The Relationship of Church and State - A Perspective on the European Union Joint Statement on Issues relating to the European Integration Process / published by the Church Administration Office of the Evangelical Church in Germany and the Secretariat of the German Bishops' Conference ------------------------------------------------------------------------------------------ Table of Contents Foreword I. Christianity and Europe II. Church and State in Europe III. Freedom of Religion and Key Areas of Church Involvement 1. Freedom of Religion 2. Welfare Law 3. Education Law 4. Theological Faculties 5. Developments in Media Law 6. Other Relevant Issues regarding Cultural Affairs a) Protection of Historic Monuments and Memorials b) Protection of Sunday and Public Holidays 7. Church Employment and Labour Law a) "European Works Council" b) Directive on an Amendment to the Statute for a European Association c) Social Policy Agreement of the Maastricht Treaty d) Community Charter 8. Church Tax Law IV. Prospects for the Future ------------------------------------------------------------------------------------------ Foreword The closer the national legal systems within the European Union converge, and the tighter they are woven into the fabric of Community law, the more conscientiously the repercussions of this process on the historically evolved relationship between Church and State, a crucial element of the national identity of the individual Member States, must be heeded. In Germany, at the end of a long historical development, a finely balanced, detailed system of rules on the rights and obligations between the Church and the State based on the "separation of Church and State combined with friendly cooperation", traditionally referred to as ecclesiastical law (Staatskirchenrecht), has emerged and determines to a great extent the status of the Churches in public life. Its particular hallmark is official recognition of church social involvement as encompassing a comprehensive range of activities in the realm of public welfare, resulting in a multitude of pragmatically important consequences - consequences which are also significant for the development of the law of the European Union. With the following joint statement, the German Bishops' Conference and the Council of the Evangelical Church in Germany wish to make a basic contribution to the discussion of issues related to the integration process. Starting out with fundamental reflections of a general nature, this statement addresses several main issues which are manifestly of particular relevance for the Churches' social involvement in Germany. Together with specific questions on freedom of religion, welfare law, education law, media law and in general, legal provisions governing cultural affairs, the areas of church employment and labour laws as well as church-tax law are in so far discussed as they are significant for the further development of the relations between Church and State in the context of the European integration process. One of our important goals is to awaken understanding, recognition, and approval for the status of the Churches in the European Union. After preliminary work, especially on the protestant side, the Council of the Evangelical Church in Germany and the German Bishops' Conference established a project panel of jurists, on which Professors Dr. Martin Heckel (Tbingen), Dr. Alexander Hollerbach (Freiburg), Dr. Helmut Lecheler (Berlin), Dr. Christoph Link (Erlangen) and Dr. Christian Starck (G"ttingen) as well as Dr. Eckhart von Vietinghoff, President of the Landeskirchenamt, [Land Church Administration Office] (Hannover), participated. Direction and moderation were performed by Oberkirchenrat Dr. Gerhard Eibach (Church Administration Office of the Evangelical Church in Germany (EKD - Evangelische Kirche in Deutschland), Hannover) and Leopold Turowski (Commissioner's Office of the German Bishops, Bonn). The committee had the task of drawing up a "comprehensive discussion on the State - Church relationship from German and European perspectives" and was able to conclude their consultations after just two years. The German Bishops' Conference and the Council of the Evangelical Church in Germany (EKD) have studied the results presented by the committee and have approved its findings, making some suggestions for a very few changes and additions. They now present the results to the public as a common basis for further examination and discussion of this important political issue. The Churches are aware that the discussion on the issues raised here has only just begun. The discussion will need to be continued by scholarly endeavors as well as by appropriate church committees and institutions. In the future, it is hoped that the legal status of the Churches will become a fixture within the constitutional framework of the European Union, while making it perfectly clear that the authority to regulate the content of church affairs remains with the Member States. In the further development of Community Law more attention must be paid to the direct and indirect effects of Community acts on national systems of relations between Church and State, and vice versa, the national laws governing the relations between Church and State, ecclesiastical law, must take into account relevant aspects of Community Law to a degree greater than has up until now been the case. The Churches trust that even in this complex area of law constructive solutions grounded on the basic right of freedom of religion, the guarantee of the autonomy of the Churches, the observation of the principles of subsidiarity and the preservation of national identity will be found. Hannover/Bonn, January 1995 Administration Office of the Evangelical Church in Germany Secretariat of the Catholic Bishops' Conference in Germany ------------------------------------------------------------------------------------------ The Relationship of Church and State - a Perspective on the European Union The progressive integration of the Member States into the European Union raises the challenge of defining more precisely the role of the Churches in this process. The Churches themselves can offer to the integration process the perceptions and experiences they have gained within their own national context with regard to their relations to the state and can attempt to make these fruitful for the solution of problems to be faced, to clarify their position, and to influence the European dialogue. This contribution definitely serves the interests of the EU, since the EU can only solve its future problems in cooperation with the forces in society which are particularly able and willing to commit themselves to the European process. The following preparatory study, completed by a committee of representatives of the Protestant Churches in Germany and the Catholic Church in Germany, deals with several areas of problems currently facing the European integration process and seeks to make a contribution to this process. I. Christianity and Europe Christianity belongs religiously, culturally, socially, and politically to Europe's roots. It has been a decisive factor in European history. Even today, Christianity constitutes a significant part of European identity and the identity of European peoples. As the Federal Constitutional Court of Germany states in its recent judgment on the Maastricht Treaty of 12 October 1993, the European Union is to respect the national identities of its Member States (Article F(1) TEU) in the future stages towards further integration of the European legal community. This includes the respect of the influence of Christianity on its Member States. And further, because the Union is obliged to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, and as constitutional traditions common to the Member States, and thus as general principles of Community law (Article F(2) TEU), the EU has committed itself to upholding the essential elements of a liberal order of Church and State, namely the human right of religious freedom and the principles of neutrality and tolerance. For the further development of Christianity in Europe, much will depend on if and how the Christian heritage can be kept alive and prospering on a regional level, on the level of the Member States, on the level of the European Communities as the foundation of EU integration (see Article A(3) sentence 1 TEU), and finally, on the level of the Union itself. The Churches themselves are called upon to further develop Christian thought in the areas of culture and education and also in the areas of ethics and politics and to bring it into the European dialogue. The Churches in Germany take this task upon themselves, which should lead to a strengthening of the consciousness of a common responsibility and consequently, to an extension of the foundations for a common political order in Europe. For support they can call upon specific experiences in ecumenical cooperation in a country where the membership of the two Churches is approximately equal and in a state constitutional order which avoids biased solutions of Church-State issues in favour of a conception of the "golden mean and mutual concession". II. Church and State in Europe The relation of Church and State is structured very differently in the constitutions of individual European states. Likewise, thought patterns and mentalities of the European peoples are very diverse in this respect. The spectrum is wide: it reaches from the State Church or State Religion (existing today in England, Denmark, and Greece) to structures of separation in the form of laicit' (France). In between are configurations in which a basic separation of Church and State is coupled with elements of association and cooperation, primarily on a contractual basis. As points of orientation for a legal framework for church and religion, the European Union has at the moment only those criteria which can be gleaned from Article F(1) and (2) TEU, namely the national identities of the Member States, the European Convention on Human Rights, common constitutional traditions and the general principles of Community law. At the same time especially the principle of subsidiarity is to be observed. Both of the large Churches in Germany recommend that the competence for regulating the relations between Church and State remain with the Member States. They deem this to be indispensable in the interest of preserving national identity together with its diverse structures and in light of the principle of subsidiarity. Where measures in accordance with the rules of jurisdiction of the European Union or the European Communities directly affect the relation between Church and State, it must accordingly be guaranteed that the national constitutional and legal order not suffer. Moreover, it must be kept in mind that in most matters commitments exist, which arise out of contractual agreements between the Churches and the State. Finally, federal structures are also to be given due consideration, since legal regulation of Church-State relations belongs predominantly to the competence of the Länder. Within the national landscape, and in spite of similarities with other groups and institutions in society, the distinct quality of the Churches in Germany and their right to regulate their own matters are respected on constitutional grounds. They therefore advocate the development of a law within the EU in which they are not subjected to a regime of a general legal order with a tendency towards levelling their status, but rather that they be recognized and treated in a manner appropriate to their distinction as religious bodies. At any rate, it is clear that where the relations of Church and State are affected, the law of the EU or the EC may not be biased by the ideas of either separation in the sense of laicit' on the one hand, or of a State Church on the other hand, and implemented in the sense of either of these conceptions. Religion and church are positive factors which should not be ignored, but rather appropriately acknowledged by Community law, where they must find their proper place. III. Freedom of Religion and Key Areas of Church Involvement The State and Church are committed in different ways to performing services for the same individuals, which makes it necessary that they acknowledge one another in their responsibilities for a comprehensive public welfare and develop a system of established rules for their contacts with one another in their endeavors with respect to common areas of interest. This holds true, also, for the union of states in the form of the European Union in which the Churches wish to make their contribution to the European public welfare. In Germany, a sophisticated legal system - so-called ecclesiastical law - has developed for the relations of Church and State. It is based primarily on the basic right of freedom of religion and on the freedom of religious associations to organize and administer their own affairs within the restraints of the general laws applicable to all people and associations. This expresses that Church and State are principally separate from one another and that the relation to one another is characterized by the principles of religious and ideological (weltanschaulich) neutrality and equal treatment of all religious associations. On the other hand, there are elements of partnership and co-operation in the German model of Church-State relations. The status of the Churches as corporate bodies under public law is an important element in the relationship. This liberal system of cooperation on the basis of fundamental separation finds its sources, on the one hand, in the Basic Law (the German constitution) as well as in the constitutions of the L"nder, including the general federal and L"nder legislation and on the other hand, in an extensive system of contractual agreements between the State and the Catholic and the Protestant Churches. The Churches in Germany are aware that their relation to the state is based on specific historical and political conditions and that it exhibits a character which, in its main elements, has developed only in German-speaking regions. They are convinced that this system has proven its merits and that it copes in an exemplary fashion with the interests of both the Church and the State, while, most importantly, commendably meeting the needs of those people it is intended to serve. They are also convinced that the conception of the "golden mean and mutual concession" is very much in keeping with the times. It is becoming more and more evident that systems of close association as well as those of so-called strict separation are plagued by erosion because they no longer correspond with the reality of modern relations of Church and State in democratic states. Thus in those countries which are in the process of abandoning the model of a state church, a development towards a cooperative relation between Church and State can be observed. The further course of the development will depend primarily on the solution of practical individual problems. The following areas are currently of foremost importance: 1. Freedom of Religion The basic right of religious freedom is an undisputed foundation for the relations between Church and State. In Europe it has found special recognition in Article 9 of the European Convention on Human Rights. Its meaning has been further developed developed by the case law of the European Commission of Human Rights and the European Court of Human Rights. The Court of Justice of the European Communities has also regarded it for quite some time now as one of the general principles of Community law. Though the basic right of freedom of religion is seen primarily as an individual right, it has been acknowledged in the meantime that the Churches as institutions may themselves invoke Article 9 of the Convention. Thus the guarantee of religious freedom includes also a corporate dimension. Here is the starting point from which the freedom of organization, indeed, the freedom of self-determination and thus autonomy as such can be seen as belonging to the scope of protection of this basic right. The case law of the instances in Strasbourg expressly reveals that the Convention protects churches and religious communities in their distinctive role - including their legal relations with church office-holders and employees. From the German perspective this policy deserves complete support. In the German legal system, the institutional and organizational components of the freedom of religion find a special legal protection in the guarantee of church autonomy. This right of autonomy builds the necessary correlate to the basic right of religious freedom and constitutes in practice the key element of the relations between Church and State. It guarantees the free operation of religious communities in their endeavors, just as it reserves for the state the ultimate responsibility for public welfare by means of restraints on the scope of these rights. The German Churches expect that the guarantee of autonomy will find an express recognition and later, also a regulation in the further development of European law. 2. Welfare Law The fulfillment of public tasks by non-governmental (independent) organizations, especially church associations of social welfare work such as Caritas (Catholic) and Diakonie (Protestant), requires a reliable system of legal regulations which contain not only the necessary legal foundation for technical implementation, but which also provide the necessary freedom for the independent development of commitment and involvement characteristic of these organizations. The churches always perceive their social services as a religious activity, irrespective of the legal frame within which they are carried out. The structure of the German social welfare services is characterized by a pronounced system of independent welfare agencies (Freie Tr"gerschaft). The assurance of a wide spectrum of social services is primarily a concern of independent organizations and not a concern of the state. Independent welfare agencies initiate their activities on their own accord in conformity with the principle of subsidiarity and not on the basis of governmental planning. This solution insures at the same time the fundamental freedom of citizens to be able to select among a diversified spectrum of available possibilities the service they deem most suited to their needs. This concept is diametrically opposed to systems of social services found in other countries, which are exhaustively planned by the government and allow the state rigorous and broad monitoring and control rights. It is hoped that the concept of independent initiative will be realized at the EC level, first, to ensure independent welfare agencies equality of opportunity and second, to promote a broad spectrum of social services available to the public. Growing awareness of the importance of such provisions is evidenced in the Maastricht Declaration on the Cooperation with Charitable Associations (Declaration No.23 to the TEU), and also in the Protocol Declarations of the Federal Republic of Germany on certain issues of social policy. At present, however, a general recognition of independent initiatives is absent in Community law. Social services of independent agencies are generally categorized as "services" (in accordance with the French concept of ‚conomie sociale) and uniformly subject to the provisions on non-discrimination in free movement of workers, rights of establishment, and freedom to provide services, without taking into account distinctions characteristic of religious bodies. This could very well be a source of problems. Problems might also arise from a one-sided interpretation of provisions allocating "any aid granted by a Member State or through State resources in any form whatsoever" (Article 92 (1) EC Treaty - (TEC)), especially state subsidies awarded to independent welfare agencies in Germany, in consideration of their compatibility with Common Market goals. An application of Article 92 TEC oriented exclusively on considerations of competition policy would not do justice to the peculiar character of this financial support. Such a perspective would seriously challenge the structure of the social welfare administration in Germany. Finally, the question of the legal form of church employment relations should not be underestimated. Religious institutions of independent welfare services in Germany make use of very different legal forms available to corporate entities, preferring to utilize the legal form of the "association" (Verein) and the "foundation" as endowed institutions or charities (Stiftung). Concrete initiatives of the EC to change or influence the German law on associations and foundations do not exist at the moment. The EC has no express authority to regulate these areas of law. If the EC created its own law of associations and cooperative societies, however, German law could be indirectly affected. The European Commission has proposed issuing Council Regulations on statutes for a "European Association" (which would include both associations and foundations as defined by German law), a "European Cooperative Society" and a "European Mutual Association". These proposals are based on the competence in Article 100a TEC to approximate laws. They originate from the concept of the 'conomie sociale which stands in sharp contrast to German ideas of independent initiatives. The model for the European Association is to be the profit-making association, mingled with some characteristics of the non-profit organization. The competence of the EC to create its own European law of associations and cooperative societies is doubtful. On many points, the Commission refers to the national legal systems to elaborate the provisions. Thus, additional confusion and ambiguities as to the legal nature of these entities are the result. The Churches' criticism also concerns the content of the draft proposals: they violate the self-understanding of the Churches and they are irreconcilable with basic structures of German social welfare administration. Essential differences between profit and non-profit organizations, the basis for the differentiation of legal structures enabling social involvement of church welfare agencies, would become blurred by the legal framework of a "European Association" as conceived by the Commission. Placing side-by-side such diverse legal structures in an important area of the law on corporate entities that at the same time provides a framework for the realization of religious freedom is problematical - and not only from the point of view of legal policy. Much more importantly, it calls the whole social welfare system of Germany and its typical involvement of state, independent, and church initiatives and the financial policies developed to balance these forces into question. Linked closely to the existing system of independent welfare services in Germany is the structure of the German law on charities. Here, too, the Community has no direct legislative competence. Concrete plans for an approximation of laws in this area do not appear to be on the agenda. However, the legislative initiative for the creation of a European Association and Cooperative Society Law could indirectly play a role not to be underestimated because it might come close to creating a Community concept of charities, causing disruptions of the German law as momentous as an approximation of laws would be. A Community harmonization of the law on charities would, in all probability, seriously call into question the existential basis of independent initiative in the social welfare system. 3. Education Law In Germany the state school system is complemented by a broad spectrum of privately maintained educational facilities. The Churches also maintain a rich variety of their own institutions, from nursery schools to church colleges, which is acknowledged in education law, especially with regard to private general and vocational schools. In Germany, the competence for the administration of education lies fundamentally with the L"nder. In many cases the Churches have entered into agreements with the L"nder on the basis of constitutional provisions which make it possible for them to offer their multifaceted educational programme in close cooperation with state institutions. A general legislative competence of the EC for education and vocational training policy in the organization of educational administration does not exist. The Community does now have some additional authority to support and augment the efforts of the Member States in cultural affairs (but any harmonization of the laws and regulations of the Member States is expressly excluded, see Article 128(5) TEC). The Maastricht Treaty has provided the Community with the authority to take action in the area of vocational training policy ( Article 127 TEC, formerly Article 128 EEC Treaty) and in the area of general education policy (Article 126 TEC, likewise expressly excluding any harmonization), which are manifestations of Article 3(p) TEC, imposing upon the EC the task to make a contribution to education and training of high quality. The effects on education from other areas of Community law are also to be taken into consideration, especially provisions prescribing equal treatment in educational and training facilities, the freedom of movement of workers in the Community (Regulation No.1612/68 as well as Article 48 TEC) and the right of establishment and the free movement of services. These areas are relevant to issues concerning the establishment of private schools and admission to a profession. Here, the principle of subsidiarity has a special significance for the general rule (see Article 3b TEC) as well as for the special form which it has taken in Articles 126 and 127 TEC. A number of non-binding "resolutions" and "conclusions", so-called mixed acts (acts sui generis), including, for instance, measures promoting improved vocational training of young people and support in their transition from school to professional life, the introduction of new information and communication technologies in the realm of education, and equal opportunity for young men and women in education are also of interest. The programmes SOKRATES ( addressing institutions of higher learning / schools) and LEONARDO (vocational training), which commenced on 1 January 1995 as action programmes, will most likely be of a marked practical significance for educational policy. The programmes in existence up until now are to be absorbed into these two programmes (inter alia, ERASMUS for the promotion of mobility of university students, PETRA for vocational training of young people and their preparation for adult and working life and FORCE for continuing vocational training). The Court of Justice has had to consider educational issues in numerous decisions. For instance, the right to pursue vocational training was at issue in the decisions "Gravier" (Judgment of 13 February 1985, Case 293/83) [1985] ECR 593 and "Lair" (Judgment of 21 June 1988 (Case 39/86) [1988] ECR 3161, [1989] 3 CMLR 545). As far as general educational policy is concerned, practically no direct effects of Community Law on the educational law of the Federal Republic of Germany can be determined. The Maastricht Treaty has not changed this. Nevertheless, the underlying philosophy of education expressed in the EU Treaty indirectly influences general educational policy in the Federal Republic of Germany. The situation could be basically different in relation to other points of Community law discussed above, although it would have to be ascertained whether the Churches are subject to Community law at all and if so, in what situations and to what extent. At the current stage, the Churches have to reckon with obligations arising from Community law only with respect to general provisions on commercial activities, when these activities create obstacles for the free movement of persons and services. An extension of the principle of "direct effect", to the Churches can not be construed. Areas where Community law might be applicable include the right to equal opportunities in access to church educational institutions and in awarding financial support by church grants as well as in freedom of movement of teachers employed in church educational institutions. The Churches expect that the EC will observe the restraints on its legislating activities drawn by the distribution of competences and by the principle of subsidiarity. This applies also to educational promotional measures which can produce a significant amount of pressure on national educational facilities and their educational content. 4. Theological Faculties University theological faculties perform an essential task in furthering the unity of research and teaching at universities. They represent an important area of education. The presence of the Churches within the state structure of public universities - originally the theological faculties belonged to the nucleus of university education - is today an expression of the state's interest in the comprehensive education of the clergy and in the unity of teaching and research, which comprises the endeavors of both the Church and the State in the sense of the European academic tradition. Theology belongs to the "universality" of the university. Nowhere is this quality of Church-State cooperation more pronounced than in Germany where the theological faculties are an integrated part of the university system. There are presently 24 theological faculties at state universities, affiliated with either the Catholic or Protestant Church, established on the basis of guarantees in the laws of the Länder in connection with Concordats and contractual agreements concluded between the Churches and the Länder. They perform partly state, partly church functions, committed to the European academic tradition, as well as to the representation of the Churches' self-understanding. They are established by agreement with the Churches and partake in the constitutional guarantee of the Churches' right of self-determination, which is still further reinforced by their denominational affiliation. The exercise of teaching activities is attached to a special Church authorization (for the Catholic Church, the Missio canonica, for the Protestant Church, usually the Vocatio). EC law disposes over no general authority for the public administration of higher education and in particular, the state's higher education is not a "service" within the meaning of Community law. This also applies to institutions of higher education which are privately maintained by the Churches. The existing relevant provisions are based on Articles 6, 126 and 127 TEC and, in secondary Community law, primarily on Article 7(2) and Article 12 of Regulation 1612/68 and more recently, on the so-called "Student Directive" (Directive 90/366/EEC). It is important to note that these legal foundations are each applicable only to particular groups of people, so that, depending on the status of the particular group within Community law, different rights can arise under the same provision. With regard to fending off discrimination on the basis of nationality (Article 6 TEC), case law has addressed the following significant areas: access to institutions of higher learning, tuition fees, national maintenance grants (Baf"g - Bundesausbildungsf"rderung), and residence rights of students. With regard to national maintenance grants, conditional factors can, under certain circumstances, be determinative for the accrual of rights in cases in which a student is a child of a migrant worker, a migrant worker him or herself, or a self-employed person or a person entitled to establish a business in the Member State. The authorization to bear an academic degree can be made dependent on a prior approval procedure. Cases raising legal issues involving theological faculties, as generally, issues relating to the law governing religious matters in university education policy, have not as yet played a role in the case law of the European Court of Justice. In light of the existing case law of the European Court of Justice, the course of study at theological faculties is to be considered vocational training (when it does not serve as a mere extension of general education) and thus falls within the scope of the EC Treaty and the prohibition of discriminatory practices on the basis of nationality in Community law. Thus the imperative of equal treatment of applicants in admission to institutions of higher learning irrespective of their nationality is applicable to theological faculties. The prohibition of discriminatory practices in Community law does not extend to unequal treatment which derives from differences in the legal systems of the Member States, insofar as these constitute an unequal treatment according to objective elements and without prejudice to the nationality of the person concerned, which includes clauses on membership in a particular religious denomination. Employment relations in theological faculties fall within the scope of free movement, whereby the exemptions applicable to public administration employees do not apply here. 5. Developments in Media Law The Churches as associations which are dependent on communication to an exceptionally high degree have always paid particular attention to the policy in this field, especially with a view towards radio and television. In Germany the legislative competence for the media lies foremost with the L"nder as a part of their authority to regulate cultural affairs. In addition to L"nder regulations, treaties between the L"nder and, to some extent, treaties to which the federal government is a party exist for the electronic media, in contrast to provisions governing the print media. The legal provisions recognize the special status of the Churches as important and socially relevant groups with their specific mission and self-understanding. The recognition is manifested, first, by insuring available broadcasting time for worship services and other Church events in fulfillment of their public responsibility and second, by participation on monitoring committees. In addition, the Churches have a particular interest in the observation and, if necessary, the further development of fundamental principles of programme selection, e.g., protection of the family and youth, respect of religious convictions and tolerance of minorities as well as questions involving the right to privacy and copyright law. The EC possesses no direct jurisdiction for regulation of the media with regard to content. Insofar as the media are considered a cultural asset, this is derived from the established authority to regulate cultural affairs, which still lies with the Member States. In light of the character of the media as an economic asset, and based on Article 57(2) and Article 66 TEC, the EC perceives, however, televising activities as a service. Towards securing the freedom of movement of services as one of the central goals of the common market, in 1989 the EC issued the Council Directive of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting services (the so-called "Television Directive", Directive 89/552 EEC, OJ [1989] L 298/23). Although this television directive may be characterized as unobtrusive (in the meantime it is awaiting amendment), it could quite possibly gain importance in the future for the question of the repartition of competences between the EC and Member States insofar as it sets certain guidelines on programme content, even though it contains few provisions for the protection of minors and sets only minimum standards for advertisements. These guidelines have only a narrow scope, but they presume a regulating competence of the EC for basic programming principles, even if this competence is still extremely limited. The Churches are only indirectly addressed in the television directive, since worship services and programmes with religious content which last under 30 minutes may not be interrupted by advertisements. In the divergent concepts of radio broadcasting as a cultural asset within the regulating authority of the L"nder and as an economic asset within the regulating authority of the EC, an acceptable classification of media competences must be found. Therefore, it is in the interest of the Churches and conforms to the goal, as recognized also in Community law, to preserve the cultural diversity in the Community by leaving the cultural and social political functions of radio broadcasting law within the regulating authority of the Member States, which means in Germany: with the Länder. This competence includes particularly the constitutional aspects of radio broadcasting law with its emphasis on questions of presentation and organization of radio broadcasting programmes as well as developing criteria for their subject matter, which includes an effective legal protection of young people and respect for religious sensibilities and convictions, the right and the duty to allow important philosophical groupings within the European cultural tradition, i.e., especially the Churches with their religious and social political ideas and goals, to influence programming in a manner appropriate to their cultural status. Due to the internationality of the television market, the EC level will become of increasing practical importance with regard to content as well as commercial considerations in media law. In case of further relevant Community legislation, the Churches should therefore use their influence to urge an approximation of programme standards to those already established in German law. The Churches should also very carefully follow the further treatment of the Green Paper on Pluralism and Media Concentration in the Common Market (Com 92/480, final version, 23 December 1992). Concerned that media concentration endangers information pluralism, the European Parliament has requested the Commission to make recommendations for provisions on restricting the process of concentration in the media. 6. Other Relevant Issues regarding Cultural Affairs Because many cultural events by their sheer dimension tend to be ventures of economic interest, the cultural sphere is prone to be affected by EC acts, irrespective of the competence of Member States for cultural activities and of the competences of the German L"nder within the Federal Republic of Germany. On the level of the EC, peripheral competences at most exist in the area of cultural affairs. The Member States should employ every means to clarify the issue of competence in this field, especially where the allocation of considerable financial resources are involved. a) Protection of Historic Monuments and Memorials In light of the multitude of Church buildings, it is not surprising that the Churches are extremely interested in state protection of historic monuments. In Germany, the protection of historic structures is a matter for the L"nder to regulate. The L"nder have frequently passed legislation designed specifically to protect historic buildings, and have also included provisions in other statutes, which to some extent place considerable obligations on responsible parties to undertake preservation and protection measures (if necessary with financial state subsidies or tax rebates) and include the possibility for the Land under certain conditions to exercise its right of expropriation. Special provisions which pay due regard to the constitutional imperative of freedom of religion apply to the Churches. For protective measures affecting historical edifices which serve immediate church purposes, the decision of the competent church authority on the appropriate action to be taken is generally binding for the state administration agency. The Churches can also exercise their influence on the development and formulation of numerous types of national promotion programmes and measures designed to protect historical monuments. This is true, for instance, for "The Action in Support of Common Pilot Projects for the Preservation of the Architectural Heritage of Europe" which will focus its activities in 1995 on "religious edifices". The Churches must make certain that promotion programmes do not infringe their rights to use their historical edifices for religious purposes. b) Protection of Sunday and Public Holidays Provisions with respect to the protection of Sunday and public holidays are of great importance, not only for cultural, but also for economic life. In Germany, Sundays and the nationally recognized public holidays enjoy constitutional protection "as days of rest from work and of spiritual edification." Similar provisions are to found in the constitutions of the Länder. These constitutional precepts are put into concrete terms in the public holiday laws of the L"nder, as well as in the federal rules regulating working time. In these laws the state secures the external conditions which make it possible for the citizen, in addition to physical recuperation, to find rest and leisure for spiritual composure. At the same time, the state public holiday law serves the freedom of religious exercise - for the individual citizen as well as for the Churches as institutions. Church holidays that are not also recognized as public holidays nevertheless enjoy a certain protection. Correlate to the protection of Sunday and public holidays is a publicly perceptible interruption of the normal workday labour processes. Stricter regulations apply to the time of the main worship services on Sunday mornings and on mornings of public holidays. Furthermore, the media law provides for obligations to respective programme planning. On the EC level the Council Directive concerning certain Aspects of the Organization of Working Time of 23 November 1993 (Directive 93/104/EC [1993] OJ L 307/18) was recently passed, which regulates, among other things, the protection of Sundays and public holidays, and which is basically to be welcomed, but leaves some things to be desired from the point of view of the Churches. At any rate, the Preamble provides that with respect to the weekly rest period, "due account should be taken of the diversity of cultural, ethnic, religious and other factors in the Member States, whereas, in particular, it is ultimately for each Member State to decide whether Sunday should be included in the weekly rest period, and if so, to what extent." 7. Church Employment and Labour Law In order to cope with the extremely broad commitments in community involvement, the Churches have a considerably large staff at their disposal (over 700,000 alone in the area of social and welfare activities - Diakonie and Caritas) whose commitment to the Church is of existential importance to the self-understanding of the Churches and their involvement in the community. The Churches must invest their utmost energies in securing this commitment, including its legal basis. By far, most Church employees are under private employment contract with the Churches. For these employment relations, the general labour law is by and large applicable with, however, distinctions based on the Churches' right of self-determination which express the spiritual quality of their service ("fellowship in service" - "Dienstgemeinschaft"). The Churches have the authority to set the standards for the basic obligations of church employment relationships. This authority is enhanced where the Churches act on the basis of their status as corporate bodies under public law and, as employers, establish employment relations with persons who thereby attain a status comparable to that of a public civil servant. The autonomy of the Churches encompasses the regulation of co-determination in the place of work applicable to Church employment. The provisions passed by the state on this subject take into consideration the constitutional imperatives. The Churches decide themselves whether and in what manner their employees participate and co-determine the affairs which affect their interests in the enterprise. With this principle as the starting point, the Churches have issued their own employee-representation regulations. The permissibility of union activities in Church establishments is a question which also falls under the Churches' authority. The power to intervene directly in these legal relationships does not exist at the EC level. As far as the EC is responsible for general labour and social welfare law, however, an indirect contact to Church employment and labour relations might be established. The exercise of the right of regulating autonomously employment relations for Church employees finds its limits in the elementary principles of Community labour law. Especially to be taken into consideration are provisions on the freedom of movement of persons and services (Articles 48 ff TEC) together with the relevant supplementations in social welfare law and comprehensive obligations concerning equal treatment before the law, as well as the principle of equal treatment of men and women in the working world (Article 119 TEC in connection with the European Social Charter). These provisions are directly applicable to the relation between employer and employee. Other Community acts of at least indirect importance must also be considered. In this realm Article 48 TEC is not applicable to employment in public administration, an exemption which is, however, to be interpreted very narrowly. In accordance with the prevailing interpretation of this exception to Article 48 TEC, Church employment relations are not exempted. An exception will have to be made, however, for appointments of the clergy and religious aides, and in general for the establishment and filling of positions which are entrusted with directorial and counselling functions within the Churches and other religious institutions and belong to the essential core of religious activity. Freedom of religion and the autonomy of the Churches, which require strict neutrality from the state, demand these concessions. In the realm of individual employment law, it is fundamentally recognized that the Churches may make specific demands on the loyalty of their employees. On this issue the decision of the European Commission on Human Rights in the Rommelfanger case (EComHR Decision of 6 September 1989, Application 12242/86 - Rommelfanger/FRG) is of particular significance. In this case the Commission found that, as is true for every employer, a Church institution can require of its employees to agree to certain personal commitments necessary for the sake of the Church's credibility and its need to uphold certain values. The law governing co-determination in the work-place is most broadly developed in the Federal Republic of Germany and as far as it is already established at the EC level it affects in numerous ways the Churches' staff representation law. This is particularly true for the right of association in labour law, though admittedly, as is mainly true for the other European countries, Community law on associations addresses mainly industrial disputes and concentrates less on co-determination. a) "European Works Council" On 22 September 1994 a Council Directive was issued "on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees" (OJ [1994 L 254/64) which should be of some significance for the Churches. In favour of undertakings "serving ideological purposes" the national legislator is allowed exceptional regulating authority, inter alia, also for the Churches. b) Directive on an Amendment to the Statute for a European Association Furthermore, there is the Proposal for a Council Directive on the Amendment to the Statute for a European Association mentioned above, which deals with the role of the employee, and respective proposals for a Statute for a European Cooperative Society and the Statute for a European Mutual Association (see above). Here the law governing Church staff representation could be seriously affected. State laws which violate the Churches' right to regulate questions of employee representation are an infringement on the Churches' autonomy and therefore unconstitutional and invalid under German law. This should also apply to the planned directives, in accordance with a proper interpretation of the principle of subsidiarity. Insofar as the Statute for a European Association is deemed applicable to Church institutions at all, it must be ensured that special provisions, comparable to the relevant provisions in German law, are included in the Statute in order to safeguard the legal status of the Churches and their undertakings. c) Social Policy Agreement of the Maastricht Treaty The Agreement concluded between the Member States of the European Community with the exception of the United Kingdom on Social Policy of 7 February 1992 refers in Article 1 expressly to the obligation to take into account the diverse forms of national practices, in particular in the field of contractual relations. Negative effects on German Church-State relations are therefore not to be expected. d) Community Charter The Community Charter of the Fundamental Social Rights of Workers of 9 December 1989 contains provisions allowing the access of unions to undertakings of the most diverse kind and could also be of relevance for the Churches. The Social Convention is, however, not legally binding, so that, for example, the concept of the "alternative way" (Dritter Weg) of the Churches is not deemed to be endangered at the present. 8. Church Tax Law In order to cope with the extensive public and social tasks which the Churches in the Federal Public of Germany fulfill, it is necessary to have a reliable system of funding on which a predictable and clear calculation of expected income can be based. Following the expropriation of Church property on a grand scale in the last third of the 19th century, a system of church tax was established in Germany. The church tax owes its origins to a de-concentration of the activities of the Church and State, which was introduced during the process of the separation of Church and State in Germany. According to German law (constitutional law, church tax laws and agreements between the Church and State), both of the main Churches (as well as all other denominations recognized as corporate bodies under public law) have the right to levy church taxes on their members, based on a certain percentage of their income tax. State agencies assist in the collection of the taxes, retaining a fee for their assistance. The EC does not possess legislative competence in this area, either as an individual competence or as a general harmonization competence. It is therefore not to be feared that the German system of church tax could be directly or indirectly jeopardized. As far as a competence of the EC for a harmonization of income tax law comes into consideration, this would not affect the income tax as the basis for the church tax. Also the qualification of the church tax in accordance with the accepted interpretation of the German law governing income taxes as a tax-deductible expenditure is not called into question by Community law. Finally, the obligation of the employer to withhold church tax from the employee's pay, to be understood as the commissioning of a private person for the performance of a public task, is neutral on the point of religious activity and is permissible according to German law and unobjectionable from the point of view of Community law. Of great importance for the collection of church tax in Germany is the data-transmission system in use here, which has a sound legal basis. In Germany, the state may collect data for the purposes of, inter alia, church tax collection and transmit the data to the Churches. The Churches, for their part, may process the data, ensuring data protection according to their own data-protection regulations in co-operation with employers. This system must not be called into question on the basis of a data-protection directive in which the collection of data on membership in a religious organization would be principally forbidden. The proposed approximation of laws in this area, mainly for reasons of data protection in connection with aspects of competition law, is apt to confront the German data-protection law and the system of resident registration, especially with respect to its close connections to church tax collection, with significant problems. Considerable ambiguities exist in this area. In particular, an explicit exemption provision applicable to Churches, which would avoid the perplexing interpretation difficulties to be feared at the outset, is lacking. At least, the intended exemption possibilities require explanatory comments in order to guarantee a smooth implementation. It is exactly this sort of necessary debate between the Churches and the competent authorities in Brussels that reveals the disadvantages of the lack of a fundamental recognition of the social involvement of the Churches by the EU. IV. Prospects for the Future The Churches in Germany are convinced that the realization of a European common good also requires a contribution by the Churches. They are prepared to provide this contribution. With this goal in mind, they participate in the process of European integration and strive to cooperate with the churches in other Member States. They perceive as their specific task the strengthening of the ethical foundation necessary for a viable European Union and the promotion of freedom and tolerance. The German legal system guarantees the Churches an extensive and secure space for their involvement in the areas of pastoral care and counselling, social welfare ("Caritas" and "Diakonie"), education, culture and research. If this involvement is also to extend to the European dimension, it needs the guarantee of this freedom of action, specifically entrenched in the structures of the European Community and the European Union. To this end, the strict observance of the principle of subsidiarity is indispensable, and included in this, the respect of the substance of the national constitution and the existing contractual commitments, as well as the continuing freedom of Church and State to enter into contractual agreements with one another. Also necessary is the full recognition of the freedom of religion and of the autonomy of the Churches. This again presupposes the secularity and neutrality of the European legal system in a manner that offers an opening to such groups and institutions which have a religious basis. Concretely, this means that the Churches must find an appropriate place in the procedures and structures of the EC and the EU which respects their distinct quality. It is hoped that the significance of cooperation with the Churches will find its expression in primary Community law. In this manner a relationship characterized by the spirit of loyal partnership could develop between the Churches and the European Community.