Article 17 of the Lisbon Treaty

Article 17 of the Lisbon Treaty

The Lisbon Treaty in Part One: “Principles”, under Title II: “Provisions having General Application”, inserts into the Treaty on the Functioning of the European Union a new article, namely Article 17, which did not exist as such in previous EU Treaties. The first two paragraphs of the article had been simply annexed in 1997 as a “declaration” (a sort of footnote of the document) to the Treaty of Amsterdam.

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations

For almost a decade before achieving mention of religion and churches in a European Treaty a Commission of experts in Ecclesiastical State Law (Catholics and Protestants) had being charged by the German Catholic church and the German Protestant church with ensuring that the European Community would “respect subsidiarity” concerning the status of churches, in particular in the field of finances and tax privileges and exemptions from labour law.[1] This declaration was annexed to the Treaty under the French Presidency with the Council of Ministers on Social Affairs presided over by Martine Aubry, then French Minister of Labour, herself the Catholic daughter of former European Commissioner, Catholic and socialist Jacques Delors.

Declaration No. 11 of the Treaty of Amsterdam acknowledged the wide legal diversity existing in the various Member States, with France being a “République laïque” and for instance the Anglican Church the official State religion in the UK.

During the short months of debate in 2003 on the Draft European Constitutional Treaty, the Holy See lobbies present in Brussels[2] worked very hard on three matters: 1) to insert this Declaration into the body if the Constitution, however no longer as a footnote but as an Article, and therefore legally binding; 2) to add to the “respect of subsidiarity” concerning churches, granted by the Declaration, the institutionalisation of a specific form of access for the churches to EU decision makers (“the Union shall maintain an open, transparent and regular dialogue” with churches); and 3) to have a reference to God and to “Europe’s Christian roots” included in the Preamble of the Constitution.

For the Vatican the first two points represented goals to be reached under any circumstance, even at the price of renouncing the third one, which would constitute a pleasing symbolic achievement but without any legal relevance. Hence, the public debate was totally focused on the third point that served as smoke screen diverting attention from the analysis of the first two ones, which passed without any major obstacles. It was included in the section on participative democracy, where religions and churches and philosophical organizations were lined up along with other civil society organizations, albeit in a specific Article.

The crisis of France and the Netherlands rejecting the Constitutional Treaty served to provide the religious lobbies with enough additional time to seclude religions, churches and philosophical organizations from “ordinary civil society” and have them included through what became Article 17 in the “Provisions having General Application” of the Lisbon Treaty.

Article 17

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

EU Commission President Jose Manuel Durao Barroso did not wait for this provision to be sanctioned as an institutional reality in Europe. From the day he took office, he began shaping the “open, transparent and regular dialogue with these churches and organisations” according to his personal views, clearly discriminating between churches and religions on one side and philosophical organisations on the other side, and granting churches and religions a more prominent status. Meetings with non-religious leaders were launched only after criticism in the Parliament of their exclusion from the meetings with church leaders; they were far less frequent and only once attended by the President of the Parliament.  The rotating Council Presidency never met the “non-confessionals” despite routine meetings with religious leaders. And President Barroso has to this date kept the religious and non-religious constituencies apart, refusing to convene joint meetings.

Since its creation in 2004, the European Parliament Working Group on the Separation of Religion and Politics (now the EPPSP) has focussed attention on the meaning and interpretation of the institutional provision of what has become Article 17 of the Lisbon Treaty. It has questioned time and again the criteria for President Barroso’s choice of interlocutors (why no women? how are those who are invited chosen? Whom do they represent? Why two separate meetings – one for religious constituencies, one for non-religious constituencies?) It has questioned the “openness” of the dialogue and its “transparency”. It has questioned the very concept of “dialogue”, when the meetings consist of a sequence of very short “monologues” with no room for any debate and no other outcome than a photo opportunity.

Now that the Lisbon Treaty has come into force and Article 17 is a legally binding provision, the EPPSP will continue monitoring its implementation, in particular in the light of developments last year (2009) like the establishment of official diplomatic relationships between the EU and the Holy See, which acknowledge the Holy See as a foreign sovereign State – and one which, though not a Member State of the EU, has the privilege of using the Euro as its official State currency.

The EU, unlike its Member States, is the result of modern European post-World War II secular politics. It has never had any institutional or ideological footing on religion. Its authority and legitimacy were founded on the principles of modern democracy, with its citizenry as ultimate source of legitimacy and authority, not God or any other entity. Created for economical purposes the EU has developed over the past decades into a complex and very much more comprehensive political reality. Where it becomes involved in the debate on values, principles and ethics it must respect the plural reality of Europe.

The EPPSP was created to monitor developments taking place in Europe and alerting EU decision makers and EU citizens about any attempts by religious groups or other organizations to impose their position on public policies and seek privileges that go against the basic principles and values of modern Europe.

Footnotes