comments of the Commission on a request for information from
the European Ombudsman - Complaint by Mr Pierre-Arnaud Perrouty, on behalf of the European Humanist Federation
(EHF), ref. 2097/2011/RA, p. 4, as sent by Katharina Von Schnurbein, in the e-mail cit. supra.
66
The participants to these meetings are invited by the President of the Commission. According to the Commission, the
invitees are selected in order to reflect the balance of religious organisations existing in Europe. Cf. e-mail
communication from Katharina Von Schnurbein, cit. supra.
67
Cf. Introvigne, cit. supra and Morelli, cit. supra. For the controversial compatibility of majority religions with
European values, cf. D. Pollock, „Article 17: Reasons for Concern‟, in N. Leustean (Ed.), Representing Religion in the
European Union: Does God Matter?, Routledge, 2012.
68
Some of these theoretical and practical shortcomings may persist even in the absence of Article 17(3) TFEU, since
the EU would interact with religious organisations in the context of the dialogue with representative associations and
civil society required by Article11 (2) TEU. However, the „special‟ nature of the dialogue required by Article17(3)
TFEU, as well as the highly visible modalities of its implementation, render the interaction with religious (and non-
confessional) groups particularly sensitive, as testified by a recent complaint filed with the EU Ombudsman by the
European Humanist Federation, concerning the setting up of a „dialogue seminar‟. See the letter of the European
Ombudsman to the European Humanist Federation of 15 November 2011, published on the EHF website,
www.humanistfederation.eu. See also „Atheists say EU privileging religious leaders over non-believers‟, 30 November
2011, euobserver.com.
69
For instance, the Neopagan federation claims to have seldom be invited by the Commission, e-mail communication to
the author from the International Coordinator for Pagan Federation International, of 27 April 2012.
70
For instance, the Japanese new religion Soka Gakkai is sometimes considered as a „sect‟ (in this sense, see M. J.
Guyard, Rapport fait au nom de la Commission d’enquete sur les sects, 22 decembre 1995, no. 2468), but it has already
cooperated with the European Commission, as affirmed by the Soka Gakkai International Office of Public Information,
in an email to the author, 1 May 2012. For a criticism of the involvement of „controversial‟ groups in the dialogue

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 In practice, however, such criticism is rather limited. This may be linked to the fact that the
Commission conducts a dialogue with a relevant number of organisations, but it does not publish
the list of its interlocutors: one can hardly criticise the Commission because it interacts with
controversial groups, when the identity of these groups is not even in the public domain. In
summary, the lack of transparency of this dialogue may compensate for the shortcomings entailed
by its limited openness.
It may be concluded that both EU institutions and ECHR bodies evaluate or allow for the
evaluation of religious beliefs, in certain circumstances. Such evaluation is particularly problematic
in the case of organisations that do not clearly endorse anti-democratic views. Several minority
movements are stigmatised because of their beliefs and practices: if European institutions joined the
ranks of their detractors, the autonomy of these groups would be seriously compromised. Hence,
although the interaction with, and the protection of, controversial groups may appear to be
„inappropriate‟ to some, 71 the interference with the legitimacy of religious beliefs of minorities
should be kept at a minimum.

4. Conclusion

This contribution addresses the autonomy of religious organisations by considering aspects related
to their internal management and issues concerning the formulation of their doctrines. It
demonstrates that both aspects of religious autonomy are protected by European law, even if this
protection cannot be absolute. On the one hand, religious autonomy is part of manifestation of
religion and it is consequently subject to limitations. On the other hand, its ubiquitous protection
would jeopardise the safeguarding of the rights of others.
Even if the practice of the EU is limited and the jurisprudence of the ECtHR is not completely clear,
it would seem that European institutions are aware of the relevance of religious autonomy and the
contradictions it raises in pluralistic societies. Hence, they generally address this issue in a
pragmatic manner, by trying to balance it against other rights and interests.
Nonetheless, the current practice raises two issues. First, the jurisprudence of the Strasbourg Court
on the autonomy of internal management of religious organisations is not completely
straightforward, and recent judgements may question the protection of the rights provided for in the
ECHR. Secondly, the doctrinal autonomy of religious minorities does not appear to be sufficiently
protected. The definition of belief and its manifestation adopted by European institutions may
deprive minority groups of the protection afforded by European instruments. In addition, the
assessment of the legitimacy of religious beliefs operated by European institutions may delegitimise
small and controversial groups and hamper their doctrinal autonomy.

performed by the Commission, see M. Rynkowski, „Remarks on ArticleI-52 of the Constitutional Treaty: New Aspects
of the European Ecclesiastical Law?‟, in German Law Journal, vol. 6 n. 11, pp. 1719-1730, at p. 1726.
71
Cf. the opinion expressed by Rynkowski, cit. supra: “since there is no definition of „sect‟ some „new religious
movements‟ are present during meetings, even those concerning combating illegal activities of sects. There is no legal
reason for not inviting them, but their presence seems to be inappropriate.”

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