CASE OF KLEIN AND OTHERS v. GERMANY
Remainder inadmissible (Article 35-3-a - Manifestly ill-founded;Ratione materiae);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev
7. The applicants were born in 1964, 1935, 1963, 1965 and 1963 respectively. 8. 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 (Weimarer Reichsverfassung), as incorporated into the Basic Law by Article 140 of that Law. A couple of Churches and religious societies, including the Catholic Church (about 23.7 million members) and the Protestant Church of Germany (about 22.2 million members), commonly known as the two “big Churches” (Grosskirchen), have the status of publiclaw entities. Other religious denominations have legal capacity under civil law. 9. As regards their financing, churches and religious societies with the status of public-law entities are entitled to levy a church tax, which accounts for a significant portion of their total budget. The churches decide independently whether to levy a tax and what its rate should be. The rate of church tax has been over many years either 8% or 9% of the tax on an individual’s income and, in most German Länder, is collected by the State tax authorities on behalf of churches and religious societies, which in return pay 3% to 5% of their tax revenue to the State. 10. The church tax is guaranteed by Article 140 of the Basic Law read in conjunction with Article 137 § 6 of the Weimar Constitution (see paragraph 49 below). Only members of a particular religious denomination authorised to levy the tax are obliged to pay it. Any church member who does not want to pay church tax can leave that church by declaration towards the authorities. 11. If spouses are members of different churches entitled to levy taxes (konfessionsverschiedene Ehe) and if they have opted for a joint income tax assessment (gemeinsame steuerliche Veranlagung), both churches levy the tax on the spouses in the form of an additional levy on the income tax of both spouses. The amount of each spouse’s church tax is calculated on the basis of half of the declared income tax. 12. In marriages where only one spouse belongs to a church entitled to levy taxes (glaubensverschiedene Ehe), the church entitled to the tax levies it in accordance with that person’s tax assessment. Churches calculate the tax on the basis of the income tax attributable to the spouse liable to pay tax rather than on the basis of that spouse’s share of the total income. According to the Federal Constitutional Court’s settled case-law, if the spouse belonging to a church has no income in terms of the regulations of the Income Tax Code, the church tax cannot be levied (see 56 paragraph below). In that case, in some German Länder (inter alia, BadenWürttemberg, Bavaria and Thuringia), the church entitled to levy taxes charges its members a special “church fee” (besonderes Kirchgeld). Although called a fee, the levy is, however, treated legally as a tax. The church fee amounts to about one-third of the relevant church tax. 13. Churches only levy the special church fee if spouses decide on a joint income tax assessment. The special church fee is not levied if spouses make separate tax declarations (getrennte Veranlagung). It is important to note that in case of a joint income tax assessment the spouses benefit from a special calculation method for the income tax (the so-called “incomesplitting”, “Splitting-Verfahren”) and furthermore from the progressive effect (Steuerprogression) of the German tax system, which generally leads to a lower tax burden. 14. If spouses decide on a joint income tax assessment, they submit a tax declaration (Steuererklärung). In most of the German Länder (except of the Land of Bavaria), in their tax calculation procedure (Steuererhebungverfahren) the tax authorities set the special church fee according to the calculation regulations of each church. The basis for calculating the special church fee is the church member’s living expenses (Lebensführungsaufwand), which are calculated on the basis of the spouses’ joint income. The special church fee is only levied on the spouse who is a church member. The remaining tax liability is applied to both spouses. 15. If a tax authority’s calculation on income tax leads to a tax reimbursement for the spouse not being a member of a church and who is liable to pay income tax, only that spouse will be credited with it. At the same time, the special church fee levied on one spouse can be offset against any tax reimbursement due to the other spouse. If the calculation of the income tax leads to a demand to pay more tax, offsetting cannot take place. 16. Either spouse can file an objection (Einspruch) against that part of the tax bill which applies to them. If the special church fee has been offset against a tax reimbursement due to the spouse who is not a member of a church that spouse can apply for a settlement notice (Abrechnungsbescheid) in accordance with Article 218 of the Fiscal Code (Abgabenordnung, see paragraph 51 below) and thus have the possibility to be repaid the offset amount. 17. The facts of the cases, as submitted by the parties, may be summarised as follows. 18. The first applicant lives in Heidelberg, in the Land of BadenWürttemberg. He is married. His wife is member of the Protestant Church, which is authorised to levy church taxes. In 2005 the first applicant left his church and was no longer obliged to pay church taxes. 19. For the tax assessment period of 2008 the spouses opted for a joint tax assessment. 20. Their 2008 tax bill, dated 22 April 2010, included a special church fee for the first applicant’s wife of 2,220 euros (EUR). As the spouses were jointly liable for income tax and the applicant’s wife’s income was below the minimum taxable amount, the wife’s special church fee was calculated as a proportion of her living expenses, which in turn were calculated on the basis of the spouses’ joint income (see paragraphs 12-14 above). 21. The tax bill applied to both the first applicant and his wife. Page one showed the authority’s tax calculation (Ergebnis des Steuererhebungsverfahrens) in a table, with one column for income tax (Einkommensteuer), one for solidarity tax (Solidaritätszuschlag) and one headed “Protestant Church tax, wife” (Kirchensteuer evangelisch Ehefrau). The third column showed the amount of EUR 2,220. The table further showed that the first applicant had a tax reimbursement claim of EUR 3,423.00, which had been offset against the church fee of EUR 2,220 of his wife. It finished with a credit for the first applicant of EUR 1,203.00. 22. Pages two to four of the tax bill contained a detailed assessment of the taxable annual income of the first applicant and his wife. The document then had explanations of the items. Line 40, out of 114 lines of explanations altogether, stated as follows: “Only the wife is liable for church tax.” Following the explanations, the tax bill provided information on possible legal remedies. As regards the special church fee, it stated as follows: “An objection can be raised to the setting of the church tax and to the fixing of advance payment of church tax. ... An objection can be filed by the person on whom the church tax has been levied” (“Gegen die Kirchensteuerfestsetzung und die Festsetzung der Kirchensteuervorauszahlung ist der Einspruch gegeben. ... Zur Einlegung des Einspruches ist derjenige befugt, gegen den sich die Kirchensteuerfestsetzung richtet.”). 23. The first applicant filed an objection against the tax bill. On 17 December 2010 the tax office dismissed the objection, referring to the Federal Constitutional Court’s decision of 28 October 2010, fully endorsing its reasoning (see paragraph 32 below). 24. The second applicant lives in Sulzbach-Rosenberg in the German Land of Bavaria. 25. The second applicant is a member of the Protestant Church. In 2005 he had an annual income of EUR 10,144. His wife, who was not member of a church, had income of EUR 162,522. In 2005, the second applicant and his wife were jointly liable for annual income tax. 26. On 7 February 2007 the competent tax office charged the second applicant a special church fee of EUR 1,500. The fee was calculated on the basis of his living expenses, which in turn were calculated on the basis of his and his wife’s income (see paragraphs 12-14 above). 27. The second applicant filed an objection to the decision. On 12 December 2007 the tax office dismissed the objection, relying on the Federal Constitutional Court’s case-law that has been settled since 1965 (see paragraphs 56-58 below). 28. The second applicant lodged an action with the Nuremberg Tax Court, asserting a violation of his basic rights. 29. On 18 June 2009 the Tax Court dismissed the action. It argued that the special church fee had not violated the second applicant’s right to equality or his right to freedom of religion or freedom of action and relied on the Federal Constitutional Court’s settled case-law. It refused leave to appeal. 30. On 29 January 2010 the Federal Tax Court dismissed an appeal by the second applicant against the decision refusing him leave to appeal and endorsed the Nuremberg Tax Court’s reasoning. 31. On 14 April 2010 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that he had no income and therefore could not pay the special church fee on his own because it had been calculated on the basis of both spouses’ income. As a consequence, the freedom of religion of both spouses had been violated and spouses in their kind of marriage had been discriminated against when compared with other kinds of marriage. The second applicant argued that he could only remain a member of his religious community if his spouse was willing to pay his special church fee, otherwise he would have to sue her for maintenance. 32. On 28 October 2010, the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 816/10) after joining it, inter alia, with those of the third, fourth and fifth applicants. It considered that the constitutional complaint had not touched on any constitutional questions which needed to be decided as the relevant questions had been settled in a judgment delivered on 14 December 1965 (file no. 1 BvR 606/60, see paragraph 57 below). That judgment was still applicable and there was no doubt that the calculation of a person’s living expenses on the basis of the spouses’ income was in conformity with constitutional law. 33. The third and fourth applicants are a married couple who live in Gera in the German Land of Thuringia. The third applicant is a member of the Protestant Church and had the higher income of the two. The fourth applicant is not a member of a church. In 2004 the third applicant’s income amounted to EUR 53,511 while the fourth applicant’s income was EUR 11,720. In 2005 the sums were EUR 55,033 and EUR 4,928 respectively, while in 2006 they were EUR 54,996 and EUR 12,640. 34. On 29 August 2005, 5 February 2006 and 26 June 2008 the competent tax office levied church tax on the third applicant for the years 2004 to 2006. As the applicants had opted for a joint tax assessment, the third applicant’s church tax was calculated with his income tax as a proportion of the income tax attributable to him, rather than in proportion to his share of the spouses’ total income (see paragraph 12 above). 35. On 23 June 2008 the competent tax office dismissed an objection by the third and fourth applicants against the church tax calculation. 36. The two applicants lodged an action with the Gera Tax Court, asserting a violation of their basic rights. 37. On 31 March 2009 the Tax Court dismissed the action, arguing that the calculation had not violated their right to equality or freedom of religion. The court stressed that the German tax authorities had a wide margin of appreciation regarding tax regulations. The fact therefore that the third applicant’s church calculated its church tax on the base of a percentage of his income tax rather than on a percentage of income raised no doubts as to its legitimacy. The tax court refused leave to appeal. 38. On 8 May 2009 the third and fourth 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 fourth applicant’s decision not to be member of a religious community, the tax authorities had taken her income into account when calculating her husband’s church tax. 39. On 16 November 2009 the Federal Tax Court declared the applicants’ appeal inadmissible for lack of sufficient reasoning. 40. 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. 41. On 28 October 2010, the Federal Constitutional Court declined to consider the third and fourth applicants’ constitutional complaint after joining it, inter alia, with those of the second and fifth applicants (file no. 2 BvR 2715/09, see paragraph 32 above). 42. The fifth applicant lives in Nuremberg, situated in the German Land of Bavaria. In 2004 and 2005 the fifth applicant, who had no income, was a member of the Protestant Church of the German Land of Bavaria. Her husband was not member of a church. The spouses opted for a joint income tax assessment for 2004 and 2005. 43. The competent tax authority levied no church tax on the fifth applicant as she had no income, but on 2 February 2007 applied a special church fee of EUR 3,600 for 2005 and on 27 June 2007 it charged her EUR 1,860 for 2004. The amounts were calculated on the basis of the fifth applicant’s living expenses, which were calculated on the basis of her and her husband’s joint income. 44. The fifth applicant raised an objection against those decisions and applied for a suspension of enforcement. On 23 October 2008 the tax office dismissed her objection, arguing that there had been no violation of the right to equality because there had been an objective and reasonable justification for the difference in treatment. 45. The fifth applicant lodged an action with the Nuremberg Tax Court, again applying to have enforcement suspended and asserting a violation of her right to equality. 46. On 15 June 2009 the Tax Court dismissed the request for suspension of enforcement, arguing that the special church fee did not violate the fifth applicant’s right to equality in view of the Federal Constitutional Court’s settled case-law. 47. On 22 July 2009 the fifth applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging, inter alia, a violation of her right to freedom of religion. She argued that she could not remain in her religious community if her husband, who was not a church member, did not agree to pay her special church fee. 48. On 28 October 2010, the Federal Constitutional Court declined to consider the fifth applicant’s constitutional complaint after joining it, inter alia, with those of the second, third and fourth applicants (file no. 2 BvR 1689/09, see paragraph 32 above).