Communicated on 8 June 2015

FIFTH SECTION

Application s

no . 10138/11, Jörg Max KLEIN against Germany no. 16687/11, Fritz NUSSBAUM against Germany no. 25359/11, Philip and Heike REDEKER against Germany and no. 28919/11, Uta GLOECKNER against Germany

STATEMENT OF FACTS

THE FACTS

The applicants are German nationals. The applicant Mr F. Nussbaum was represented before the Court by Mr H. Ãœbler, a lawyer practising in Sulzbach-Rosenberg. The applicant Mr P. Redeker was represented by Ms H. Redeker, second applicant in this case and a lawyer practising in Gera. The applicant Ms U. Gloeckner was represented before the Court by Mr D. Kehlen, a lawyer practising in Nuremberg.

A. Background to the cases

The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel ) of the Weimar Constitution of 11 August 1919, as incorporated into the Basic Law by Article 140 of that Law. A large number of Churches and religious societies, including the Catholic Church (about 24.9 million members) and the Protestant Church of Germany (about 24.5 million members), commonly known as the two “big Churches” ( Grosskirchen ), have the status of public ‑ law entities but are not, however, part of the government. Other religious denominations have legal capacity under civil law.

As regards their financing, Churches and religious societies having the status of public-law corporations are entitled to receive Church tax, which constitutes a significant portion (about 80%) of their total budget. Church tax is levied by the State tax authorities on behalf of Churches and religious societies, which in return pay the State 3 to 5% of their tax revenue. The church tax is based on income tax, amounting to between 8 and 9% thereof. It is paid directly to the Treasury by the taxpayer ’ s employer together with income tax. In this connection municipal authorities issue “wage-tax cards” ( Lohnsteuerkarte ) that employees are required to give to their employers. The card contains information about the employee, including the tax regime, rebates for dependent children and membership of a Church or religious society entitled to receive Church tax.

The Church tax is guaranteed by Article 140 of the Basic Law read in conjunction with Article 137 § 6 of the Constitution of Weimar ( Weimarer Reichsverfassung , see below). The religi ous communities that are public ‑ law corporations are allowed to levy taxes. Only members of the particular religious community authorised to levy taxes are obliged to pay. Any member who does not want to pay the Church tax is in principle obliged to leave the religious community.

If spouses are members of different Churches entitled to levy taxes ( konfessionsverschiedene marriage) and if the conditions are met for a joint income tax declaration, both Churches levy the Church tax in the form of the supplement to income and wage tax from both spouses. The Church tax for each individual spouse is based on half of the income.

If only one spouse belongs to a Church entitled to levy taxes ( glaubensverschiedene marriage), the Church entitled to levy taxes levies the Church tax in accordance with the tax assessment basis relating to that person. If this person has no income or a too low income, a Church tax cannot be levied. In some German Länder ( inter alia, in Baden ‑ Würtemberg , Bayern and Thüringen ) in this case the person who has no income but is a member of a Church entitled to levy taxes, is liable to pay a special “Church fee”, which is calculated on the Church member ’ s life-style related expenses. Those who want to avoid this special Church fee may do so by switching from a joint income tax declaration to a separate income tax declaration or by leaving the religious community.

B. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 10138/11 (J. Klein)

The applicant was born in 1964 and lives in Heidelberg, situated in the German Land Baden-Württemberg.

Until 2005 the applicant was member of the Catholic Church, which is authorised to levy Church taxes. In 2005 he left the Church and is no longer obliged to pay Church taxes (see Domestic law and practice below).

The applicant is married and taxable together with his spouse for income tax. The applicant ’ s wife is member of the Protestant Church, which is also authorised to levy Church taxes.

With a tax bill of 22 April 2010 the competent tax office charged the applicant ’ s wife 2,220 euros (EUR) special Church fee ( Kirchgeld bei glaubensverschiedenen Ehen) . Because the applicant and his wife were taxable together for income tax and the applicant ’ s wife ’ s income was below the minimum amount, the special Church fee for the applicant ’ s wife was proportionally calculated on the basis of the applicant ’ s wife ’ s life-style related expenses, which were calculated on the basis of the applicant ’ s income (see “Domestic Law and Practice” below).

The applicant appealed against the tax bill. On 17 December 2010 the tax office dismissed the applicant ’ s appeal with regard to the Federal Constitutional Court ’ s decision of 28 October 2010, fully endorsing its reasoning (see “Domestic Law and Practice” below).

2. Application no. 16687/11 (F. Nussbaum)

The applicant was born in 1935 and lives in Sulzbach-Rosenberg, situated in the German Land Bavaria.

The applicant is member of the Protestant Church. In 2005 he had an income of 10,144 EUR per year. His wife, who is not member of a Church had an income of 162,522 EUR. The applicant and his wife were taxable together for annual income tax.

On 7 February 2007 the competent tax office charged the applicant a special Church fee of 1,500 EUR. The special Church fee was proportionally calculated on the basis of the applicant ’ s life-style related expenses, which were calculated on the basis of the applicant ’ s and his wife ’ s income (see “Domestic Law and Practice” below).

The applicant appealed against this decision. On 12 December 2007 the tax office dismissed the applicant ’ s appeal and relied on the Federal Constitutional Court ’ s settled case law since 1965 in this regard (see “Domestic Law and Practice” below).

The applicant lodged an action with the Nuremberg Tax Court, asserting a violation of his basic rights.

On 18 June 2009 the Tax Court dismissed the action. It argued that the special Church fee violated neither the applicant ’ s right to equality nor his right to freedom of religion or freedom of action and relied on the Federal Constitutional Court ’ s settled case-law.

On 29 January 2010 the Federal Tax Court dismissed the applicant ’ s appeal against the decision refusing him leave to appeal and endorsed the Nuremberg Tax Court ’ s reasoning.

On 14 April 2010 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that he had no income and could therefore not pay the special Church fee on his own because the fee was calculated on the basis of both spouses ’ income. As a consequence the freedom of religion of both spouses was violated and spouses of glaubensverschiedene marriages were discriminated against other marriages. The applicant argued that he could only stay in his religious community if his spouse was willing to pay his special Church fee, otherwise he would have to sue her.

On 28 October 2010, after having joined the applicant ’ s constitutional complaint, inter alia, with those of the third and fourth applicants, the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 816/10). It argued that the constitutional complaints did not contain any constitutional questions which needed to be decided as the relevant questions had been decided in its judgment of 14 December 1965 (file no. 1 BvR 606/60, see Domestic law and practice below). This judgment was still applicable and the calculation of a person ’ s life-style related expenses in accordance with the spouse ’ s income did not raise any doubts as to its conformity with constitutional law.

3. Application no. 25359/11 (P. and H. Redeker)

The applicant P. Redeker was born in 1963 and his wife H. Redeker in 1965. Both applicants live in Gera, situated in the German Land Thüringen. The applicants are married. While the husband is member of the Protestant Church, which is authorised to levy Church taxes, and had the higher income, his wife is not member of a Church. In 2004 the husband ’ s income amounted to 53,511 EUR and his wife ’ s income to 11,720 EUR. In 2005 the husband ’ s income amounted to 55,033 EUR and his wife ’ s income to 4,928 EUR. In 2006 the husband ’ s income amounted to 54,996 EUR and his wife ’ s income to 12,640 EUR.

On 29 August 2005, 5 February 2006 and 26 June 2008 the competent tax office charged the husband Church tax for the relevant years. As the applicants were taxable together, the husband ’ s Church tax was calculated together with their income tax. The wife ’ s income was taken into account, resulting in a higher amount of Church tax for the husband.

On 23 June 2008 the competent tax office dismissed the applicants ’ appeal against this calculation of the Church tax.

The applicants lodged an action with the Gera Tax Court, asserting a violation of their basic rights.

On 31 March 2009 the Tax Court dismissed the applicants ’ action, arguing that the calculation violated neither the applicants ’ right to equality nor their right to freedom of religion. The court stressed that the German tax authorities had a wide margin of appreciation regarding tax regulations. Therefore the fact that the percentage of the spouse ’ s income tax and not the percentage of the spouse ’ s income counted as the basis for the calculation of the Church tax did not raise any doubts as to its legitimacy.

On 8 May 2009 the applicants appealed against the decision refusing them leave to appeal alleging, inter alia , a violation of their freedom of religion. They argued that in spite of the wife ’ s decision not to be member of a religious community, the tax authorities had taken into account her income when calculating her husband ’ s Church tax.

On 16 November 2009 the Federal Tax Court declared inadmissible for lack of sufficient reasoning the applicants ’ appeal against the decision refusing them leave to appeal (file no. I B 58/09).

On 21 January 2010 the applicants lodged a constitutional complaint with the Federal Constitutional Court, alleging a violation of their right to equality and freedom of religion.

On 28 October 2010, after having joined the applicants ’ constitutional complaint, inter alia, with those of the second and fourth applicants, the Federal Constitutional Court declined to consider the applicants ’ constitutional complaint (file no. 2 BvR 2715/09).

4. Application no. 28919/11 (U. Gloeckner)

The app licant U. Gloeckner was born in 1963 and lives in Nuremberg, situated in the German Land Bavaria.

In 2004 and 2005 the applicant, who had no income, was member of the Protestant Church, which is authorised to levy Church taxes. Her husband was not member of a Church. The spouses were taxable together for income tax.

On 2 February 2007 the competent tax authority charged the applicant no Church tax, as she had no income, but charged a special Church fee of 3,600 EUR for 2005 and on 27 June 2007 charged her 1,860 EUR for 2004. The amounts were calculated on the basis of the applicant ’ s life-style related expenses, which were calculated on the basis of the applicant ’ s husband ’ s income.

The applicant appealed against these decisions and applied for a suspension of enforcement. On 23 October 2008 the tax office dismissed the applicant ’ s appeal, arguing that there had been no violation of the right to equality because there was an objective and reasonable justification for the difference in treatment.

The applicant lodged an action with the Nuremberg Tax Court, again applying for a suspension of enforcement and asserting a violation of her right to equality.

On 15 June 2009 the Tax Court dismissed the request for suspension of enforcement, arguing that the special Church fee did not violate the applicant ’ s right to equality in view of the Federal Constitutional Court ’ s settled case law.

On 22 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court alleging, inter alia , a violation of her freedom of religion. The applicant reasoned that she could not remain in her religious community if her non-denominational husband did not agree to pay “her” special Church fee.

On 28 October 2010, after having joined the applicant ’ s constitutional complaint, inter alia, with those of the third and fourth applicants, the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 1689/09).

C. Relevant domestic law and practice

1. Basic law

Article 140 of the Basic Law provides that Articles 136-139 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows:

Article 137

“(1) There shall be no State Church.

(2) The freedom to form religious societies shall be guaranteed. ...

(3) Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.

...

(5) Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ...

(6) Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land.

...

(8) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land.”

Article 140

“The provisions of Articles 136, 137, 138, 139 and 141 of the German Constitution of 11 August 1919 shall be an integral part of this Basic Law.”

2. Judgments of the Federal Constitutional Court

On 14 December 1965 the Federal Constitutional Court delivered a leading judgment concerning the right of Churches to levy Church taxes (file no. 1 BvL 31/62, 1 BvL 32/62). It held that a person who was no member of a Church authorised to levy Church taxes, was not liable to pay Church taxes on account of his/her spouse ’ s membership of a Church.

On the same day the Federal Constitutional Court delivered a further judgment concerning the right of Churches to levy Church taxes (file no. 1 BvR 606/60). It held that if only one spouse belonged to a Church entitled to levy taxes ( glaubensverschiedene marriage) and that person had no income, the Church was not allowed to take into account the other spouse ’ s income as a basis to calculate Church taxes (Halbteilungsgrundsatz) , because taxes were levied on the basis of one ’ s personal income. The spouse who was not a member of any Church could neither be regarded as a person liable to pay tax nor be assumed liable to pay for the other spouse ’ s tax. At the same time the Federal Constitutional Court held that in this case this person may be liable to pay a special “Church fee”, calculated on the basis of the liable person ’ s life-style related expenses instead of the income. If these expenses were difficult to calculate, the calculation could be based on the spouses ’ joint income.

This case law has been applied by the domestic tax courts, including the Federal Tax Court (see no. I R 76/05, 19 October 2005; I B 109/12, 8 October 2013) and confirmed by the Federal Constitutional Court (see no. 2 BvR 443/01) since 1965 without any change.

COMPLAINTS

1. The applicants complain under Article 9 of the Convention that the levying of the Church tax and the special Church fee violated their freedom of religion.

2. The applicants Gloeckner, Nussbaum and Redeker complain under Article 14 of the Convention taken in conjunction with Article 9 that the levying of the special Church tax was discriminatory against women.

3. The applicants Gloeckner and Nussbaum complain under Article 14 of the Convention taken in conjunction with Article 8 that the levying of the special Church tax was discriminatory as it favoured couples of konfessionsverschiedene marriages over couples in glaubensverschiedene marriages.

4. The applicants Gloeckner and Nussbaum complain under Article 12 of the Convention that the levying of the special Church tax violated their right to marry.

QUESTIONS

1. Has there been an interference with the applicants ’ freedom of religion, within the meaning of Article 9 § 1 of the Convention? If so, was that interference necessary in terms of Article 9 § 2?

2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of the application of the provisions concerning the levying of Church tax and the special Church fee, contrary to Article 14 of the Convention read in conjunction with Article 9?