Dialogue with religious and non-religious organisations: decision by the European Ombudsman

Article 17 of the Treaty on the Functioning of the European Union reads 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.”

As part of that “open, transparent and regular dialogue” the Commission regularly organises “dialogue seminars” – meetings with a relatively small number of individuals aimed at discussing specific topics.

The European Humanist Federation (EHF), representing 50 humanist organisations from more than 20 countries, proposed to the Commission that it should hold a dialogue seminar on the exemption for religious organisations provided in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The Commission refused; and in October 2011 the EHF lodged a complaint with the European Ombudsman about that refusal, adding that the Commission favoured religious organisations over non-religious ones. In response, the Commission explained that the proposed topic would go beyond the spirit of Article 17 (quoted above) and that dialogue seminars were meant to address “wider issues”.

The Ombudsman’s decision is available here. In short, he failed to see how engaging in a discussion with the EHF could call into question the status of churches and religious associations even though he acknowledged the Commission’s broad margin of discretion in relation to its dialogue with religious and non-religious organisations. He advised the Commission to use the present case to clarify how it conducts its dialogue with religious and non-religious organisations and, if necessary, to draw up concrete guidelines for the future to ensure that it can justify its decisions objectively and avoid any perception that it discriminates against specific groups.

Even allowing for the Commission’s discretion in the matter his conclusion was still critical of the decision:

“By rejecting the complainant’s proposal for a dialogue seminar, on the grounds that this would go beyond the spirit of Article 17 (1) and (2) TFEU, the Commission failed properly to implement Article 17(3) TFEU, according to which the EU is obliged to ‘maintain an open, transparent and regular dialogue’ with churches, religious associations or communities, philosophical and non-confessional organisations. This constitutes an instance of maladministration”.

Comment: I blush to confess that I had never even heard of the European Ombudsman until I came across this decision; however, it points up an underlying confusion in the EU about the relative status of communities bound together by “faith” (however defined) and communities based on “ethical” or “philosophical” views – an issue that has come before the ECtHR in such cases as Folgerø and Ors v Norway 15472/02 [2007] ECHR 546 (29 June 2007) and Grzelak v Poland 7710/02 [2010] ECHR 904 (15 June 2010).

The tension between those who regard the roots of the EU as fundamentally “Christian” and those who, like the French (remember the Loi relative à la séparation?), believe that “religion” should have no particular status or special treatment in a secular Union has a fairly considerable history. Some readers may recall that during negotiations over the ill-fated and unratified Treaty establishing a Constitution for Europe the question was raised as to whether the text should include some explicit reference to Europe’s “Christian heritage”. Fortunately, wiser counsels prevailed – though that did not save the Treaty from ultimate oblivion.

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