Content

Richard Potz, State and Church in Austria in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 435 - 460

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-435

Bibliographic information
State and Church in Austria Richard Potz Social Facts In 2001 the last census in the traditional form of a questionnaire including a question on religious affiliation was held. After 2001, that type of census was replaced by register censuses, which are based on a combination of existing statistics and do not indicate the religious affiliation of the population. Therefore, one now has to rely on estimates and self-reporting by the churches and religious communities. The figures for Islam and Orthodoxy for example are inaccurate in so far as they are based solely on national origin. Roman Catholic 57.90 % Islamic 6.00 % Orthodox 5.00 % Protestant 3.40 % Alevi 1.00 % Free Churches 0.30 % Buddhist 0.30 % Jehovah's Witnesses 0.24 % Old Catholic 0.16 % Jewish 0.15 % OrientalOrthodox 0.10 % New Apostolic 0.06 % Mormon 0.05 % Belonging to no denomination 22.00 % Historical Background The roots of the sociocultural and psychological factors determining Austrian law on religion go back to the Habsburg CounterReformation and the enlightened church policy of Joseph II., which remained influential until the 19th or 20th century. Because the ecclesiastical legislation cur- I. II. 435 rently in force emanates from all the various political systems operating in Austria since the beginning of the 19th century, reflecting the state of religious policies of their time, a systematic understanding of the law on religion is difficult to achieve. The 1867 Staatsgrundgesetz (StGG: Constitutional Act on the Fundamental Rights of Citizens) signalled a reduction in the denominational bias of the State and the introduction of a denominationally neutral system in ecclesiastical matters; in practice, however, the State administration continued to favour the Catholic Church. In the Bundesverfassungsgesetz (BVG: Federal Constitution of the Austrian Republic) of 1920, the StGG was retained in principle due to a failure to agree on a new set of fundamental rights. After lengthy negotiations, a Concordat with an Additional Protocol was concluded on 5 June 1933 and came into force on 1 May 1934 together with a corporativeauthoritarian Constitution. The Anschluss to Nazi Germany on 13 March 1938 brought an end to the traditional denominational structure of Austria. The Concordat of 1934 was declared invalid, but the Concordat of the German Reich was not extended, so there was no concordat applicable to Austria. According to the Nazi administration, therefore, this situation created an opportunity to establish an exemplary Nazi church policy of a strict separation in Austria. After the reconstitution of Austria in 1945, several laws relating to religion were transferred almost en bloc to the legal system of the Republic.1 Initially, the validity of the Concordat 1933 in domestic and in international law was unclear. In 1957 the Federal Government expressly recognised the validity of the Concordat and an active period of legislation on religion was initiated which in particular brought about a renewal of the law for specific recognised churches and religious societies.2 A further tranche of legislation on religion was introduced in the 1990s, with the specific aim of coping with the problems related to the emergence of new religious movements.3 A third wave of legislation brought a renewal of the 1 Especially the law of 6 July 1938 on Matrimony and Divorce, Gesetz vom 6. Juli 1938 zur Vereinheitlichung des Rechts der Eheschließung und Ehescheidung (im Land Österreich und im übrigen Reichsgebiet). See infra, and the Law on church contribution, Gesetz über die Erhebung von Kirchenbeiträgen im Lande Österreich. 2 Especially the treaties with the Holy See in the 1960s the ProtestantenG 1961 and the OrthodoxenG 1967. 3 Especially the Federal Act on the Establishment of an Institute for Documentation and Information on Sect-Issues (SektenstellenG/EDISG) 1998. Richard Potz 436 IsraelitenG 1890 (in 2012) and the IslamG 1912 (in 2015) and an amendment of the OrthodoxenG 1967 (in 2011). Constitutional Guarantees Principles The most important constitutional provisions in Austrian law relating to religion are contained in the Staatsgrundgesetz 1867, which was declared a constitutional law of the Federal State by Article 149(1) of the Austrian BundesVerfassungsgesetz (BVG) of 1920. Guarantees of individual religious rights are contained in Article 14,4 the institutional guarantees in Article 15. The legal provisions on religion in the Treaty of St Germain of 10 September 1919,5 and Article 9 of the European Convention on Human Rights (ECHR) which has constitutional status, are also of importance. There are also guarantees in constitutional and international law intended to protect religious freedom; these include general rules of nondiscrimination, relating, among other things, to differences in denomination. Comprehensive Protection of Freedom of Religion The constitutional norm of the European Convention on Human Rights overlays the older specific guarantees (freedom of belief, freedom of conscience, freedom of cult, freedom of confession) and summarises them in one "aggregated law on human rights"6 in which the separate guarantees come together. This comprehensive idea of religious freedom also makes it clear once and for all that not only is religious confession protected by the constitutional order, but a Weltanschauung (world view) which is not religionrelated is similarly protected. III. 1. 2. 4 Especially Article 14 StGG: (1) full freedom of belief and conscience is guaranteed for everybody. 5 Section V (Protection of Minorities) of Part III of the Treaty of St. Germain is to be seen as constitutional law according to Article 149 BVG 1920: Of importance is especially Article 63(2): “All inhabitants of Austria have the right to exercise in public or private every kind of belief, religion or confession freely, insofar as their exercise is not incompatible with public order or good morals.”. 6 W. Berka, Die Europäische Menschenrechtskonvention und die Österreichische Grundrechtstradition, in: ÖJZ 1979, 365. State and Church in Austria 437 A particularly important expression of freedom of conscience is the possibility of doing alternative social service instead of military service (Article 9a(4) B-VG). In education law, freedom of conscience is given concrete expression in the opportunity to opt out of religious instruction in school (RelUG Section 1(2)), and in the right of the teacher to refuse to teach in a denominational private school (PrivSchG Section 20). At university level, staff and students have the right not to participate in scientific and artistic tasks for reasons of conscience (UniversitätsG Section 105) In medical law, there must be no discrimination against those who for reasons of conscience either will or will not participate in performing a legal abortion (Strafgesetzbuch Sections 97(2) and (3)), or a medically assisted procreation and pre-implantation genetic diagnosis (FortpflanzungsmedizinG Section 6). Freedom of belief encompasses the right to have any belief, to change this belief or to have no belief, without interference from the state or groups in society. This fundamental right has been shaped by the provisions on secession from a church, which in the case of a recognised church or religious society must be declared before a state administration office to take effect (InterkonfG 1868, Section 6). In case of a registered religious community, even though there is no statutory provision on secession, termination of membership may be declared before a district administration office. Protection of Fundamental Rights As they are fundamental rights, the rights to freedom of religion are in the category of subjective public rights, the infringement of which can be brought before the Constitutional Court or the Supreme Administrative Court. The Constitutional Court has (BVG Article 144(1)) the task of protecting fundamental rights by deciding on complaints against decisions of the administrative authorities, if the complainant claims that one of his or her fundamental rights has been violated by a decision or an unconstitutional ordinance or law (Sonderverwaltungsgerichtshof). In 2014, the judicial control of the administration was expanded by the establishment of administrative courts in each Federal State and a Federal Administrative Court for the Federal administration. The Supreme Administrative Court exercises its authority by deciding on complaints against decisions of the administrative authorities after all other legal remedies have been exhausted (BVG Article 131(1)). 3. Richard Potz 438 4. Provisions of Ordinary Law State law which is relevant to religion comes into two categories: the first deals with questions of the law on religion as, for example, the Recognition Act (AnerkennungsG) 1874, the Act on Confessional Communities (BekGG) 1998 and the Act on Interconfessional Relations (Gesetz über interkonfessionelle Verhältnisse) 1868; the second relates to the legal status of specifically recognised churches and religious societies. The special churchstate law of the Catholic Church in Austria is traditionally found in by treaties with the Holy See; these are recognised as international public law treaties sui generis and are subject to the procedure of transposition (BVG Article 50). According to current Austrian constitutional law, there is no further legal basis for churchstate law by way of agreements. Moreover, the law on religion has permeated the entire legal order over the course of time; thus it cuts across nearly all legal fields, where religion is relevant. Basic Categories of the Austrian System The legal system of the relations between State and Church in Austria is based on two main principles: the fundamental right to individual freedom of religious and philosophical beliefs; and the guarantee, through fundamental rights, of the corporate activities of religious communities in public. In Austria there is no established church: at the institutional level, State and religious communities are separate. The State accepts, however, the activity of religious communities in the public arena. The basic idea of this system is to provide the relevant legal framework for the incorporation of pluralistic religion into society in a context in which, as a matter of principle, the State does not exercise its sovereignty. Ordinary (State) Law The Legal Status of Religious Communities a) Recognised churches and religious societies The constitutional basis of the legal status of recognised churches and religious societies is found in StGG Article 15: 5. IV. 1. State and Church in Austria 439 Every Church and religious society recognised by the law has the right to corporate public religious practice, arranges and administers its internal affairs autonomously, and retains possession and enjoyment of its institutions, endowments and funds devoted to worship, instruction and welfare, but is like every society subject to the general laws of the land. The treatment of churches and religious societies as corporations under public law sui generis carries less positive legal substance than the qualification that the State does not see religion as a private matter. The churches are generally included whenever state legislation relates to corporations under public law, except when the law expressly excludes them.7 The way in which the followers of a denomination can obtain legal recognition was established by the Recognition Act (AnerkennungsG) 1874. According to Section 1 of the Act recognition as a religious association will be granted to the followers of a previously legally unrecognised denomination under the condition, "that (1) religious teaching, service, statutes, and chosen names do not contain anything illegal or morally offensive and (2) the creation and existence of at least one cult community created according to the requirements of this law is guaranteed." This provision has been complemented by Section 11 of the BekGG the 1998. In particular, a new demographic condition for recognition – 2% of the Austrian population – limited the number of candidates significantly. Recognition according to the Recognition Act is granted by ordinance.8 Since 1988 the Constitutional Court has acknowledged a legally enforceable right to recognition. Although recognition is to be granted by way of ordinance, official notice must be given in a case of nonrecognition to make possible an appeal to the Supreme Administration Court. The provisions concerning the churches and religious societies recognised by the Recognition Act are to be found in the Recognition Act itself; however, the law on religion concerning the "historically recognised" churches and religious societies is developed by way of special laws. 7 E.g. in the Law on Private Radio Broadcasting and in the Law Concerning Subsidising Print Media, see infra. 8 On the basis of the Recognition Act the following are recognised by ordinance today: The Old Catholic Church (1877), the Methodist Church (1951), the Church of Jesus Christ of the Latter Day Saints (Mormons) (1955), The New Apostolic Church in Austria (1975), the Austrian Buddhist Religious Association (1983), Jehovah’s Witnesses in Austria (2009), Free Churches in Austria (2013). Richard Potz 440 For the Catholic Church the special law is the Concordat 1933 and additional and complementary treaties.9 According to the Concordat, the State gives the Church a guarantee that it may make laws, decrees and orders within its own field of competence without hindrance (Article 1(2)). The institutions of the Catholic Church with legal personality according to Canon Law also enjoy public law status in the sphere of State Law. Institutions that are to be founded in the future obtain the status of State institutions as soon as the notice of foundation is lodged with the competent Federal ministry (Article 2). The foundation of Church provinces and dioceses as well as important boundary changes must be the subject of a treaty with the Federal government (Article 3).10 There is no State participation in appointment to church offices, with the exception of the operation of the Political Clause in the case of bishoprics (Article 4).11 The Concordat contains rules dealing with the theological faculties, religious orders, the law on church property, and pastoral care in institutions. In the case of difficulties in the interpretation of the Concordat or the occurrence of problems not yet treated which affect State and Church, an amicable solution is reached (Clause of Amicability) or a ruling arrived by mutual consent. The ProtestantenG 1961 represents the conclusion of a process which led to the equal treatment of the Protestant and the Catholic Churches. In comparison with the Concordat this more recent law guarantees greater religious freedom. Section 1(1) gives separate legal recognition to the Church of the Augsburg Confession and the Church of the Helvetic Confession, in addition to the Church of the Augsburg and Helvetic Confessions, at their express request. 9 Treaty concerning the Regulation of Proprietary Relations 1960 as amended by an Additional Treaty 1996; Treaty concerning the Regulation of Questions relating to the School System and Concluding Protocol 1962, and the Treaties on constituting Dioceses concerning the Elevation of the Apostolic Administrative Burgenland to a Diocese 1960, concerning the elevation of the Apostolic Administrative InnsbruckFeldkirch to a diocese 1964, and concerning the establishment of a diocese of Feldkirch 1968. 10 See treaties on Diocesan Establishment in the preceding note. 11 According to this clause the Austrian Federal Government is informed of the name of the person chosen; the Government can then impose conditions of a general political nature. If no agreement is reached, the Holy See is free to appoint the candidate of its choice. The political clause is of little practical relevance nowadays; however, it may encourage the Holy See to consult the Government at an early stage if the candidate is likely to cause controversy. State and Church in Austria 441 The Protestant Church is completely independent of the State in the appointment of all its officers. It is, however, obliged to name legal representatives for all its institutions possessing legal capacity and to inform the State of their names, in addition to the names of the members of the governing body of the Protestant Church. The Act on the Greek Orthodox Church (OrthodoxenG) 1967 first recognised this Church as a whole in addition to the various already existing church communities and also recognised the Greek Orthodox Metropolis of Austria as the only bishopric in Austria. For the purposes of State law, membership results directly from the law for all persons of Orthodox faith who have their permanent address (or in the case of those with no fixed address, have their habitual residence) on Federal territory. Because of the specific structures of the Orthodox Church, which are liable to lead to internal conflicts, provisions are included as to rights of supervision, reminiscent of the state control instruments of the 19th century. In an amendment of 2011 the Orthodox Bishops’ Conference was recognised and the possibility of recognising other Orthodox bishops was created. The Act on the Oriental-Orthodox Churches (OrientalKirchG) 2003 put an end to the unequitable treatment between the Coptic Orthodox Church and the two other OrientalOrthodox churches which were already recognised – the ArmenianApostolic Church since 1973 and the SyrianOrthodox Church since 1985. These churches do not differ doctrinally, notwithstanding their canonical independence. In 2012 the IsraelitenG 1890 was amended. It is based on the concept of the uniform religious community: every Jew belonged to the religious community of the area in which he or she had their permanent address. Although the Law allows the founding of another Jewish religious society according to the Recognition Act 1874 by reason of a difference in religious doctrine, due to the minimum number of believers required for recognition (currently appr. 17.800) this possibility has no practical significance. In 2015, the IslamG 1912 was renewed by a new Act on the External Legal Circumstances of Islamic Religious Societies (IslamG 2015). The draft law has been the subject of an intense political debate, which has not yet subsided, even after the law has come into force. In principle, this law differs from the other special laws in two points: First of all, it is not a law regulating one single Islamic religious society but two: namely the Islamic Religious Community in Austria (IGGiÖ) and the Islamic Alevite Religious Community in Austria (Islamische Alevitische Glaubensgemeinschaft in Österreich, IAGÖ). Secondly, it is a law that not only regulates the external legal circumstances of an existing religious society, but also the precondi- Richard Potz 442 tions for the legal recognition of further Islamic religious societies. A controversial topic was also the ban on basic funding from abroad. All in all, some questions remain still open. b) Registered religious communities The Act on the Legal Status of Religious Communities (BekGG) 1998 created a legal basis for obtaining legal personality for religious communities without at the same time giving them the status of a public law corporation.12 This law does not apply to philosophical communities as being "non-religious belief communities"; there are problems associated with this, however, when viewed from a fundamental rights perspective. The provisions for obtaining legal personality by religious communities were in many ways drafted in terms similar to the law on associations. Registration is obtained on application, subject to the possibility of rejection on specified grounds. At the point of registration, a legal personality in private law is created. As part of the application, the applicant has to prove that at least 300 persons resident in Austria belong to the religious community; these persons must not belong to another religious community or legally recognised church or religious community (Section 3(3)). According to Section 5, the authorities must reject the application if the community's statutes do not meet the legal formal requirements, or if this is necessary in view of its teaching or practice for the protection of the interests in a democratic society, of public order, health, and morals, or for the protection of the rights and freedoms of others. This is a necessary safeguard particularly in the areas of inciting the commission of crime, impeding the psychological development of minors, injuring members' psychological integrity, or the application of psychotherapeutical methods in order to win converts. The religious communities obtain with registration a sort of seal of approval. This has legal relevance beyond the grant of legal personality as, for 12 Registered as religious communities are: Bahá’iReligion, Christian Community- Movement for Religious Revival in Austria, Church of Seventh Day Adventists, Free Christian Community/Pentecostal Community, Hindu Mandi Society, Islamic Shiite Religious Community; Old-Alevite Religious Community; Pentecostal ChurchCommunity of God in Austria; Vereinigungskirche in Austria. The Church of Scientology of Austria has withdrawn its application; the registration of Jahaja Yoga has been rejected (BekGG Section 5(2)). State and Church in Austria 443 example, where the legal order draws legal consequences from the religious dimension as such and not merely from the status of recognition. c) Religious communities as associations According to VereinsG 2002 Section 1(2) this law does not apply to those associations constituted under other legal provisions or which have adopted a different legal form under other appropriate legislation. This makes it clear that religious communities can obtain legal personality by the association route, which is not possible under the previous law. The religious communities constituted according to the VereinsG have equal status with other ideological associations. The Notion of Freedom of Religious Communities The term "internal affairs" (StGG Article 15) as applied to the recognised churches and religious societies is a constitutional term restricting the State's freedom of action. In these affairs the activity of the Church is not State activity: its general and individual acts are not administrative acts within the meaning of the Federal Constitution, so they are not submitted to the control of the Administrative or Constitutional Court. What the term means for a particular church or religious society must be derived from the scope of the functions of that body, and must be defined primarily by the holder of the fundamental right, as it may be understood only within the selfunderstanding of the church or religious society. Ordinary State legislation may not impose a restriction on church action; it must respect the inherent distinctions just drawn and consider other fundamental rights. This opinion, which was developed in the literature, has been accepted by the Constitutional Court.13 The Constitutional Court recognises the right of legally recognised churches and religious societies to the full regulation and administration of their internal affairs without state interference and supervision.14 2. 13 See VfSlg. 3657/1959 (ÖAKR 32/1981, pp. 426), VfSlg. 7801/1976 (ÖAKR 32/1981, pp. 556), VfSlg. 7982/1977 (ÖAKR 32/1981, pp. 559), VfSlg. 11574/1987 (ÖAKR 37/1987/88, pp. 353). 14 VfSlg. 6102/2001. Richard Potz 444 Religious Institutions Legal status of church institutions in general The institutions of the Catholic Church which possess legal personality according to Canon Law also enjoy public law status in the sphere of State legislation. They are granted this status as soon as the notice of foundation is lodged with the responsible ministry (Concordat Article 2 and 10). The institutions of the Protestant Church possessing legal personality become public law entities from the date of the lodging of the notice by the Protestant Church with the responsible ministry (ProtestantenG Section 4(1)). A corresponding provision is also included in the IslamG 2015 (Section 7 nr 3). With regard to all other recognised churches and religious societies, only parishes or cult communities and their associations may in principle attain public law status. Furthermore, institutions of religious communities may make use of all other legal forms permitted in State legislation. Educational institutions: see below, Section VI) Welfare organisations financed (supported) by churches The increasing regulation of social and welfare tasks normally provides for the integration of nonState sponsors of such work into the welfare system. In many areas church institutions have traditionally played an important part. Churches and Religious Societies in the Political System There is a broad political acceptance that churches and religious societies carry out an important function in society, as expressed in the conferring of public law status on recognised churches and religious societies. They belong to those social associations which establish contexts for communication in society and politics. They are important participants in that public dialogue by which citizens are motivated to act responsibly. This leads to the fact that the religious communities are not only integrated in the process of opinionmaking concerning the formulation of State legislation which is relevant for them in a broad sense, but that they also are represented on many advisory bodies and committees. 3. a) b) c) V. State and Church in Austria 445 Religious Societies in State Law on Culture Private Schools State schools financed by the Federal Republic, Federal States, and local authorities are open to everyone, regardless, inter alia, of denomination. Private schools are granted public status if their governors, heads and teachers can guarantee proper and regular instruction in accordance with the aims of Austrian schooling. In the case of legally prescribed types of schools the results achieved in class must be equivalent to those at a State school of the same type. The fulfilment of these conditions is a legal presumption in the case of recognised churches and religious societies. As a result of their public status the reports issued by their schools have the same legal force as those issued by State schools. Recognised churches and religious societies are granted subsidies towards the costs of personnel for denominational private schools with public status (PrivatschulG Section 17).15 This subsidy must be given as a "living subsidy" by means of the appointment of teachers employed by the Federation or the Federal States to the private schools. If this is not possible, an equivalent financial subsidy is granted (Section 19). Only teachers who agree to the appointment and to whose appointment the governing body of the church or religious society also agrees, may be appointed to denominational schools. The appointment must be terminated if the teacher so requests or if the church's governing body declares further employment of the teacher to be intolerable for religious reasons (Section 20). Religious Instruction Religious instruction is guaranteed by Article 17(4) StGG, which provides that the respective churches or religious societies are responsible for classes in religious instruction in schools. Viewed systematically, this Article elaborates the religious freedom of pupils and parents and the parents' right to determine the religious or philosophical education of their children. In 2005, the main objectives of Austrian schooling were incorporated into the VI. 1. 2. 15 On the contrary, private schools run by unrecognised religious communities have no legal claim to financial assistance; this seems questionable on constitutional grounds especially with respect to Article 2 of the first supplementary protocol of the ECHR. Richard Potz 446 Constitution. According to Article 14 Section 5a B-VG, democracy, humanity, solidarity, peace and justice, as well as broadmindedness and tolerance towards all people are fundamental values for schools. Based on these criteria, young people should learn to take responsibility for themselves, for others, the environment and future generations, with a firm basis of social, religious and moral values. The article explicitly stresses that each pupil should be guided towards social comprehension and broadmindedness with regard to the political, religious and philosophical convictions of others. The inclusion of religious values is meant for persons who are open to religious education within a comprehensive school education. The legitimisation of religious instruction in fundamental rights would suggest the introduction of ethics as a compulsory subject. A school experiment in "Ethics" which began in 1997 has not yet been widely adopted. The organisation, implementation and direct control of classes in religious education is left to the respective church or religious society. The State has the right to supervise religious instruction by way of its school supervisory bodies for organisation and disciplinary measures (ReligionsunterrichtsG/RelUG Section 2). Therefore, the churches and the religious societies, not the State, organise religious instruction classes, despite the fact that as a compulsory subject religious instruction enjoys equal standing with other subjects. For all pupils who are members of a legally recognised church or religious society, religious instruction in their denomination is a compulsory subject in primary and secondary schools, and in some special colleges of education. At other schools religious instruction is an optional subject. Pupils aged under fourteen may be withdrawn from religious education by their parents making a request in writing to the Head of the school during the first five days of every school year. Pupils over fourteen may effect such a withdrawal by writing themselves. The curricula for religious education are adopted by the churches and religious societies; the Ministry of Education must be informed of them and publish them, though this is of merely declaratory significance. State approval is not necessary. One restriction is the requirement that only such books and teaching materials may be used as are not in conflict with the aim of educating responsible citizens (RelUG Section 2(3)). Textbooks for religious instruction classes are included in the school book programme according to FamilienlastenAusgleichsG 1967, and are financed by the State. Pupils and teachers are free to participate in religious devotions and ceremonies (primarily, school Mass). Teachers of religious instruction at State schools are appointed either by the Federation or the State or by the churches and religious societies. Only persons who have been qualified State and Church in Austria 447 and approved as such by the competent church or religious society may be appointed as teachers of religious instruction. According to Section 2(b)(1) RelUG in classrooms of public schools and of schools with public status in which religious instruction is a compulsory subject the school must exhibit a cross, if the majority of the pupils belong to a Christian denomination. Pedagogical and Religious-Pedagogical Colleges of Higher Education The Federal Act on the Organization of the Pedagogical Colleges and their Studies of 2005 (HochschulG) provides for the incorporation of the ‘Teachers Training Academies’ into the tertiary sector of education including power to award a bachelor’s degree for teaching appointments. Regarding the structure and organisation of the colleges, the same quality and academic level as provided at the public institutions must be guaranteed. As a consequence, denominational colleges are obliged to observe the general provisions concerning qualification of the teaching staff including performance review, academic autonomy, student co-determination and allowance for previous studies, personnel and material equipment. For the time being, four Catholic Religious-Pedagogical Colleges have been established. The Protestant, Orthodox, Old-Catholic, Eastern-Oriental and Protestant Free Churches, and the Israelite, Islamic, Alevite and Buddhist Religious Societies have started a cooperation with the Vienna Catholic College, including common institutions and courses. Theological Faculties at State Universities Faculties of Catholic Theology There are Faculties of Catholic Theology at the Universities of Vienna, Graz, Innsbruck and Salzburg. Article 5 of the Concordat guarantees the continued existence of these faculties, financed by the State, for the purpose of the academic education of the clergy. Their internal organisation and educational practice is regulated by the State according to the law on universities. The term "internal organisation" is in this context a reference to the organisational provisions of the UniversitätsG (UnivG) 2002; the term "educational practice" refers to the provisions on academic studies in that 3. 4. a) Richard Potz 448 law. There is also an explicit proviso in favour of the terms of the Concordat (UnivG Section 38(1)). The appointment or admission of professors and lecturers must be agreed by the competent church authority. If church authorisation is withdrawn, the teacher must be excluded from exercising the teaching activity concerned. The majority opinion is that the disciplinary measure of compulsory redundancy for a theology professor whose authorisation has been withdrawn according to Article 5(4) of the Concordat does not violate the rights of freedom of religion and conscience, opinion, or academic teaching and research, since the aim is to educate pastors and teachers of religious education.16 On the basis of Article 5 of the Concordat, theology may also be studied at theological colleges established by the competent church authorities. Faculty of Protestant Theology The Federal State is obliged to maintain a Faculty of Protestant Theology with at least six permanent chairs at Vienna University to guarantee the academic education of ordinands, and theological research and teaching (ProtestantenG Section 15). Teachers in the faculty must be members of the Protestant Church. When appointing a professor to a chair, the commission charged with the appointment must consult the Protestant Church authorities. Islamic Theology The introduction of regular studies in Islamic theology in addition to the study of Islamic religious pedagogy was a particular innovation of the IslamG 2015. According to Section 24(1) for the purpose of theological research and teaching and to ensure the academic education of spiritual ministers of Islamic religious societies up to six positions for teaching staff at the University of Vienna are to be created. According to Section 24 (3) IslamG, a separate curriculum must be prepared for every Islamic religious society. On the occasion of the appointment of a professorship provided for in the Act, the Rector of the Universib) c) 16 See VfSlg. 6998/1973, VwSlg. 8419 A/1973. State and Church in Austria 449 ty of Vienna must contact (Fühlungnahme) the Islamic religious societies regarding the persons proposed. This implies the persons teaching theological core subjects are adherents of a religious doctrine (Islamic school) represented in the Islamic religious societies recognised under this Act (Section 24 (4)). Church Private Universities The UniversitätsAkkreditierungsG 1999 put an end to the State monopoly in Austria and made it possible to organise private universities. In 2000 the Catholic Theological Private University of Linz made use of this provision. Mass Media Broadcasting legislation The ORF-G 2001 created a public law foundation with the aim of fulfilling the public service role of ORF (Austrian Radio and Television). Within the framework of broadcasting it must have "adequate regard to the importance of the legally recognised churches and religious societies" (Section 4(1)(12)). According to Programme Directives 1.2.2., not only must events involving churches and religious societies be represented in their social context, but also their beliefsystems. To safeguard the interests of listeners, the Audience Council (Publikumsrat) was established, consisting of 35 members (Section 28(1) ORF-G). The Roman Catholic Church and the Protestant Church are each entitled to nominate one member. The Law on audiovisual media-services (Audiovisuelle Mediendienste- Gesetz) 2001 regulates private broadcasting on terrestrial television as well as radio and television on cable networks and via satellite. Churches and religious societies are expressly not excluded from private broadcasting as being "legal persons of public law" (Section 10(2)(1)). Print media The legally recognised churches and religious societies are expressly mentioned as eligible for subsidies for print media of which legal persons of 5. 6. a) b) Richard Potz 450 public law act as owners, editors, or publishers (PublizistikförderungsG 1984 Section 7(3)). The subsidies are distributed by a council, one of whose members is a representative of the legally recognised churches or religious societies (Section 9(1)(6)). Protection of Historic Monuments Since the 1 January 2010, immovable monuments are only protected on the basis of an ordinance confirming the public interest in their preservation (Section 2 section 4 Act on Protection of Monuments/ DMSG).17 No alterations to or destruction of these monuments are allowed without the consent of the Federal Authority for Monuments (Section 5 Section 1 DMSG). Notwithstanding this provision, consent must be given to an application for alteration if the monument is used for worship by a legally recognized church or religious society and the alteration is necessary for the practice of worship on the basis of mandatory or at least generally applied liturgical instructions. A Council for Historic Monuments has been established, to represent specialist expertise. One representative of the church or religious society concerned takes part in meetings of the Council as an ad hoc member if a monument in majority church ownership is affected or if general problems of sacred or other church monuments are being examined (Section 15 DMSG). Labour and Social Law Collective Labour Law The recognised churches and religious societies are empowered to conclude collective agreements by reason of their status as publiclaw corporations as set out in Section 7 of the Arbeitsverfassungsgesetz (ArbVG) 1974. This opportunity has been used increasingly in recent years. According to Section 132(1) ArbVG, some provisions are wholly or partially inapplicable to businesses and enterprises which directly serve political purposes and denominational, scientific, educational, or welfare pur- 7. VII. 1. 17 Since 30 June 2010 the objects under monument preservation are listed at http:// www.bda.at. State and Church in Austria 451 poses (Tendenzbetriebe). The aim of this arrangement is to prevent the participation of a works council in the making of economic decisions that would lead to a weakening of the specific purpose of the institution. The general exemption from codetermination by employees is not limited to the denominational purposes of recognised churches and religious societies. The first sentence of Section 132(4) ArbVG makes it clear that the provisions regarding the organisation of industrial relations are not applicable to businesses and enterprises which serve the denominational aims of a recognised church or religious society insofar as such provisions are in conflict with the specific nature of the business or enterprise. For this reason each case must be examined in order to determine whether the provision is compatible with the specific nature resulting from the right to selfdetermination. According to the second sentence of Section 132(4) ArbVG, provisions on company agreements in certain matters, and some further provisions, are inapplicable to enterprises and administrative organisations charged with the administration of the internal affairs of legally recognised churches and religious societies. Individual Labour Law Church employment is governed by civil law. An internal church statute on employment and remuneration is a matter of contract law adopted by the churches and religious societies as holders of private law rights. This law is in principle variable within the legal limits on the free elaboration of employment contracts.18 Persons whose activity is characterised mainly by religious, welfare, or social purposes do not count as employees if they are not employed on the basis of a labour contract (Section 36(2) ArbVG). A special relationship with the church or religious societies as employer results from direct participation in the pursuit of denominational aims. This expresses itself in a special sort of allegiance: acceptance of the teach- 2. 18 See especially OGH ArbSlg 9490/1976, OGH 16.9.1987, 9 Ob A 71/87 (ÖAKR 37/1987/88), p. 36). Conflicts between a church or religious society and its officials in matters of private law employment contracts may in principle be taken to court; however all preliminary questions of e.g. the validity of the removal from office, the retirement, the disciplinary measure, the transfer to another post etc., are excluded from the court's decision. See OGH SZ 47/135/1974, SZ 60/80/1987 (ÖAKR 37/1987/88, pp. 371, SZ 60/173/1987 (ÖAKR 37/1987/88, p. 376). Richard Potz 452 ing of the church or religious society and an appropriate way of life, as well as in a special duty of care by the church employer. This allegiance may vary with the importance of a person's work to the church's spiritual mission. Welfare Law Among the persons exempt from full insurance according to the Allgemeines SozialversicherungsG (ASVGSocial Security Act) 1955, Section 5(1) (7), are priests of the Catholic Church, and members of religious orders and similar institutions of the Catholic Church,19 if they do not have contractual relations with other corporations apart from their church or its institutions. If a person who is exempt from full insurance in this way ceases to be a member of the clergy, an order, or similar institution, a certain sum is payable to the new pension insurance institution on transfer (ASVG Section 314). The BundspflegegeldG (Federal Care Constitution Act) 1993 introduced a nationwide (and in principle homogenous) reorganisation of payments to persons who need care. Priests and members of religious orders who are not covered by ASVG Section 3(1) are not included in the range of persons entitled, because they do not receive "basic payment by Federal law". By way of ordinance of the competent Federal ministry, however, persons who are excluded from pension insurance may be included in the range of persons entitled to care allowances. This has been done for secular priests (BGBl II 2002/72), though not yet for members of religious orders. Financing of Churches The State Guarantee of Church Property The possession and enjoyment of church specialpurpose funds is guaranteed by Article 15 StGG: this is a specific application of the general fundamental guarantee of property. According to the unanimous opinion of 3. VIII. 1. 19 Holders of spiritual office in the Protestant churches, who were also previously exempt, were included in full insurance by the ASVG amendment 1980 and the SozialrechtsÄnderungsG 1996. State and Church in Austria 453 both courts and commentators, the independent administration of property is an internal matter for the churches and religious societies. State Payments and Reserve Rights State payments to religious communities exist only in relation to indemnity for financial losses caused during the Nazi occupation. According to the Treaty of Vienna of 1955 (Article 26), Austria is obliged to indemnify those suffering financial losses resulting from Nazi legislation or rioting during the time of Nazi occupation.20 A special problem was and is posed by the rights to restitution and indemnity of the Hebrew community and its institutions, since the necessary proofs required by law are often difficult to find and implementation of these laws has been very slow. Finally, the Federation established a general compensation fund, based on a 2001 treaty, for Jewish property which was confiscated or destroyed during the Nazi period which can also serve for claims of the cult communities and other Hebrew institutions (EntschädigungsfondsG 2001 – Compensation Fund Act). Church Contributions and Taxes The collection of church contributions and assessments for financing its material and staffing needs is an internal matter for a legally recognised church or religious society, but one for which the right to State legal guarantee may be used. A Law on Church Contributions (KirchenbeitragsG) came into force for the Catholic, Protestant, and Old Catholic Churches on 1 May 1939. Adult members are liable to contributions, whether or not they avail themselves of the services of the churches. The decision on and the collection of contributions take place in accordance with an ordinance on church contributions which has been adopted by the churches. The binding character of the ordinance for the members of the church is part of internal church 2. 3. 20 For this reason the Catholic Church at present receives €17,295,000, the Protestant Church €1,113,000, the Old Catholic Church €51,000, the Hebrew Community €308,000, and additionally the equivalent of the salaries of a number of state employees on the basis of an average salary. Richard Potz 454 law. Nonpayment of contributions may be the subject of a civil court action. For those churches and religious societies not subject to the KirchenbeitragsG there is the option of collecting contributions with the support of administrative enforcement. However, at present none of these churches and religious societies makes use of this provision. Status of the Recognised Churches and Religious Societies in Taxation Law The provisions of tax law which are relevant to religion are based partly on the consequences in revenue law resulting from the public law status of churches and religious societies. Also relevant are the conditions which have to be met if the revenue law attributes benefits (reductions, exemptions) to corporations which display ecclesiastical aims in addition to those with public utility or charitable purposes.21 (Section 34 Federal Revenue Act – Bundesabgabenordnung 1961). Access of the Religious Communities to Public Institutions Religious Assistance in the Armed Forces The organisation of Catholic pastoral care in the armed forces is the task of the Bishop for the Armed Forces. He is appointed solely by the Pope on the nonbinding suggestion of the Federal Government or according to the process envisaged in the political clause. Service chaplains are chosen by the bishop with the consent of the Defence Ministry and appointed by the State (Concordat Article 8). The Protestant Military Superintendent is charged with the organisation of Protestant pastoral care in the armed forces. He is nominated by the Protestant Church Council and appointed by the Defence Secretary. In spiritual matters he is subordinate to the governing body of the Protestant Church, in all other matters to the competent commanders of the Federal Army. The chaplains are appointed by the State, but they must be authorised by the Church (ProtestantenG Section 17). Islamic pastoral care was IX. X. 1. 21 The analogous (and because of equal treatment reasons probably necessary) extension of the benefits in revenue law resulting from “ecclesiastical aims” to other religious communities has not yet been put into practice. State and Church in Austria 455 established in accordance with Section 18 IslamG. Orthodox pastoral care was established 2011. Religious Assistance in Institutions Special pastoral care may be organised for public hospitals, medical institutions, nursing homes, prisons,22 and community homes with the consent of the competent church authority. In addition the local pastors of all denominations including those not legally recognised or their representatives have the right of free access to members of their denomination in institutions. Clergy and Members of Religious Orders in State Law In principle it is the selfunderstanding of the relevant religious community which decides who is to be regarded as clergy in State law.23 With respect to political rights, especially concerning the right to be voted into public office, there are no restrictions in State law. Special Procedural Status The clergy may not be summoned to give evidence in criminal, civil or administrative legal proceedings24 on matters entrusted to them during confession or under the obligation of confidentiality resulting from their pastoral office. As this provision protects individual freedom of religion, it also applies to pastors of denominations not legally recognised. 2. XI. 1. 22 Section 85 StrafvollzugsG 1969 (Punishment Act) contains provisions on the religious activities of prisoners. 23 According to a typological description of the VwGH (Slg 9491/1913), if there is any doubt, a “person who is a teacher of the religious doctrine and advisor in religious matters, who supervises the service and the ritual institutions, who is entrusted with the office of preaching, the administration of the service and the decision in ritual questions, and who finally has to administer the register, is to be regarded as clergy”. 24 Section 155(1) Strafprozeßordnung 1975 (Criminal Procedure Law), Section 320(2) Zivilprozeßordnung 1895 (Civil Procedure Law), Section 48(2) Allgemeines VerwaltungsverfahrensG 1991 (General Administration Procedure Law). Richard Potz 456 Special Status in Military Law The following persons are exempt from military service or social service for conscientious objectors, if they belong to a legally recognised church or religious society: priests; persons who work in pastoral care or religious teaching on the basis of a completed course of theological studies; members of religious orders after taking lifelong vows; students of theology who are preparing for spiritual office (Section 18(3) WehrG 1990 (Defence Act), Section 13(a)(1) ZivildienstG 1986 (Civilian Service Act). Matrimonial and Family Law Religious Upbringing of Children25 The parents of children who have not yet attained majority in religious matters may for as long as the marriage continues freely agree on the denomination or philosophy according to which they wish to bring up their children. The agreement ends with the death of either spouse. If one person has sole custody of a child he/she may decide on the nature of his or her religious upbringing. Guardians and trustees, however, require the authorisation of the guardianship court. In the case of a change of religion for children of twelve or over, their consent is necessary. If the parents cannot reach agreement, a decision may be sought from the guardianship court. This must grant a hearing to children of ten or over. From the age of fourteen every person has the right freely to choose a religious denomination according to his or her own conviction and if necessary must be protected in that choice by the authorities.26 Church and State Matrimonial Law In Austria it is in principle possible to be married only by Canon Law without legal recognition in State legislation. 2. XII. 1. 2. 25 Sections 1 to 3 BundesG über die religiöse Kindererziehung 1985 (Federal Law Concerning Religious Upbringing of Children). 26 Section 4 BundesG über die religiöse Kindererziehung. State and Church in Austria 457 Provisions in Criminal Law The classification of certain acts as religious offences is essentially to protect the religious peace and people's religious convictions against disparagement or violation. For this reason the relevant provisions of the Penal Code (StGB) do not apply only to legally recognised churches or religious societies but to all those with a permanent community situated within the national territory. As religious offences in the narrower sense, the StGB cites the disparagement of religious doctrines27 and the disturbance of a religious worship.28 A more serious punishment is available for ‘Incitement to violence’.29 XiV. Bibliography Studies and reference books H. Kalb/ R. Potz/ B. Schinkele, Religionsrecht, Vienna 2003 R. Potz/ B. Schinkele, Religionsrecht im Überblick, Vienna 22007 R. Potz/ B. Schinkele, Religion and Law in Austria, Alphen aan den Rijn 2016 XIII. 27 According to Section 188 StGB: a person who derides or disparages a person or an object worshipped by a church or religious society on Austrian territory, or a religious doctrine, a legally permitted tradition or a legally permitted institution of such a church or religious society in circumstances in which such behaviour is apt to cause a breach of the peace, is punishable with a prison sentence up to six months or a fine of up to 360 daily instalments. 28 According to Section 189(1) StGB, a person who prevents or disrupts a legally permissible church service or a similar form of religious ceremony or worship of a church or religious society on Austrian territory by violence or the threat of violence is punishable with a prison sentence of 2 years. Sect 2 contains less serious disruptions of religious worship by mischief. 29 According to Section 283 StGB a person who publicly in a manner calculated to endanger public order, or perceptible by a broad public provokes or incites explicitly to violence towards a church or religious community or towards another group defined by the criteria of race (ethnicity), colour, language, religion or belief, birth, national or ethnic origin, gender, disability, age, sexual orientation, or towards a member of such a group, is to be punished with imprisonment of up to two years. The same applies to any person who perceptible by a broad public stirs up hatred towards one of these groups, or humiliates it in such a way as to interfere with human dignity and thus intending to disparage it. Richard Potz 458 Periodical Österreichisches Archiv für Recht und Religion (öarr), formerly Österreichisches Archiv für Kirchenrecht (ÖAKR), since 1950. State and Church in Austria 459

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Abstract

Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.

Zusammenfassung

Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.