CONCURRING OPINION OF JUDGE GROZEV

While I agree with the conclusion that there has been no violation of the applicants ’ rights under the Convention, I have some difficulties following the approach taken with respect to the first applicant ’ s complaint of a violation of Article 14 in conjunction with Article 9. The Court found that this complaint of the first applicant was incompatible ratione materiae and accordingly rejected it, as it did not fall within the ambit of Article 9 (see paragraphs 104-106 of the judgment).

The complaint made by the applicant was that he was treated differently on account of his tax obligations, and that difference in treatment was based on his wife ’ s belonging to a particular religion. Looking at the first element, the applicant was indeed treated differently compared with individuals who were in the same situation, namely individuals with a higher income than their spouse, but whose spouse did not belong to a church with tax-levying powers. Those other individuals had the possibility of opting for a joint tax assessment, with the benefits that come from such joint assessment, without being forced as a result to have their total income taken as a basis for the calculation of their wife ’ s church contributions. The applicant did not have that choice and thus was treated less favourably. He could choose only one of those two alternatives, either a joint tax assessment or not having his income taken into account for the purpose of the calculation of his wife ’ s church contributions. It is precisely this restriction of the choice available to the first applicant that amounted to a different treatment and this was the substance of his complaint before the Court (see paragraph 102). This difference in treatment was based on the religion of the applicant ’ s wife and as a result, in my view, falls within the ambit of Article 9, with the requisite need for justification of such different treatment.

At the same time, while this complaint of discriminatory treatment has been made before our Court, it was not made as such by the applicant before any domestic authority or court. The applicant did not raise it in his complaint before the domestic tax authorities (see paragraph 23) and never brought it before a domestic court. While some of the justifications for this differential treatment could be inferred from earlier domestic judgments, particularly those of the Federal Constitutional Court in its relevant judgments, the fact remains that this complaint was never addressed at the domestic level. Thus, although it falls within the ambit of Articles 14 and 9 of the Convention, an assessment of its justification would be particularly difficult in the light of the lack of proper consideration at the domestic level, this also being contrary to the principle of subsidiarity.

Appendix

No.

Application no.

Applicant

Represented by

10138/11

Jörg Max KLEIN

Dr. Jacqueline NEUMANN

16687/11

Fritz NUSSBAUM

Dr . Heiko ÃœBLER

25359/11

Philip REDEKER

Heike REDEKER

Heike REDEKER

28919/11

Uta GLOECKNER

Dr. Detlef KEHLEN