Regulation of Religious Diversity by the Institutions of the European Union: from confrontation of national exceptions to the emergence of a European model
A paper was presented at the annual meeting of the Association for the Sociology of Religion, Atlanta, Georgia, August 15, 2003.
by Bérengère Massignon, Phd. Student
Ecole Pratique des Hautes Etudes/ School of Practical Advanced Studies (Paris)
Groupe de sociologie des Religions et de la Laïcité/ Groupe of Sociology of Religions and Laïcity (Paris)
Jacques Delors said that Europe was a UPO, that is an “unidentified political object”. The European scene constitutes a laboratory for the management of religion by a new type of international organization, which is both transnational and intergovernmental. In order to adjust to the European scene, religions and humanists develop at the same time a defensive and an offensive strategy. They try to guarantee the maintenance of the specificity of their model of State-Church relationship vis-à-vis the process of European integration, while also seeking to have their model prevail at the European level. Through formal and informal contacts, we seem to take part in a confrontation between national models of Church-State relations. Beyond this confrontation, do we observe the emergence of a specifically European model for the regulation of religion? This is the main focus of my talk today.
Two fields of investigation are open for analysis : that of legal lobbying by churches, given the emergence of Community legislation on religion and that of informal relationships between religions and the European Commission. The first domain is intergovernmental and constitutes a field of confrontation between national models of Church-State relations (I). The second is more transnational and produces strategies of innovation, where new forms for the regulation of religion are emerging (II).
I. The emergence of Community legislation on religions and competition between national models
A. The primacy of national models: subsidiarity and intergovernmentality
Several legal, cultural and institutional elements come together for the maintenance of national references in the European Union, specially in the field of religion. .
First of all, it should be stressed that European institutions did not receive a mandate to define official relationships with religions. The principle of subsidiarity applies at this level. Indeed, the only mention of religion in the Treaties is the declaration appendix n°11 of the Treaty of Amsterdam, which recognizes the exclusive competence of Member States in religious matters. This text is included in article 51 of the Constitution of the Union.
Moreover, in each European Union country, attachment to a specific model of Church-State relations is one of the elements of identity and national political culture. Religion, with the Reform contribute to Nation building and division of Europe through the principle cujus regio ejus religio. At the time of the intergovernmental Conference of 1996 which prepared the Treaty of Amsterdam, a draft presented by a committee of international experts of the KEK and COMECE stipulated that the model of Church-State relations specific to each Member-State was "an element of its identity”.
Lastly, the officialization of relations between European religions and institutions occurs in two ways : a constitutional treaty or the question of fundamental rights. These two fields are the object of an unanimous, and not a majority, decision-making by the Member-States Thus, the relations between religions and the European Union, in order to pass into Community legislation, must be the object of consensus. For instance, the mention of God or the reference to the Christian roots of Europe in the future Constitution, which are repeated requests by pope Jean-Paul II, were considered to be too controversial by the Presidium of the Convention to be incorporated in the Preambule, even if the majority of Constitutions of European Union Member-States refers to God. Similarily, the declaration annex n°11 was not included in the treaty because of two types of opposition : French, Belgian and Dutch governments because of laïcity, British and Scandinavian countries because they opposed a turn of the Treaty into Constitution. In These countries, a State religion and euroscepticism combine.
B. The weight of a concordatory Europe, the Belgian difference and French exceptionalism
This brief institutional overview must be supplemented by a presentation of the involved forces. Which is the dominating model emerging from the lobbying of religious and humanist groups on the European scene? Our thesis lies on the importance of the concordatory model in the definition of relations between religions and the European Union. The French model of laicité is isolated even among the European humanist forces that claim laicité. Laïcity is no just secularity. It supposes the will of the State to enforce separation between religion and politics and remove religion into the private sphere.
First of all, the weight of a concordatory Europe is confirmed initially at the level of the religious lobbying structures in Brussels. The concordatory model can be define by two features : a system of recognized cults which are granted special status and privileges, a social role of religion through social services (school, hospitals, social services…) and contribution to national identity. In the Council of European Churches (KEK), as in the Commission of European Bishop Conferences (COMECE), the follow-up of legal questions is coordinated by German lawyers within working groups bringing together national experts. How can we explain this? Thanks to the concordatory regime, and in particular church tax, German churches benefit from important financial resources and can dedicate funds and personnel for European coordination structures. Besides, the majority churches of concordatory countries (Germany, Italy, Austria) or of State religion countries (Finland, Greece) follow up themselves European questions through the intervention of a specific office in Brussels or through a member who they remunerate within a European denominational network.
The weight of a concordatory Europe is translated in Community law on religion through exemptions that recognize the specificity of religions in a certain number of directives in the audio-visual domain, on personal data protection or on labour law. One also notes a recognition of the positive social role of religions at the European level.
However, Churches are not the only groups to lobby in Brussels. Humanist, meaning atheist or agnostic groups, often related to a-dogmatic freemasonry, are also mobilized on the European level within the European Humanist Federation (FHE) inspired by a Belgian-Dutch laicité. In this model, unlike France, laïcité is not the principle, which guides all relations between religions and the State in the form of a strict separation between religion and politics. On the contrary, humanists claim the same rights as religions (ie. moral assistance in hospitals, in the army and in prisons just like chaplains). What are the indications of incorporating the Belgian-Dutch model of laïcité at the European level? There is a second part of the Declaration appendix n°11, which recognizes philosophical groupings, an aspect mentioned again in article 51, paragraph 2 of the future European Constitution. Besides, humanist leaders are invited alongside religious leaders in informal meetings organised by the European Commission. I shall come back to this point with more details.
What is happening with French laicité? The French advocates of laicité see Europe as a threat because they perceive themselves as the only secular country of Europe. A French organisation, the CAEDEL launched a campaign in favour of the laicite of European institutions close to French European deputies. They discover that this option was not part of their agenda and was considered to be unrealistic. However, in an intergovernmental system of amending Treaties where the decision is made unanimously, France can create a block, as during the time of the Charter of fundamental rights, where the French government refused the mention of “cultural, religious and philosophical heritage of Europe” turning this formula into “spiritual and moral". Moreover, those who inspired informal relations between the European Commission and religions are French : Jacques Delors and Jerome Vignon. In a spirit of separation between religion and politics, they never wanted these relations to become official.
II. Genesis of a European model of managing religions on an informal level
Thus, several national model of Church-State relations coexist and clash on the European scene, each of it having assets, supports and results. Then, where to find the signs for the emergence of a European model of regulation of religion ? I think we should look on the level of informal relations, in particular with the transnational European authority par excellence: the European Commission.
We will show that the model of regulating religion in the European Union is pluralist (A), with some limits due to the mode of intermediation of interest on the European scene (B).
A. The European Union : a pluralist model
The informal but structured dialogue between the European Commission and the religions and humanists is based on two main achievements characterised by a fairly strong level of pluralism, any way higher than in the Member States.
First of all, there is the initiative, “A soul for Europe”, established at the end of 1994 and design to funding inter-religious seminars about the spiritual dimension of European integration. This initiative is coordinated by an unofficial screening committee, responsible for providing expertise to underpin the selection of projects eligible for European funding. It comprises two representatives of each religion and philosophy: Catholics, Protestants, Jews, Muslims and Humanists. It is chaired by a humanist, and the secretariat is organised by Protestants, one way of showing a will to ensure the representation of minority groups in Europe. Pluralism is combined with equality as far as members are concerned : representation is not based on the numeric size of each religion, but rather on a desire to represent the main religions and the humanist movement, which are at the root of the European identity.
There is an other tool for the dialogue between the Commission and religions/humanists: the twice-yearly briefing sessions following European summits organised by Forward Studies Unit, a think tank attached to the Commission Presidency. These meetings involve a higher level of pluralism. By 2003, they were 50 invited partners : religious representatives, religious NGOs and European offices of religious orders. Unlike the “soul for Europe” initiative, Buddhists, Hindus, Christian Scientists and Scientology also take part. Protestant Churches are more widely represented with members of the Evangelical, Pentecostal and Quakers. A diversity of Muslims and Jewish organisations are invited. The prospect of enlargement have also increased the potential number of religious actors : Russian Orthodox Church opened an office in Brussels by the end of 2002. So did the Catholic Church of Ukraine in 2003
B. Limits to pluralism
However, the pluralist model of representation of religious and humanist interests has structural limits. In the absence of official relations between the religions and the European institutions, developing strategies to influence the European decision-making process and even simply obtaining information on developments in European integration requires considerable resources. The Catholic, Protestant and humanist networks are not on an equal footing, these being the three most structured organisations at the European level.
Firstly, the numbers of people working in the Brussels offices are unequal : there are eight working at COMECE, 6 at KEK and 2 at the EHF. This has an impact in terms of the number of issues monitored and in terms of the efficiency of lobbying: the reaction time and capacity for anticipation regarding an issue are different. The better-equipped groups are able to influence the decision-making process higher upstream, when the Commission is in the process of preparing directives. For instance, for the White Paper on Governance, a first draft of which appeared in September 2001, the Lutheran Church of Germany working on this matter for the KEK was already studying the topic in April, whereas the EHF was waiting for a public hearing in February 2002 before tackling it. Similarly, there is a considerable difference in capacity as regards access to information due to the efficiency of the networks of contacts with officials. Thus in the case of the Directive on non-discrimination, drawn up in the autumn of 2001, we met, the same day, the Catholic and humanist leaders, the first being already in possession of a preliminary draft, while the second was waiting for the Directive to appear on the Internet. Complete fulfillment of the pluralist model would mean that the European institutions should establish a definition of consultative NGO status like the European Council or the United Nations.
The system of relations between the EU and religions could evolve in less pluralist way in so far as the Churches are seeking official status from the European institutions. This development would automatically define who was included and who was excluded, hence it would reduce pluralism. Lacking of expertise, the European Commission is already inviting the more structured groups, KEK and COMECE, in seminars of dialogue on specific topics concerning EU policy. In the same way, there are unofficial tripartite KEK/COMECE and European Council meetings before each new EU Presidency. This allows Catholics and Protestants to know the agenda of the future EU Presidency, anticipation being an important element in a lobbying strategy.
In Conclusion I would say that a European model for managing religion is emerging, step by step, very pragmatically. It is pluralist with structural limits. It seems to be halfway between the pluralist interdenominational American model and the classic European model of a hierarchy of recognized religions. Besides, on the European scene, religious and humanist actors and institutions of the European Union explore new methods for managing religious pluralism. The European Union use traditional means of regulating religion through law and fundamental rights. It also adds new forms founded on informal and structured dialogue.