Information Note on the Court’s case-law 261

April 2022

Anderlecht Christian Assembly of Jehovah’s Witnesses and Others v. Belgium - 20165/20

Judgment 5.4.2022 [Section III]

Article 14

Discrimination

No tax exemption for buildings used for the public practice of a non-recognised religion, the rules on such recognition being devoid of the minimum guarantees of fairness and objectivity: violation

Facts – As of the 2018 fiscal year the applicant associations, nine congregations of Jehovah’s Witnesses, were denied exemption from payment of a property tax ( précompte immobilier ) in respect of the properties they used for public worship, on the grounds that they did not meet the new statutory criterion laid down in an order of 23 November 2017 enacted by the Brussels-Capital Region, consisting in belonging to a “recognised religion”.

Law – Article 14 read in conjunction with Article 9 of the Convention and Article 1 of Protocol No. 1

(a) Applicability – The buildings owned by the applicant associations and subject to the tax in question were used for public worship.

The amount of the tax was equivalent to 23% of the donations the associations received, which constituted their sole source of funding. It also accounted for a substantial proportion of the annual running costs connected with the buildings, representing between 21.4% and 32% of those costs, depending on the year. These amounts were not insignificant and had a considerable impact on the operation of the applicant associations as religious communities.

Furthermore, the national authorities had themselves linked exemption from the tax to public worship, taking the view, implicitly but necessarily, that exemption contributed to the effective exercise of freedom of religion within the meaning of Article 9. The applicant associations, which had previously been eligible for exemption, took issue with the fact that it was now made conditional, in the Brussels-Capital Region alone, on public worship by recognised religions.

Where the national authorities granted tax concessions to some communities without necessarily being required to do so under Article 9, they also had to comply with Article 14.

These factors taken together sufficed to bring the facts of the case within the ambit of Article 9.

In so far as the difference in treatment complained of concerned the granting of a tax exemption that might enable the application associations to lawfully avoid paying the tax, it also came within the ambit of Article 1 of Protocol No. 1.

(b) Merits

(i) Difference in treatment – There was a difference in treatment between religious communities like the applicant associations which, because they were not recognised, could not claim exemption from the property tax in the Brussels-Capital Region in respect of buildings used for public worship, and those communities that were recognised and thus could continue to claim exemption.

The applicant associations were in a relevantly similar situation to communities whose religion was recognised and whose properties were used for public worship.

(ii) Legitimate aim – In enacting the measure in question, the legislature had sought to prevent abuse arising out of the exemption from the property tax of premises that were in fact designated for use by “fictitious” religious denominations.

No actual cases of fraud had been cited in the preparatory work preceding the enactment of the order or by the Government, nor did it appear that the applicant associations had committed, or been suspected of committing, any fraud in benefiting in the past from exemption from the tax. Nevertheless, the prevention of tax fraud was an aim whose legitimacy per se could not be called into question by the Court.

(iii) Reasonable relationship of proportionality between the means used and the aim sought to be achieved with regard to the safeguards afforded by the federal procedure for recognising religions – In using the recognition of a religious faith as the basis for distinguishing between claims for exemption from the property tax, the authorities had opted for an objective criterion that was potentially relevant with regard to the aim pursued. The choice of such a criterion fell within the margin of appreciation left to the national authorities in the sphere under consideration.

Although the recognition criterion was currently employed only by the Brussels-Capital Region and not by the Flemish and Walloon regions, this did not imply that there was discrimination in breach of Article 14. The Court had always been mindful of the specific features of federalism, so long as they were compatible with the Convention.

The Government argued that it was open to the applicant associations to apply for recognition of their faith at federal level in order to continue to claim exemption in the region in question. The applicant associations countered that it would be pointless to apply, given the serious shortcomings in the procedure for seeking recognition. The Constitutional Court had not ruled in the present case on the procedure for recognising religious denominations.

In the Court’s view, neither the criteria for recognition nor the procedure leading to recognition of a religious denomination by the federal authority were laid down in an instrument satisfying the requirements of accessibility and foreseeability.

Firstly, recognition of a faith was based on criteria that had been identified by the Minister of Justice only in reply to questions put by members of parliament. Moreover, as they were couched in particularly vague terms they could not be said to provide a sufficient degree of legal certainty.

Secondly, the procedure for the recognition of faiths was likewise not laid down in any legislative or even regulatory instrument. This meant that the examination of applications for recognition was not attended by any safeguards, with regard either to the actual adoption of the decision on such applications or to the process leading to the decision and the possibility of appealing against it subsequently. In particular, no time-limits were laid down for the recognition procedure. In that connection, no decision had been taken to date on the applications for recognition lodged in 2006 and 2013.

Lastly, recognition was only possible on the initiative of the Minister of Justice and depended thereafter on the purely discretionary decision of the legislature. A system of this kind entailed an inherent risk of arbitrariness, and religious communities could not reasonably be expected, in order to claim entitlement to the tax exemption in issue, to submit to a process that was not based on minimum guarantees of fairness and did not guarantee an objective assessment of their claims.

Hence, since the tax exemption in question was contingent on prior recognition, governed by rules that did not afford sufficient safeguards against discrimination, the difference in treatment to which the applicant associations were subjected had no objective and reasonable justification.

Conclusion : violation (unanimously).

Article 41: finding of a violation sufficient in respect of non-pecuniary damage.

(See also Association Les Témoins de Jéhovah v. France , 8916/05, 30 June 2011, Legal summary ; The Church of Jesus Christ of Latter-Day Saints v. the United Kingdom , 7552/09, 4 March 2014, Legal summary ; Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v. Turkey , 32093/10, 2 December 2014, Legal summary ; and Christian Religious Organization of Jehovah's Witnesses v. Armenia (dec.), 73601/14, 29 September 2020, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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