The Story of “Article 17″: Opposing special rights for churches in the EU
EHF campaign 1997-2004
This is the story of the origins of the special treatment of religion and the churches in EU treaties, culminating in the obligation for the EU to engage in a regular dialogue with religious and non-confessional organisations.
It is the story of the churches’ campaign for these privileges and of the EHF’s long but unsuccessful campaign of opposition.
Fighting the institutionalisation of privileged relations between EU institutions and churches
Europe has a history of medieval domination by the Roman Catholic church in alliance with autocratic kings and emperors, of bitter wars of religion and nationalism, and of hard-fought struggle for personal liberty and freedom of thought and belief. Modern Europe enjoys the fruits of these struggles – the power of governments and churches is limited, personal freedom is largely guaranteed.
But dangerous ideologies, religious and political, still appeal to some people by their simplicity; and in many countries one church – usually the Roman Catholic Church – still has formal and informal power without any democratic accountability. Elsewhere the churches often crave for their lost power.
In a Europe where a large proportion of the total population has explicitly or implicitly rejected religion and where growing minorities follow non-Christian religions, it is wrong to revert to political arrangements that give a special position to the churches or to religion at large – or indeed even to religious and non-religious lifestances, however inclusive that might seem: politics and religion should be kept apart. Yet in most countries one or more churches is ‘established’ or has a privileged financial and/or institutional position; and as power moved from states to the EU, the churches were plainly determined to ensure that they obtained a similar position of influence in the European Union.
Appallingly, this is what the European Union has now done. It has agreed a Treaty that under which the European Commission:
(a) gives its blessing to concordats and other agreements which bestow huge privileges on the churches and
(b) gives privileged consultation arrangements to the churches – and to what it calls ‘philosophical and non-confessional organisations’ – of which the principal example appears to be the European Humanist Federation.
The wording of Article 17 of the TFEU is as follows:-
1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical and non-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.”
- We believe that the churches should take their place in the mainstream consultations with non-governmental organisations that are separately provided for (Article 11 of the TEU: ‘The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society’).
- We believe that the right to consultation should be based either on recognised special expertise or on democratic representation.
- We believe that these separate arrangements for the churches result from the historical tendency to unthinking deference they have always enjoyed, often to the disadvantage of the democratic wishes of the majority, and offer them considerable influence and advantage.
Fighting for equal treatment
When the EU regrettably agreed these separate consultation arrangements for churches and non-confessional organisations, the EHF had to decide whether to take up the possibility of consultation offered to it as a ‘philosophical and non-confessional organisation’.
We decided that it was right to do so, while making our principled objections clear: the alternative was to leave the churches an unopposed channel of influence at the highest level in the EU.
For some time we asserted a right to attend the annual meetings now held between the three EU Presidents – of the Council, the Commission and the Parliament – and representatives of not just a range of Christian churches but also of other religions – in May 2008, these included thirteen Christian dignitaries, four Muslims and four rabbis (Buddhism was represented at an earlier gathering).
If discrimination between religious and non-religious lifestances is debarred under the European Convention on Human Rights, why (we argued) should we be excluded from these annual high-level meetings? After all, they do not discuss religious topics but key policy issues such as (in May 2008) intercultural dialogue and climate change and (May 2009) ethics and economics. The result was that the Commission created a separate dialogue for non-confessional organisations – in which it has included numerous representatives of Freemasonry.
The Commission’s website, in the section on BEPA (the Bureau of European Policy Advisors to the Commission president) gives details of the “Dialogue with religions, churches and communities of conviction”. This page was extensively revised in 2008 following a complaint by the EHF about the pro-religious bias of some of its content – for the previous text (taken from a Google cached copy as at 30 January 2008) see note 2. The website lists events and – until summer 2008 – listed the 74 or more organisations – virtually all religious except the EHF – that are in dialogue with the EU. However, in summer 2008 the list of dialogue partners was removed and the EU Commission has resisted all pressure – from MEPs such as Veronique de Keyser and from the EHF among others – to reinstate it. There is therefore now a ‘transparent’ dialogue with religious organisations whose names are not known except from the attendance at particular events.
Before Article 17
Moreover, “Article 17″ meetings with the churches were started several years before even the Treaty was ratified. The EHF vigorously opposed these arrangements from the start:
- 1997: Amsterdam Intergovernmental Conference and first discriminatory arrangements
The EHF’s campaign against Article 17 of the Treaty on the Functioning of the European Union* (as prospectivly amended by the 2007 Lisbon Treaty) goes back to the preparation of the Amsterdam Intergovernmental Conference in 1997 which first adopted the discriminatory arrangements in favour of the churches that are now enshrined by the Lisbon Treaty.
When the EU proposed its Charter of Fundamental Rights we stressed the right to have, change or reject religious belief and the need for education to produce adults capable of independent thought and judgement (see, for example, our submission to the European Parliament in April 2000). Later that year we sought expressed opposition to proposed references in the Charter’s preamble to Europe’s religious heritage.
- 2001: EHF Memorandum on neutrality of European institutions
In May 2001, in a wide-ranging submission to the Belgian government in advance of its Presidency of the EU, we stressed that “The Europe that is being built is a Europe of cultural, ethnic, religious diversity” and that EU institutions needed to “safeguard the absolute independence of official bodies, of public services and of European legal activities” from churches and religious influences. We said that the decision whether or not to adopt a religion pertained to the private sphere of each citizen, that “each religion is free to organise as it wishes”, but we added that “we are very far from equality of treatment with respect to the material means put at the disposal of religious organisations by the States. Nowadays, many people have adopted a non-religious lifestance whereas most European States still behave as if they consider that all the citizens still belong to a religion.”
- 2002: the EU Constitution and the reference to Europe’s religious heritage
By January 2002 there was debate about whether the Preamble to the proposed EU Constitution should refer to Europe’s religious heritage or values, and the EHF submitted a memorandum asking for the EU to “guarantee the secular character of its institutions”. Anything less than neutrality on questions of religion or belief would be divisive, and the EHF “opposed the inclusion in the [constitutional] Treaty of Declaration 11 of the Final Act of the Amsterdam treaty according to which ‘the European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’, whose sole purpose is to preserve the privileges of certain Churches in the Member states.” After a meeting in Rome the following month, the EHF issued a call for strict neutrality of EU institutions on matters of religion or belief as the only guarantee for “equal dignity of all citizens” and “full respect for the freedom of religion and conscience”.
We enlarged on this in another paper the same month, rejecting in detailed arguments the idea that the EU should be concerned with religious matters. We also drew a distinction between churches as undemocratic institutions and ‘communities of conviction and of faith’ that might be legitimate partners for dialogue as organisations in civil society.
- 2003 : EHF campaign against specific provisions for the churches in the European Constitution
In March 2003 we submitted a new memorandum demanding:-
1. That in Title I of the constitutional Treaty, article 2 definitely stipulates that the Union rests on the following universal and non-negotiable principles: dignity of men and women, freedom, equality, solidarity and tolerance, and on the principles of democracy and rule of law;
2. That in Title II of the constitutional Treaty, article 6 ensures the right to freedom of thought, of conscience and religion, as well as the right to change religion or not to have a religion;
3. That the neutrality of the Union’s institutions be enshrined in Title IV, article 14 of the constitutional Treaty so as to ensure the absence of any discrimination against citizens without religious beliefs;
4. That no reference to transcendence or to the divinity be mentioned in the constitutional Treaty, in its preamble, or in any of its additional protocols;
5. That no particular status be granted to any church or religious authority by the constitutional Treaty;
6. That no structured consultation process of the Churches, nor any institutional relation with their hierarchical authorities regarding the Union policies be either instituted or provided for in the constitutional Treaty.
In April 2003 we issued a statement noting that 163 Members of the European Parliament had called for the respect for the principle of religious freedom and the secular nature of the state in the future European Constitution and calling for the scrapping of Article 37 (as it then was).
The Convention on the Future of Europe has devoted to the churches Article 37 of the future European Constitution, in Title VI of the draft that deals with the democratic life of the Union.
§1 –The European Union respects and does not prejudice the status under national law of the churches and religious associations or communities in the Member States.
§2 – The European Union equally respects the status of philosophical and non-confessional organisations.
§3 – The Union shall maintain a regular dialogue with these churches and organisations, recognising their identity and their specific contribution
Later that month we joined with the European network of the International Planned Parenthood Federation, the European Network – ‘Church on the move’, Right to Die – Europe and the European Association for Teaching to launch a petition to the Convention for the Future of Europe against the special position being proposed for churches. In June we issued a press release and held a press conference in the European Parliament to reveal that the petition has received the support of ‘more than 180 networks and organisations of most of the countries of the Union, representing several million citizens, as well as by a very large number of private persons’.
Meantime in May we had issued a briefing note that pointed out the contrast between the arrangements for consultation with non-governmental organisations representing civil society and those for the churches: ‘whereas the dialogue with civil society is required to take place with the representative associations and be open and transparent, no condition is imposed concerning the religious organisations, neither in terms of representativeness nor in terms of the openness and transparency of the dialogue.’ The last point was the only success we had in the campaign: later versions of the proposal inserted a requirement for the dialogue with the churches also to be open and transparent.
During this time the EHF sponsored or co-organised as many as 25 meetings in different countries. In October 2003 we organised with our member associations a campaign of letter-writing to national ministers seeking withdrawal from the draft Treaty of the Article yielding to the demand of Churches for direct intervention in the pre-legislative consultation procedure. We provided model letters in many languages and listed the names and addresses of relevant ministers in national governments.
On 5 November 2003 with our partner organisations from the petition we held another press conference in the European Parliament in Brussels with the help of Members of the European Parliament. This time we pointed to the ambitions of the Vatican in particular, and we said the proposed Article in the constitutional Treaty would ‘institutionalise the right of Churches to interfere in the institutions of the EU.
The neutrality of the State with regard to spiritual beliefs and commitments is the only guarantee of religious freedom and freedom of thought. No religion or religious group should be able to impose upon the whole of society its own conceptions of social life and organisation’. A press release announced a meeting on 3 December 2003 of a wide range of organisations opposed to the proposal.
Work continued on the campaign, but the draft treaty to establish an EU Constitution was unanimously adopted at the European Council in Brussels on 17 and 18 June 2004 and signed in Rome on 29 October 2004. Thereafter, although protests continued, it was apparent that little could be done to reverse the decision.
On 25 November 2004, we made a presentation to the European Parliament’s Committee on Constitutional Affairs. EHF spoke as follows:
“Let me thank the Committee on Constitutional Affairs and its President Mr. Jo Leinen on behalf of the European Humanist Federation (EHF) for giving us the opportunity to express ourselves on a few main themes of the Constitutional Treaty.
The European Humanist Federation, which unites the majority of humanist and secular associations in Europe, presented to the Convention on the future of Europe written contributions on many issues including democracy, public services, and the dignity and freedoms of citizens. We also set out our claim not only to equal respect but also for strict neutrality of the European institutions in relation to religious or philosophical convictions of individuals.
Europe is characterized by a social organization developed to serve citizens which came about in a group of countries that in the past had repeatedly made war on each other for a variety of pretexts – economic, cultural or religious. With the European Union, for the first time in their history, the member countries have experienced peace for over 50 years.
The EHF has noted with satisfaction the progress of the treaty and the inclusion of a charter of fundamental rights – rights based on values long defended by humanists and secularists and currently shared by the majority of people, such as freedom of conscience and religion, tolerance, equality between men and women.
In terms of democracy, we welcome the enhanced – but still inadequate – role given the only body directly elected by European citizens, the European Parliament. Representative democracy becomes meaningful only when it allows the elected representatives chosen by the citizens to fully play their role as legislators and controllers of the executive.
This opening to civil society through participatory democracy allows for citizens’ initiatives, but also aims to establish a “regular, open and transparent dialogue” in accordance with Articles 47 and 52. As an interested party so far as Article 52 is concerned in its capacity as a non-denominational organisation, the EHF considers that there is no case for holding separate dialogues between the parties designated by the two articles: they should be part of the same dialogue on the topics that concern them, in order in effect to hold an “open and transparent dialogue” with the whole of European civil society. The fact that there are two articles does not imply that separate dialogues should be organised. It only specifies which actors in civil society should be brought together. Their diverse characters make it all the more necessary that this dialogue with the European institutions should be undertaken jointly.
Finally, with regard to public services of importance to all, the EHF holds that it would be appropriate to establish a definition of matters of general interest that would benefit from special protection. It is in the interest of citizens that these services be safeguarded in member states, since they constitute an important factor in social cohesion.”
After the Constitution was rejected in referenda in France and the Netherlands, we wrote in May 2007 to the current and succeeding Presidents of the Council of Ministers, respectively Angela Merkel the German Chancellor and Jose Socrates Carvalho Pinto de Sousa the Prime Minister of Portugal asking them to exclude the Article from the proposed revising Treaty. However, when it was adopted in 2007 it incorporated the identical provisions we had fought so long and hard against from the start.
On November 28 2008 we wrote to the then current president of the EU Council, Nicolas Sarkozy of France, seeking a meeting after the churches had had their regular biennial meeting with the incumbent presidency of the Council. Our letter received no acknowledgement.
Our work to oppose church privilege in the EU continues. Visit our page on Dialogue with EU institutions.
* The Article in previous Constitution and Treaty drafts was variously Article 37, 51 or 52, briefly as 15B and then as 16C.
Note 1 – The Article in previous Treaty drafts was variously Article 37, 51 or 52 and briefly 15B and 16C. It is not Article 17 of the Lisbon Treaty but an article inserted by the Lisbon Treaty in the Treaty on the Functioning of the European Union.
Note 2 – The following is the text of the BEPA webpage that was taken down following EHF complaint, as retrieved on 30 Jan 2008 21:53:12 GMT [from Google cache]:
“Dialogue with religions, churches and communities of conviction :
Since the 1980s successive Presidents of the European Commission have felt it desirable to maintain a dialogue about European integration between Churches, Religions and Communities of conviction on the one hand and the European Commission on the other. The Bureau of European Policy Advisers is entrusted with this task. The benefits lie in better knowledge of the significance of European integration on the part of the religions and other communities of faith and conviction and in the light that they for their part are able to shed on contemporary political trends. A growing number of religious organisations have already appointed permanent representatives in Brussels for this work.
The European identity is composed of a large variety of languages, cultures, traditions and religions. “United in diversity” is the motto of the European Union (Treaty establishing a Constitution for Europe, Art. I-8), a proof that commonly shared values are the basis of our Union. Religious values play a very important role for the European citizens and consequently the European Union enjoys a spiritual dimension. The role of religions in building up a united Europe has been acknowledged in the Commission’s White Book on European Governance where is it stated that ‘Civil Society plays an important role in giving voice to the concerns of citizens and delivering services that meet people’s needs. Churches and religious communities have a particular contribution to make. (COM2001/428 final, page 14) Art. I-47 and I-52 of the Treaty establishing a Constitution for Europe take up this theme.
Art. I-47 ‘participatory democracy deals inter alia with the confessional, religious NGOs and members of civil society. Art. I-52 refers explicitly to the religions and churches as transcendental institutions with their specific religious component. For the first time in the history of the European integration process, religions and churches have been firmly acknowledged as partners of the European Union, specifically taking into account their transcendental character. Both articles are equally pertinent to the communities of conviction.
Due to the important role of our partners, the European Union has underlined in the Constitutional Treaty and in other documents the intention to maintain an open, transparent and regular dialogue with them. This dialogue has already been a long standing tradition for the European Commission, which will be codified by the Constitutional Treaty.
‘Open’ simply means that everyone interested in participating in and contributing to European integration policy is welcome to do so. No one is excluded. Declaration 11 annexed to the Treaty of Amsterdam and Art. I-52 (1) of the Constitutional Treaty assert that the European Union has no competence to define the church state relationship, neither on a national nor on a European level. The European Commission therefore accepts as dialogue partners all organisations recognised as churches, religious communities or communities of conviction by Member States of the Union.
‘Transparent’ means that everyone must have the chance to know at any time about the partners [LINK] aims and outcomes of the dialogue. The purpose of this site is to increase the transparency of the dialogue and to inform people about regular events and the latest developments.
‘Regular’ must be understood as permanent dialogue. On July 12, 2005 Commission President Barroso met with leading representatives of the three monotheistic religions and they enshrined the principle of a continuous dialogue. This informal consultative meeting will be convened twice a year with the Commission President in order to discuss commonly shared topics or subjects of major concern to either party.”