Federal Constitutional Court - Press office -

Press release no. 60/2009 of 16 June 2009

Order of 12 May 2009 – 2 BvR 890/06 –

Provision on state financial advancement of Jewish communities
in Brandenburg unconstitutional 


Under the terms of the Agreement between the Land Brandenburg and the 
Jewish Community, Land Brandenburg (Vertrag zwischen dem Land 
Brandenburg und der Jüdischen Gemeinde – Land Brandenburg) of 11 January 
2005, the Land (state) Brandenburg contributes €200,000 annually to the 
Jewish Community in Brandenburg for the maintenance of Jewish community 
life. Article 8.1 of the Agreement provides for the amount to be 
administered by the Land Association of Jewish Communities, Land 
Brandenburg (Landesverband der Jüdischen Gemeinden – Land Brandenburg), 
which is a public corporation and is the Jewish religious community in 
Brandenburg with the most members, on behalf of all of the Land’s Jewish 
communities irrespective of whether or not they belong to the Land 
Association. The Land Association is obliged to give a reasonable share 
of the amount to all communities. In addition, the Agreement grants the 
Land Association certain privileges, among others, in relation to public 
holidays, pastoral care in institutions, the operation of schools and 
cemeteries, exemptions from fees as well as in relation to the 
availability of broadcasting time on public radio. 

In Brandenburg, there is apart from the Land Association, a registered 
association called the Law-Abiding Jewish Land Community of Brandenburg 
(Verein Gesetzestreue Jüdische Landesgemeinde Brandenburg), which does 
not share the religious convictions of the Land Association and 
therefore does not belong to it. On the contrary, the two religious 
communities are rivals. After the Agreement was concluded, the Land 
Association did not initially give the Law-Abiding Jewish Land Community 
a share of the funds provided by the Land. Only since December 2007 has 
the latter retrospectively received a monthly amount of €1,020 which is 
payable also for the future. 

In their constitutional complaint the Law-Abiding Jewish Land Community 
of Brandenburg and one of its members object directly to the provisions 
of the Agreement in conjunction with the Act Approving the Agreement 
(Zustimmungsgesetz) passed by the Brandenburg Landtag (parliament). They 
contend that their fundamental rights have been violated since the 
Agreement excludes them from a direct right to a grant from the Land 
Brandenburg and, in addition, also excludes them from the other 
privileges which it contains. 

The Second Senate of the Federal Constitutional Court decided that the 
provision on the allocation of funds by the Land Association in Article 
8.1 of the Agreement was not compatible with those aspects of the 
fundamental right to freedom of religion which affect grants and the 
right to participate in grants contained in Article 4.1 and 4.2 of the 
Basic Law (Grundgesetz – GG) in connection with the requirement of 
impartiality that can be derived from the rule of law principle embodied 
in Article 20.3 of the Basic Law and that the provision was therefore 
void. For the past and until such time as there is a new law, the Land 
Brandenburg is obliged to allocate funds to the Law-Abiding Jewish Land 
Community of Brandenburg for its advancement, which take into account 
the amounts already given to it by the Land Association and which 
measured against the amount contributed to the Land Association, 
establish parity between the two organisations. 

The constitutional complaints are inadmissible insofar as they object to 
other provisions of the Agreement. 

In essence, the decision is based on the following considerations: 

The fundamental right to freedom of faith in Article 4 GG guarantees 
inter alia freedom of religious association, i.e. freedom to form a 
religious society on the basis of a common faith. In this connection, 
funding is highly significant for the freedom of religious societies to 
exercise their religion. It is true that a right to receive specific 
state grants cannot be derived from Article 4 GG, however as far as the 
financial advancement of religious societies is concerned there are 
aspects of Article 4 GG that relate to grants and the right to 
participate in grants. They can also oblige the state to make 
organisational arrangements. In this connection, it is also necessary to 
take into account the requirement of neutrality imposed on the state as 
regards religious and ideological creeds. 

If the state delegates the task of allocating to religious societies the 
funds which it has already made available, it must in addition comply 
with the requirements of the rule of law principle. It is evident from 
the rule of law principle that those entrusted with a task may only to a 
limited extent make decisions that affect them personally. It is true 
that the case-law has not yet recognised the existence in other legal 
areas of a general requirement of impartiality on the part of the 
administration and the officials representing it. In any case, in the 
area of financial advancement of religious societies by the state that 
is impacted by Article 4 GG, the state is, however, obliged to ensure 
that structures are not put in place which could endanger the content of 
Article 4 GG. The delegation of the task may not lead to a situation in 
which the religious society entrusted with the decision-making task is 
itself a subject of fundamental rights with an entitlement and is as a 
rule called upon to decide a matter in respect of which another possibly 
competing religious society can assert the same entitlement under the 
Basic Law. This kind of conflict of interest, which is at the same time 
associated with a dependency that negatively affects the other religious 
society concerned, prevents the realisation of the fundamental right in 
Article 4 GG. 

On the basis of its historical development and its spirit and purpose, 
the challenged provision should be understood as having been intended to 
provide a conclusive arrangement covering the advancement of Jewish 
communities in Brandenburg whereby additional claims by Jewish 
communities against the Land would be excluded. The aim was to relieve 
the Land of the responsibility for ensuring that the funds were 
equitably distributed and to limit the funds for the Jewish communities 
to the contractually agreed amount. As a consequence, the Land 
subsequently persistently refused to accept its responsibility towards 
the Law-Abiding Jewish Land Community of Brandenburg by making reference 
instead to the contractual agreement. 

The challenged provision is not constitutionally unobjectionable because 
the Land Association was acting on its own behalf in connection with the 
allocation of funds. Although the funds are initially allocated in full 
to the Land Association, they do not become completely subject to its 
right of self-determination pursuant to Article 137.3 of the Weimar 
Constitution (Weimarer Reichsverfassung – WRV) in conjunction with 
Article 140 GG, since such right cannot encompass the exertion of legal 
influence on the internal sphere of another religious society. 

The challenged provision violates the Law-Abiding Jewish Land 
Community’s fundamental right in Article 4.1 GG because entrusting the 
Land Association with the task of passing on the funds provided by the 
Land places it in a position in which it as an institution is open to 
bias. The Land Association is itself a subject of fundamental rights 
with regard to the Land. Since the Agreement leaves the decision as to 
the amount of the funds that it will pass on entirely in the hands of 
the Land Association, the Association is obliged to set the limits on 
its own entitlement itself. In this connection, it must also be taken 
into account that the Land Association has a strong self-interest in the 
funds. The fact that the challenged provision places the Law-Abiding 
Jewish Land Community in a position of dependence in relation to the 
Land Association is also incompatible with the requirements of state 
neutrality and of an administrative organisation in a state governed by 
the rule of law. 

The violation of the fundamental right determined by the Court only 
relates to entrusting the Land Association with the task of 
administering the funds already provided by the Land and the task of 
giving all Jewish communities a share in it; no constitutional 
objections exist as regards the grant of funds to advance and develop 
Jewish community life. There is no need and no reason to extend the 
nullification of the entrustment of the Land Association with the 
administration of the funds to other provisions. 


This press release is also available in the original german version.