What are the rights and obligations of RBMs and their members in EU countries?

The legal status of RBMs is very different from country to country. Both at the level of EU law and international law, there are few general rules that regulate these minorities in uniform terms. Therefore their legal status is largely dependent, for better or for worse, on the domestic legislation of each EU state. As pointed out by Capotorti, the attitude of states towards RBMs lies along a line that runs between two extremes represented

by the case of recognition in the Constitution of the existence of a minority and the absence of any recognition at all. Between these two extremes, however, there are some middle positions: recognition of the basis of special legislation or administrative measures or the simple recognition of private institutions representing the interests of minority groups (F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (Study on the rights of persons belonging to ethnic, religious and linguistic minorities, 1991,ST/HR(05)/H852/no.5).  

Are RBM rights protected by international law (Cluster A)?

In post-World War II international law, the notion of religious minority appears in Art. 27 of the UN Covenant on Civil and Political Rights (1966). This article, in addition to protecting the rights of ethnic and linguistic minorities, guarantees the right of members of religious minority groups to profess and practice their religion “in community with the other members of their group”.

Evolving interpretations of the concept of religion and religious freedom by UN institutions have extended protection to include beliefs. Consequently, this provision has also been applied to belief minorities, along with indigenous peoples and minority groups resulting from migration.

Looking at Europe, the Council of Europe did not enact specific provisions devoted to guaranteeing the rights of religious minorities. However, in 1996 it approved the Framework Convention for the Protection of National Minorities. The link between RBMs and national minorities emerges in some provisions (Articles 1, 5, 6, 7, 8, 12, 17) and has been developed by the institutions of the Council of Europe, which have applied the Framework Convention to religious minorities.

According to international standards, states do not have any obligations to sign and ratify treaties on RBMs. Nevertheless, the implementation of these two international conventions promotes RBM rights.

Are RBM rights protected in the constitutions of the EU countries (Cluster B)?

The expression “religious or belief minorities” very rarely occurs in the constitutions of EU countries (among the few exceptions see the Belgian Constitution, Art. 11, and the Swedish Instrument of Government, Art. 2).  In some of them, RBM rights are regulated in provisions that make use of other expressions: Art. 8 of the Italian Constitution, for example, refers to “other religious denominations” to designate all religious organizations other than the Catholic Church, the majority religion in Italy and Art. 69 of the Danish Constitution refers to “religious bodies dissenting” from the Evangelical Lutheran Church, which is Denmark’s Folkekirche.

However, without attaching too much importance to a question of terminology, the absence of the expression “RBM rights” indicates that states generally refrain from committing themselves to promoting RBM rights in their constitutional charters, although some constitutions do contain rules that implicitly recognize the rights of RBMs in connection to specific activities or relationships with the state (see for example the Italian Constitution, Art. 8, and the Spanish Constitution, Art. 16.3).

Finally, the constitutional charters of all the EU states contain references to religion and belief in the rules guaranteeing the rights of freedom, equality and non-discrimination; some also contain references to the autonomy of religious or belief organizations and their cooperation with public institutions. Although these rules rarely mention RBMs, they contribute to protecting and promoting their rights.

While they hardly ever contain a reference to specific RBMs, the constitutions of EU countries sometimes mention the majority religion and/or the religious organization representing it (see for instance the Greek Constitution, Art. 3). This can be considered as a dutiful recognition of the historical, social and cultural roles that a religion or a religious organization has played in a country or as a way to distinguish the majority from minorities. In any case, mentioning the majority religion in the Constitution may have an indirect but significant impact on the legal status of RBMs.

States have no obligation to mention RBMs in their constitutions. However, the mention of RBM rights may be a way to strengthen their legal status.

Besides constitutional provisions, are there other laws that protect RBMs (Cluster C)?

In many EU countries there are laws regarding freedom of religion or belief and/or religious associations. The content of these laws does not always correspond to their title. Sometimes laws regarding freedom of religion or belief contain rules on religious associations and vice versa. The scope of application of these laws also differs. In some countries, such as Italy, there are laws that apply to all religious minorities with the exception of those that have stipulated an agreement with the state; in others, such as Poland, these laws apply to some religious minorities while others are regulated by ad hoc laws; in still others, such as in Estonia, the laws under discussion contain provisions that concern all religious organizations, regardless of whether they are majority or minority. 

Generally speaking, the provisions contained in these laws contribute to strengthening the legal status of RBMs, even though they sometimes introduce distinctions between minorities (large and small, old and new, etc.) that are the subject of conflicting assessments. However, states do not have the obligation to enact a law on religious freedom, or religious associations, or religious minorities. They are only required to grant RBMs such a legal status as to allow them to manifest the right to religion or belief in an individual and above all collective form.

Are there agreements between states and specific RBMs (Cluster D)?

In some EU countries there is a system of agreements between the state and specific RBMs.

In these countries, therefore, the legal regulation of these minorities is ensured by rules that have a different content depending on the RBM to which they apply. This system is different from that in place in countries where these agreements do not exist and where RBMs are regulated, at least in principle, by rules with the same content (see, for example, the case of France, with the exception of Alsace and Moselle). Regardless of any value judgements, these two systems reflect two profoundly different ways of conceiving relations between the state and religious organizations, one based on equality and the other inclined to value respect for diversity.

On the basis of what criteria does a state decide to enter into an agreement with a RBM? 

The list of RBMs that have stipulated such agreements with public institutions obviously differs from one state to another. This variety raises a number of questions. The most important one concerns the criteria governing the conclusion of these agreements. They differ from state to state but should everywhere comply with rules of transparency and fairness that allow RBMs to meet the requirements of the law to enter into an agreement with the state. 

Do these agreements concern only minorities or also religious majorities?

The situation differs from country to country. In some of the states that have opted for a system of agreements between the state and religious organizations, as in Austria, the agreements are stipulated only with the majority religious organization. In others, the agreement between the state and the majority religious organization has different formal characteristics from those between the state and RBMs. For example, in countries where the Catholic Church is the majority religious organization, relations with the state are regulated by concordats, which are generally considered as international conventions, while relations with RBMs are regulated by other forms of legislation, variously named (intese in Italy, acuerdos in Spain and so on), which are not regarded as relevant acts in the international legal system. In some cases this difference may affect the degree of resistance of these agreements to unilateral amendments by the state.

There is no obligation (nor prohibition) to enter into bilateral agreements with RBMs. According to OSCE/ODIHR (2014), Guidelines on the Legal Personality of Religious or Belief Communities, no. 40:

(…) the existence or conclusion of agreements between the state and a particular religious community, or legislation establishing a special regime in favour of the latter, does not, in principle, contravene the right to non-discrimination on the grounds of religion or belief, provided that there is an objective and reasonable justification for the difference in treatment and that similar agreements may be entered into by other religious communities wishing to do so (…).

On this point see also European Court of Human Rights (First Section) (2010, 9 December), Savez crkava “Riječ života” and Others v. Croatia, application no. 7798/08, para. 85.

However, once these requirements are respected, the conclusion of an agreement between states and RBMs can be regarded as a way to foster “the effective participation of religious minorities in decisions which affect them” (United Nations OHCHR (2014, September), The inclusion of religious minorities in consultative and decision-making bodies; see also UN Human Rights Council (2014, 22 January), Recommendations of the Forum on Minority Issues at its sixth session: Guaranteeing the rights of religious minorities (26 and 27 November 2013), A/HRC/25/66, para. 36).

How can a RBM obtain legal personality (Cluster E)?

In the EU countries there are different ways of obtaining legal personality. In some cases, it is conferred by a special law, in others through registration or recognition. Moreover, a religious organization may be registered or recognized as an association under civil law (such as associations that do not have a religious character and purpose) or as a religious organization. In order to be recognized/registered as a religious organization, some states request particular requirements, such as a minimum number of members and/or years in which a RBM has been active in the country. These numbers vary from state to state and may in some cases constitute an undue limitation on the right to obtain legal personality. The procedure for recognition or registration also differs greatly from country to country. In Estonia, for example, it is entrusted to the courts, in other countries, such as Italy, it is the responsibility of the Ministry of the Interior, and in others still, such as in Greece, it is entrusted to the Ministry of Education and Religious Affairs.

RBMs have the right to obtain legal personality. The European Court of Human Rights  has ruled that “the ability to set up a legal entity recognised by the State in order to guarantee the capacity for collective action in the religious sphere is one of the most important aspects of freedom of religion, without which that freedom would be meaningless” (European Court of Human Rights (2021), Guide on Article 9, no. 157). The Conference on Security and Co-operation in Europe has stated that 

In order to ensure the freedom of the individual to profess and practise religion or belief, the participating States  will, inter alia (…) grant upon their request to communities of believers, practising or prepared to practise their faith within the constitutional framework of their States, recognition of the status provided for them in their respective countries   (CSCE (1989), Concluding Document of the Vienna Meeting 1986 (Third Follow-up meeting), paras. 16 and 16.3).

Moreover state legal systems should not impose requirements that would make it particularly difficult for RBMs to obtain legal personality.

According to the OSCE/ODIHR (2014), Guidelines on the Legal Personality of Religious or Belief Communities, (nos. 27-28)

(…) legislation should not make obtaining legal personality contingent on a religious or belief community having an excessive minimum number of members. (…) Legislation should not necessitate a lengthy existence in the country as a requirement for access to legal personality.

In the same sense see also H. Bielefeldt, N. Ghanea, & M. Wiener (2016), Freedom of Religion or Belief. An International Law Commentary, Oxford: University Press, p. 228 ("Registration should neither depend on extensive formal requirements in terms of the number and citizenship of members at the national or local level nor on the time a particular religious group has existed in the country concerned").

Within the same State the RBMs that acquire legal personality as religious organizations are not always governed by the same rules. In some countries there are different levels of recognition/registration of RBMs, and different rights correspond to each level. Access to the highest level requires that the RBM meet more stringent requirements than those that allow recognition/registration at a lower level. In Austria, for example, an organization that wants to be registered as a religious entity must prove that it has at least 300 members; if it wants to be recognized as a religious entity under public law, it must prove that its members amount to at least 0.2% of the Austrian population and that the organization has been active in the country for at least 20 years. The scores given to countries that apply these requirements are explained in "Legal status. Explanation of scores, questions 13-13.3" in the DATA page.

How is it possible to give a numerical value to such different situations? 

The legal systems of the EU countries define the status of religious or belief organizations according to different models. However, there are some elements that are shared by all states. Almost everywhere there is an upper and lower tier; sometimes there are also one or two middle tiers. Some countries, such as Belgium, have a two-tier system: religious/belief organizations can be recognized by law (upper tier) or can organize themselves as non-profit associations (lower tier). Other countries have a three-tier system: in Finland the Evangelical-Lutheran and Orthodox Churches are recognized by law, other religious groups are registered as religious organizations (middle tier) and yet others as civil law associations. Finally, some countries, such as Austria, have a system characterized by four categories of religious/belief organizations, with an upper and a lower middle tier. 

To reflect this diversity, a classification has been used based on the attribution of five different scores, as summarized by the following table. 

*Hungary has more middle tiers.

The middle tier has been scored as follows: 

- in the case of a single category of registration/recognition as RBO: 0.50 in countries like Finland having three tiers; 1 in countries like Estonia having two tiers and being the upper tier represented by the registration/recognition as RBO; 

- in the case of two categories of registration/recognition as RBO: respectively 0.33 and 0.66 in countries like Austria having four tiers; respectively 0.33 and 1 in countries like Romania having three tiers and being the upper tier represented by the higher category of registration/recognition as RBO.

 Rossella Bottoni and Silvio Ferrari

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This guide provides some keys to interpreting the three indices (P-index, E-index and G-index) built on the basis of the Atlas data.

P-index (States)

1.     It is not easy to evaluate how much a legal system promotes minority rights. Each European country applies different systems for dealing with RBMs, especially in the area of their recognition/registration, and this requires a complex reading grid capable of including all the variables (see what is written in reference to the last cluster).

2.     The countries with a legal system that most promotes the rights of RBMs are Poland and Sweden. In spite of the religious, cultural and legal differences that separate them, these two countries ensure protection and promotion of RBMs at both international (cluster A) and national level (clusters B and C), guarantee to a good number of RBMs the right to be registered/recognized as religious organizations (cluster D) and do not place particularly severe constraints on the acquisition of legal personality (cluster E).  At the other end of the scale are France, Belgium, and Greece. France is disadvantaged primarily by its failure to sign international conventions protecting the rights of RBMs, Greece and Belgium also by the limited number of RBMs that can obtain legal personality as religious organizations. Between these two extremes are the other countries, with Italy more supportive and Austria less supportive of RBMs.

3.     Disaggregating the data by cluster aids a better understanding of these initial findings.

Cluster A.

The low scores of France, Belgium and Greece can be explained by the fact that they have not signed the Framework Convention for the Protection of National Minorities (which includes provisions protecting RBMs) and, in the case of France, also by the fact that a reservation has been made to art. 27 of the ICCPR. All other countries have ratified both conventions and thus obtain a much better score.

Cluster B. 

RBMs are largely ignored in most of the constitutional charters of the countries under research. Only the constitution of Sweden (Instrument of Government, Art. 2) declares itself in favor of the possibility for religious (as well as ethnic and linguistic) minorities to "preserve and develop a cultural and social life of their own” while that of Belgium presents a specific norm in favor of BOs (Art. 11); the constitutional texts of two other countries -Romania (Art. 6.1) and Poland (Art. 35.2)- do not explicitly mention RBMs but contain a reference to religious identity in the norms for the protection of ethnic and national minorities (the declaration of the Hungarian constitution to "value the various religious traditions of our country" was not considered for scoring purposes because it is too general and included in the preamble, which has no legally binding value). More frequent are constitutional references to the majority religion. They are included in the constitutions of Finland (Art. 76), Greece (Art. 3), Italy (Art. 7), Poland (Art. 25.4), Spain (Art. 16.3) and in the Instrument of Government of Sweden (Art. 2) and contribute to increasing the distance between majority and minority religions indicated in the G-index.

Cluster C.

The legal systems of most European countries include laws on freedom of religion and belief or religious organizations. They contain rules that apply to RBMs and help protect their rights. The exception is Belgium, which has no such legislation. In two cases (Finland and Greece), these laws also contain provisions that provide special protection to specific RBMs.

Cluster D.

Some countries (Hungary, Italy, Spain) have entered into agreements with RBMs or have enacted laws agreed with RBMs (Poland). In this way, the principle of participation has been implemented, allowing RBMs to take part in decision-making processes on matters that directly concern them. For this reason, a moderately positive score has been given to those countries which have concluded such agreements.

Cluster E.

This is undoubtedly the most complex cluster, and to analyze the data collected in it, it is advisable to divide it into two parts. The first (questions 8-11.2) concerns the different types of legal personality that RBMs can qualify for. In the countries of the European Union there are multiple levels of recognition or registration of religious organizations: everywhere there is a higher and a lower level; sometimes there are also one or two intermediate levels. Each of these levels corresponds to a different set of rights, which are greater for the highest level and progressively lesser as one descends.

The rights of RBMs are thus better promoted if a large number of them can reach the higher levels and obtain more rights. From this point of view, the countries where RBMs enjoy the most opportunities are Hungary, Austria, Estonia, France and Sweden; those, on the other hand, in which RBMs are more frequently relegated to the lowest levels (and therefore have fewer rights) are Romania, Belgium, Greece and Spain.

But there are other elements that need to be taken into account (questions 12-13.3). In some countries, access to either level of recognition/registration is conditional upon an RBM having a minimum number of members and/or being active in the country for a minimum number of years. Although the imposition of these conditions is contrary to international standards only when they are particularly onerous, these requirements can significantly limit the rights of RBMs. The countries where they are most severe, and where it is therefore more difficult for RBMs to access the highest levels of recognition/registration, are Austria and Romania; those where these requirements are not explicitly prescribed (although it is possible that they are informally taken into account) are Estonia, Finland, France, Italy, Poland, and Sweden.

Combining these two indicators (number of RBMs that can access the highest levels of recognition of legal personality and limits to recognition/registration), it appears that the countries where RBMs have the greatest possibilities of accessing the highest level of recognition/registration provided by the legal system of a state are Estonia, France and Sweden, while those where these possibilities are the least are Romania, Austria, Belgium and Spain.

4.     The data regarding the legal status of RBMs confirm an observation that has already emerged in relation to other policy areas. In Europe, there are two ways to promote RBM rights. The first is to provide a simple legal system, based on a single level of recognition/registration, with easy access to all RBMs: this is the case in Sweden. The second is to provide for a more complex legal system, based on several levels of recognition/registration, in which access to the highest level is subject to an agreement between an RBM and the State: if these agreements are numerous (such as in Poland) the rights of RBMs are largely guaranteed. The two systems are not the same: the latter has greater elements of discretion than the former, but allows, through agreements, for the specific needs of RBMs to be better met.

P-index (RBMs)

The RBMs whose rights are most promoted are, in descending order, the Catholic and the Orthodox Churches, the Protestant Churches (mainline), the Jewish communities, the Protestant Churches (evangelical), and the Islamic communities. A step lower are placed on the same level, the Buddhist and Hindu communities, Jehovah's Witnesses, Mormons and finally, further down, BOs, Sikhs and Scientology. This ranking is not too different from that which characterizes the other policy areas: at the highest level are the Christian churches, followed by the Jewish and Islamic communities, at the lowest level are the BOs (which, except for Belgium, are rarely placed on an equal footing with religious organizations), Scientology (which is particularly disadvantaged in France and Belgium) and Sikhs (who are few in number and unlikely to attain the legal status of larger communities).

E-index (States)

The country where the legal framework for RBMs is most homogeneous is Sweden (where all RBMs, with the exception of BOs, Mormons, and Sikhs who score lower achieve the same score), followed by Austria, France, and Romania. At the other end of the equal treatment scale are Belgium and Greece. In Belgium, there is a particularly wide gap between BOs and all other religious organizations and another gap between recognized and non-recognized RBMs; in Greece the dividing line runs between the RBMs which receive a specific legal regulation in the 2014 law and all others. 

G-index (States and RBMs)

The data confirm what has already emerged in the analysis of other policy areas. The RBMs that come closest to the legal status of the majority religion are always the Christian minorities; those that are furthest away are Scientology and the BOs. 

Considering the states, the gap between majority and minorities is smaller in France, where the separatist tradition is strong, and in Belgium  where the majority Church scores relatively low. On the other hand, the same gap is very wide in Finland and Sweden, where the majority Church enjoys a specific legal status.

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