Collective versus Individual Rights. The Case Law of the European Court of Human Rights in the German Religious Labour Law Cases
Essay 2015 11 Pages
2 Community and Loyalty
3 Valid Employer Expectations of Employee Loyalty
4 Private Life vs. Freedom of Religion?
5 Concluding remarks
Abstract: Religious organizations which operate hospitals, kindergartens and other institutions are important employers. This is particularly the case in Germany, where institutions related to Christian groups, including the united evangelical regional churches and the Catholic church are the second most important employer after the public sector. At the same time is there a sense of increased secularization. This can lead to situations in which employees, while willingly employed by a religiously motivated organization, openly defy key rules of this religious group, e.g. when it comes to issues such as divorce or homosexuality. In the last years, a number of cases have made it through the court system in Germany and eventually to the European Court of Human Rights. By looking at some of these cases and the wider case law of that Court, this article is aimed at providing the reader with an overview over the topic but also with an answer to the question how the European Convention on Human Rights, which allows for a wide range of legal models concerning the relationship between the state and organized religions, Keywords: religion, church, human rights, freedom of religion, collective rights, European Convention on Human Rights, morals, labor law, employment.
Europe is home to a range of different religions, but even in times of secularism, established faiths continue to play important roles in different European countries. At the same time is the constitutional and legal regulation of the relationship between the state and organized religion differs widely between different European countries. Among the 47 states which have ratified the European Convention on Human Rights1 (ECHR) are secular states such as France which have a strict separation between church and state, a formally secular state like Turkey which, under the current government, moves away from the former strict separation which has long characterized modern Turkey, but also states such as Germany where the state and organized religion cooperate on a number of issues, such as religion-related education in public schools, states which are widely secular but where one religion enjoys a particular status, which is the case in the Nordic countries and, somewhat differently, Russia, and states which undergo shifts in the religious composition of the population, such as the United Kingdom, the Netherlands or Germany. It is recognized that the European Convention on Human Rights is wide enough to accommodate the different existing legal systems across Europe.
In Germany, the collective dimension of freedom of religion has long been recognized. Indeed, this is a remnant from the Weimar Constitution (Weimarer Reichsverfassung, WRV)2 which has been transferred to the 1949 Basic Law, the Grundgesetz (GG)3 through Article 140 GG.4 Essentially, German law gives religious community which are sufficiently organized, without discrimination as the ‘origin’ or number of members (although in practice an extremely small religious community might lack the necessary level of organization), the opportunity to gain a particular status under German public law. Such a public law status does not turn the religious organization into a public authority.5
This opens the door to e.g. state support in the manner of financing through the Church tax system and offers of religious education in public schools in the states in which this is offered (the constitutional competence for education issues rests with Germany’s sixteen federal states6 ).
A religious community’s right to self-determination is part of the collectively enjoyed freedom of religion7 and such groups’ nature as collective is also recognized under German law when it comes to their role as employers. Churches or organizations which are closely related to churches operate a large number of charitable institutions, hospitals etc. and if they were one entity they would be Germany’s second largest employer (after the public sector). While there is some charity work by non-Christian groups, Christian organizations remain dominant in this regard in Germany, despite a secularization and a significant atheist section of the population since the reunification of Germany in 1990.
Religious groups have an obvious interest in hiring members of their own faith. While this is fairly obvious when it comes to specific ritual posts, the situation becomes more complicated when a religious organization takes the place of a regular employer. German labour law includes a legally protected expectation on the part of the employer that the employee will be somewhat loyal to the employer. But how far does this loyalty have to go While it can be expected that a priest in the Catholic church adheres to the teachings from Rome, it can be asked if a physician in a church-run hospital has to be a member of the church, too, let alone somebody who has support functions and does not necessarily represent the employer towards third parties, such as cleaning staff. Given the large number of work contracts, in practice there seems to be a working balance based on the importance of the particular employee’s role for the religious employer. But every now and then there are conflicts which are legally relevant. In the last years, some of these cases have reached the European Court of Human Rights. This raises the question as to how the European Convention on Human Rights sees the exception in German labour law which allows religious communities to hold their employees to higher standards, which otherwise would be incompatible with equality norms? After all, the employee does not give up his or her freedom of religion or right to private life by entering into a work contract — neither does the religious employer stop being religious in nature only by engaging in activities which could also be undertaken by a commercial actor. Indeed, the German Federal Constitutional Court (the Bundesverfassungsgericht) already in one of its early cases held that potentially commercial activities can be covered by the freedom of religion.8
In this short article the case law of the European Court of Human Rights in this regard will be described and it will be shown that there are very fundamental notions which justify Strasbourg’s protection of collective rights.
2 Community and Loyalty
In the cases Schüth v. Germany,9 Ahtinen v. Finland10 and Sincidatul Pǎstorul cel bun v. Romania,11 the European Court of Human Rights held “that under the Convention, an employer whose ethos is based on religion may impose special duties of loyalty on its employees. It also acknowledges that when signing their employment contract, employees bound by such a duty of loyalty may accept a certain restriction of some of their rights”.12 This is also important from the perspective of collective rights of religious communities and the relationship between the state and organized religion.13
In the aforementioned case against Romania, the joint dissenting opinion of judges Ziemele and Tsotsoria provides a good summary as to why the collective rights of religious communities are important:
“The Court has repeatedly stated that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups […]. It has also acknowledged that participation in the organisational life of the community is a manifestation of one’s religion, protected by Article 9 of the Convention. For these reasons, the Court has held that under Article 9, interpreted in the light of Article 11, the right of believers to freedom of religion encompasses the expectation that the community will be allowed to function free from arbitrary State intervention in its organisation. 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 of the Convention affords. Were the organisational life of the community not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable […].”14
1 European Treaty Series No. 5.
2 Verfassung des Deutschen Reiches [Consitution of the German Empire], 11 August 1919, Reichsgesetzblatt [Imperial Gazette] 1919, pp. 1383 et seq., available online at <http://www.jura.uni-wuerzburg.de/fileadmin/02160100/Elektronische_Texte/Verfassungstexte/Die_Weimarer_Reichsverfassung.pdf> (last visited 20 April 2015).
3 Grundgesetz [Basic Law], 23 May 1949, Bundesgesetzblatt [Federal Gazette] 1949, pp. 1 et seq., available online at <http://www.gesetze-im-internet.de/bundesrecht/gg/gesamt.pdf> (last visited 20 April 2015).
4 According to this norm, Articles 136, 137, 138, 139 and 141 of the Imperial Constitution of 1919 are part of the 1949 Basic Law, which is why the texts of these old norms are printed in a footnote to Article 140 of the Basic Law. They continue to be an integral part of German constitutional law.
5 European Court of Human Rights, Siebenhaar v. Germany, Application No. 18136/02, Judgment of 3 February 2011, para. 37
6 According to Article 30 of the Basic Law, the federal states have the right to legislate unless the Basic Law provides the Federal level with an explicit right to legislate on a specific matter.
7 Axel Freiherr von Campenhausen / Heinrich de Wall, Staatskirchenrecht - eine systematische Darstellung des Religionsverfassungsrechts in Deutschland und Europa - Ein Studienbuch, 4th ed., Verlag C.H. Beck, Munich (2006), p. 365.
8 Bundesverfassungsgericht [Federal Constitutional Court], Case No. 1 BvR 241/66, Decision of 16 October 1968, 24 Entscheidungen des Bundesverfassungsgerichts 236.
9 European Court of Human Rights, Schüth v. Germany, Application No. 1620/03, Judgment of 23 September 2010, para. 71.
10 European Court of Human Rights, Ahtinen v. Finland, Application No. 48907/99, Judgment of 23 September 2008, para.41.
11 European Court of Human Rights, Sincidatul Pǎstorul cel bun v. Romania, Application No. 2330/09, Judgment of 9 July 2013.
12 Ibid., para 79, with reference to the aforementioned cases Schüth v. Germany and Ahtinen v. Finland.
13 See also European Court of Human Rights, European Court of Human Rights, Schüth v. Germany, Application No. 1620/03, Judgment of 23 September 2010, para. 73; European Court of Human Rights, Obst v. Germany, Application No. 425/03, Judgment of 23 September 2010, paras. 48 and 51.
14 European Court of Human Rights, Sincidatul Pǎstorul cel bun v. Romania, Application No. 2330/09, Judgment of 9 July 2013, joint dissenting opinion of judges Ziemele and Tsotsoria, para. 2