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Provision on state financial advancement of Jewish communities in Brandenburg unconstitutional

Press Release No. 60/2009 of 16 June 2009

Order of 12 May 2009
2 BvR 890/06

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.