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Awarding the status of a public corporation to religious communities by parliamentary statute of a Land violates the principle of separation of powers
Press Release No. 59/2015 of 11 August 2015
Order of 30 June 2015
2 BvR 1282/11
In a decision published today, the Second Senate of the Federal Constitutional Court declared Art. 61 sentence 2 of the Bremen constitution to be void and thereby in part granted a constitutional complaint of the religious community “Jehovah’s Witnesses in Germany”. It pertains to the Laender (federal states) to determine whether religious communities must upon application be awarded the status of a corporate body under public law (Körperschaft des öffentlichen Rechts). By assigning the task of performing this determination to the Bremen parliament, Art. 61 sentence 2 of the Land constitution violates the principle of separation of powers (Art. 20 sec. 2 sentence 2 of the Basic Law, Grundgesetz – GG). Conducting the legislative process in violation of the Basic Law violated the complainant’s fundamental rights from Art. 4 secs. 1 and 2 GG in conjunction with Art. 140 GG and Art. 137 sec. 5 sentence 2 of the Weimar Constitution (Weimarer Reichsverfassung – WRV). Justices Voßkuhle, Hermanns and Müller submitted a joint separate opinion.
Facts of the Case and Procedural History:
The complainant is the religious community “Jehovah’s Witnesses in Germany”, which wishes to obtain the status of public body in the territory of the Free and Hanseatic City of Bremen (Freie Hansestadt Bremen). Inter alia, this status encompasses the right to levy taxes, autonomy in terms of organisation and internal law-making as well as the ability to conclude employment contracts under public law (Dienstherrenfähigkeit). In state practice, the first award of the status of public body in a Land is followed by so-called secondary award proceedings in the other Laender.
The complainant was first awarded the status of public body in Berlin in 2006. This award was preceded by court proceedings in which inter alia the Federal Constitutional Court in its judgment of 19 December 2000 (BVerfGE 102, 370 et seq., Entscheidungen des Bundesverfassungsgerichts – Decisions of the Federal Constitutional Court) specified the conditions under which religious communities may obtain the status of public body. To date, secondary awards have followed in 12 of the remaining 15 Laender. Proceedings in North Rhine-Westphalia have not yet been concluded; administrative court proceedings in Baden-Württemberg have been stayed pending the conclusion of proceedings before the Federal Constitutional Court. Contrary to the other Laender, the Bremen constitution (Landesverfassung von Bremen – LV-Bremen) in Art. 61 sentence 2 provides for the status of public body being awarded by the Bremen parliament in the form of a formal law. On 12 May 2011, the Bremen parliament rejected a bill introduced by the Bremen government, which would have awarded the status of public body to the complainant. This decision is challenged by the constitutional complaint, which also indirectly challenges Art. 61 sentence 2 LV-Bremen.
Key Considerations of the Senate:
The constitutional complaint is partly well-founded.
1. Apart from the requirements expressly mentioned in Art. 137 sec. 5 sentence 2 WRV, religious communities, in order to be awarded the status of public body, must fulfil further, unwritten requirements (cf. BVerfGE 102, 370). They must abide by the law, meaning that inter alia they need to guarantee that their future conduct will not endanger the fundamental principles of the Constitution as described in Art. 79 sec. 3 GG, the fundamental rights of third parties, nor the basic principles of the law of religion (Religionsrecht) and of the state law on churches (Staatskirchenrecht). If these requirements are fulfilled, the applicant religious community has a constitutional right to be awarded the status of public body. The duty to remain neutral in ideological and religious matters (Pflicht zu weltanschaulichen Neutralität) bars the state from judging a religious community’s faith and its teachings per se; however, faith and teachings may permit predictions as to the religious community’s future conduct.
2. The determination of whether the requirements are fulfilled pertains to the Land in which the religious community wishes to exercise the rights associated with the status of public body.
a) By awarding the status of public body to religious communities pursuant to Art. 4 secs. 1 and 2 GG as well as Art. 140 GG in conjunction with Art. 137 sec. 5 sentence 2 WRV, the Laender do not execute federal law in the meaning of Art. 83 GG. The Court need not decide whether provisions of the Basic Law can at all be regarded as federal law within the meaning of Art. 83 GG. For such a classification would require a federal competence that does not exist for the field of the state law on churches. Art. 140 GG in conjunction with Art. 137 sec. 5 sentence 2 WRV contains no attribution of competence. Insofar, the provision is not different from Art. 5 sec. 1 sentence 2 GG or from Art. 8 sec. 1 GG, which also establish federal guarantees of fundamental rights – of the freedom of broadcasting and of assembly – but are irrelevant for the federal distribution of competences. Thus, in order to guarantee the constitutional right, it pertains to the Laender, pursuant to Art. 140 GG in conjunction with Art. 137 sec. 8 WRV, to conceive Land legislation to further shape the procedure for awarding the status of public body.
b) Despite the previous first award of status, the Constitution does not hinder the Free and Hanseatic City of Bremen from performing secondary award proceedings concerning the complainant and from executing an independent power of review. The standard for such review is formed exclusively by the written and unwritten requirements for the constitutional right under Art. 4 secs. 1 and 2 and Art. 140 GG in conjunction with Art. 137 sec. 5 sentence 2 WRV. Insofar, the contents of the decision to award the status of public body depends on whether the requirements are fulfilled (gebundene Entscheidung) and leaves the Laender without discretion.
aa) State practice as well as the prevailing opinion in jurisprudence and legal scholarship require that the status of public body be independently awarded to religious communities in each Land. Although the first award entails legal consequences even outside the awarding Land, because the legal personality that comes with the status of public body has nationwide effect, and legal consequences from this personality that ordinary federal law might provide for may also have nationwide effect, the initial award does not enable the public body to exercise state powers or privileges granted by ordinary Land law outside of the awarding Land. At least the right to levy taxes stemming from Art. 140 GG in conjunction with Art. 137 sec. 6 WRV, the ability to conclude employment contracts under public law as well as the authority to dedicate public objects (Widmungsbefugnis) must be regarded as such state powers.
bb) This limitation of the legal effect of the initial award corresponds to the federal distribution of competences. The Land Berlin cannot vest the complainant with state powers that extend beyond its own territory. Only such effects of the award may extend beyond a Land’s territory that do not inhibit the other Laender from exercising control over the exercise of state power within their territory.
The limitation of the legal effect of the award is also justified by the particularities of the status of public body under the state law on churches. Whether the complainant may exercise state power on the territory of the Land Bremen cannot be made dependent on factual and legal evaluations performed by the Land Berlin. This holds particularly true for the evaluation of whether it is guaranteed that the complainant will abide by the law. This requirement serves to prevent the privileges linked to the status of public body from being abused. The Free and Hanseatic City of Bremen must be permitted to prevent such abuse by performing its own evaluation since any exercise of Land state power on its territory will be attributed to it.
Whether the requirements for awarding the status of public body are met must be determined by examining the organisation as such. In particular, one will usually not be able to answer the question of whether the organisation guarantees that it will abide by the law by looking at individual regions. The duty to act Federation-friendly (Pflicht zu bundesfreundlichem Verhalten) therefore bars the Laender from performing their evaluations completely independent of the results obtained in other Laender. Such results must be appropriately considered. However, this way of involving the other Laender cannot replace secondary award proceedings.
3. Art. 61 sentence 2 LV-Bremen requiring that the status of public body be awarded by way of formal law violates the principle of separation of powers (Art. 20 sec. 2 sentence 2 GG), because it permits the Bremen parliament to pass laws that apply to individual persons. This provision also violates the complainant’s right to effective legal recourse.
a) Without compelling reasons, Art. 61 sentence 2 LV-Bremen places a power functionally pertaining to the executive branch in the exclusive competence of the legislature, the Bremen parliament. Awarding the status of public body to a religious community constitutes an act of executing the Constitution by making a decision the contents of which depend on whether the requirements are fulfilled. In determining whether the requirements are fulfilled, the Bremen parliament performs an isolated executive function: If the requirements are met, the application must be granted, if not, it must be denied. Contrary to what usually follows from the legislature’s general political leeway, there is no room for discretion.
b) The contradiction between Art. 61 sentence 2 LV-Bremen and the principle of separation of powers (Art. 20 sec. 2 sentence 2 GG) results in the provision being unconstitutional. Illegally denying a religious community that relies on its right under Art. 4 secs. 1 and 2 as well as Art. 140 GG in conjunction with Art. 137 sec. 5 sentence 2 WRV the status of public body constitutes an infraction of interests protected by fundamental rights. At the same time, such denial indirectly limits the possibilities of legal recourse against the infraction of the freedom of religion under Art. 4 secs. 1 and 2 GG. While acts or omissions of the executive branch can be challenged before the respective regular courts, the only legal recourse against infractions directly effected by laws of parliament or by their absence is a constitutional complaint.
4. Since already the abstract design of the procedure fails to comply with the Constitution, the Court need not determine whether the way the procedure was applied violated the complainant’s fundamental rights. Therefore, the constitutional complaint is unsuccessful insofar as the complainant claims a violation of its rights by parliament’s rejection of the bill.
Separate Opinion of Justices Voßkuhle, Hermanns and Müller
The Senate majority fails to acknowledge that the Constitution does not require constitutive secondary recognition of religious communities in each Land in order for them to be able to exercise the state powers that come with the status of public body.
1. The right of religious communities under Art. 140 GG in conjunction with Art. 137 sec. 5 sentence 2 WRV to be awarded the rights of a public body is part of substantive federal law, which pursuant to Arts. 30 and 83 GG must be executed by the Laender as if it were their own (als eigene Angelegenheit). Considering that the legal entitlement, which depends only on whether the requirements are met, follows directly from federal constitutional law, no additional written competence is necessary in order for the Federation to be able to pass regulations. Moreover, since the requirements for awarding the status of public body are exhaustively regulated, there is no competence for making further specifications on the part of the Laender. It follows that awarding the status of public body is a Land act with nationwide effect. It is irrelevant that the wording of Art. 83 GG applies only to “federal laws”. There are no evident reasons why this term should include only formals laws and regulations but not enforceable substantive entitlements from the Basic Law. This conviction is not altered by the Senate majority’s comparison with the freedom of broadcasting and of assembly. The comparison does not fit, as the referenced fundamental rights require further specification, meaning that – without deciding on competence – they bind such entities that regulate broadcasting and the holding of assemblies.
2. Measured by these standards, artificially dividing the award procedure into a decision on legal personality under public law – which according to the Senate majority shall have nationwide effect – on the one hand, and the award of the privileges coming with it – which shall depend on constitutive decisions in each Land that, in a way, fill an empty legal shell – on the other hand, does not comply with the Constitution.
It is obvious that the two-step award procedure under Art. 140 GG in conjunction with Art. 137 sec. 5 sentence 2 WRV favoured by the Senate majority results from efforts to reinforce the sovereignty of the Laender and to underline their independence in the field of the articles of the Weimar Constitution incorporated into the Basic Law by Art. 140 GG. However, the single-step concept is not only mandated by the distribution of competences but also adequately protects the sovereignty of the Laender. Although most of the privileges resulting from the status of public body have already been determined by federal law, be it by provisions of the Constitution, be it by ordinary federal law, the Laender are free to conceive additional privileges that apply within their territory. The interests of the other Laender are adequately taken into account. As far as procedure is concerned, this follows from the involvement of the Laender in the award procedure, and for the content of the award decision, it results from the fact that the entire federal territory must be considered when examining whether the unwritten requirement that the organisation guarantee that it will abide by the law is fulfilled. Lastly, the possibility of revoking the status of public body prevents the other Laender from being irreversibly bound by an award decision.