Following the two groundbreaking rulings of the Federal Constitutional Court last week on self-determination at the end of life and on strengthening ideological neutrality in the courtroom ("headscarf ban for legal trainees"), the Institut für Weltanschauungsrecht (ifw - Institute for Worldview Law) founded by the gbs can report a third success within a few days: In the ifw case of the Frenchman Thomas Bores, the Archdiocese of Berlin revoked the church tax assessment at the end of February 2020 after five years of legal wrangling and several waves of negative media coverage. A commentary by ifw director Jacqueline Neumann.
Thomas Bores moved from France to Germany and suddenly had to pay church tax. Why? He had unwittingly become a target of the dragnet investigation of the two large churches in the state of Berlin. While Bores was baptized as a Roman Catholic in France, he has always had an atheistic conviction and expresses this to the outside world. He had no connection to the Catholic Church, neither in France nor in Germany. In secular France there is no church tax since 1789. An official resignation from the Catholic Church is not possible according to the French state law. When Bores moved his residence from France to Germany in 2013, he registered as a non-denominational person with the district office in Berlin. Despite declaring his lack of denomination to the registration office, the church tax office at the Prenzlauer Berg tax office sent him a questionnaire to determine whether he belonged to a religious community under public law. In this questionnaire he was asked, among other things, about his religious affiliation, his place of birth, and his parents' personal data at the time of his birth.
In doing so, the church tax office referred to sections 88, 90 of the German Fiscal Code (AO) and quoted these norms accordingly. After section 88 paragraph 1 AO, the "tax authority" determines the facts ex officio. A presumption of the church. Due to this formulation and due to the fact that the church tax office operates under the same address as the fiscal authority (even though it is a purely ecclesiastical institution), Bores erroneously assumed that this was a governmental request for information which is enforceable, and answered it. In this context, he also stated that he is without any religious affiliation. At no time was it clarified that the letter actually came from a religious community and thus there was no legal obligation to answer the letter.
Nevertheless, the Archbishop's Ordinariate requested information from the baptismal register at the diocese in his place of birth in France in order to determine his church membership and, in the event that a baptismal entry was determined, requested that a copy of the baptismal certificate be sent. Instead of turning to Bores himself in case of any doubts regarding religious affiliation, a church search was carried out in a cross-border, internal investigation in violation of German and European data protection law.
The diocese in France sent a baptism certificate to the archdiocese, which is why Bores had church wage tax deducted from his salary for the year 2014. The monthly deduction only ended when he declared his withdrawal from the German Catholic Church at the local court, even though he had never become a member of this church tax association. For this reason, Bores, supported by the Institut für Weltanschauungsrecht (ifw), filed a complaint against the church tax assessment with the Berlin Administrative Court in June 2016. However, the Administrative Court remained inactive. Despite complaints of delay, the court has not yet heard the case.
In a turn of Thomas Bores' proceedings, the Archdiocese of Berlin announced at the end of February 2020 that the church tax assessment had been revoked. Due to the annulment of the church tax assessment, the proceedings before the administrative court must be declared concluded. The constitutional court review of the practice of dragnet searches and the forced confessionalization of foreigners, which ifw ultimately seeks to achieve, is now no longer possible through this channel. Bores says: "I am glad that the Catholic Church has come to its senses and I hope that the church tax office Berlin will stop its dragnet investigation". The ifw also considers the repeal a success. Key to this was the willingness of the affected person to engage in five years of legal wrangling and the great public response in several waves of church-critical media coverage.
The parallel proceedings on the forced confessionalization of a former GDR citizen
Recently, however, a parallel procedure supported by ifw was brought before the Berlin Administrative Court, also after several complaints of delay: Here, a former GDR citizen had become a victim of the dragnet investigation of Berlin's major churches and suddenly had to pay church tax after almost 60 years of her life as a denomination-free person. Why? She too had suddenly received a questionnaire from the church tax office and answered truthfully. After the Protestant Church had used this method to find out her parents' personal details and her place of birth, it sent an inquiry to the congregation in her place of birth. Within the framework of this data inquiry, it received the information that the person concerned had been baptized in the GDR. In the "Seelenkartei" (SPIEGEL 29/2019) of the baptismal parish office, only the resignation of her parents was noted alongside her baptism, but not her own resignation. The parents resigned from the Protestant Church when the person concerned was still an infant. Throughout her life, this woman had no knowledge of church membership. She could not remember her baptism either, of course. She was brought up free of religion and took the youth consecration vow. She never had any association with the church. She was not listed as a church member in either the state registers or the church membership registers.
That didn't matter to the Administrative Court. It also swept aside the data protection concerns of the dragnet investigation practice. The court ruled that the person concerned had remained a church member despite the departure of her parents and despite lacking knowledge (Ref.: 27 K 292.15). Yet there could no longer be any question of voluntary membership. Trial counsel and ifw advisory board Eberhard Reinecke says: Free will can only be formed where alternatives are discernible. I can only make a decision about membership if I know that I am in the church.
In its evaluation of the Administrative Court ruling, the ifw came to the conclusion that the reasoning of the court is gravely flawed. In a written statement dated 2 March 2020, attorney Reinecke therefore filed an appeal on behalf of the claimant. In this respect, this also constitutes a clear case of forced denominationalisation, which is inadmissible in a secular constitutional state. Thus the claimant asked in her statement: "I live in a constitutional state now, don't I?" and "All this cannot be law. And if it is law, the people's representatives must change the law."
Connection between the two proceedings?
The damage to the church's image and the financial damage caused by the resignation of church members who feel repelled by the church's collection procedure is presumably enormous already, which prompted the blogging theologian Dierk Schäfer to comment: "A church with such lawyers does not need enemies". Even on the website of the Catholic Church katholisch.de there was talk of a "disastrous public image" and "senseless legal disputes". The church commentator Felix Neumann summarized: "The image of the church being primarily interested in money is confirmed". He therefore recommended: "Hence for strategic self-interest alone, the churches would be well advised to enforce their right less as a matter of principle before the courts".
Did the Catholic Church learn from the mistakes of the Protestant Church and for these reasons withdraw the tax assessment against Thomas Bores? What does the "ecclesiastical considerations" in the official justification of the Archdiocese of Berlin for the cancellation of the church tax assessment suggest?
Nevertheless, the church remains in a dilemma with this tactical approach as long as it does not strategically adapt to today's social realities. How does it affect church members and politics when the collection of church tax is to be enforced so rigorously against denomination-free individuals and then arbitrarily suspended by the church leadership after years of dispute, only when the legal and media damage is deemed too severe.
Or the political damage too? For perhaps in these particular Berlin cases, there is also a growing concern that the general annoyance about the churches' actions in a largely denomination-free urban society will trigger further political soundings in the Berlin Senate, leading to a decrease of church privileges? And these questions arise with ever greater urgency. What would be required by politics and the constitutional state?
Mandate for politicians: dismantle outdated church privileges and educate those affected about the risks of forced confessionalization.
The church privileges regarding the collection of church tax by the state (i.e. de facto the collection service for recovering the membership fees of a religious worldview community) are in conflict with the separation requirement of state and religion and today's societal conditions. In cities like Berlin, the majority of the population is non-denominational.
Even if the legislator wishes to maintain the state collection of church tax, reforms of the state resignation regulations are advisable, which take sufficient account of the will and the right of self-determination of the citizens, and would also avoid cases such as the one involving the former GDR citizen. One of the current reform options stipulates that the obligation to pay church tax only applies if the religious person of full legal capacity has affirmed his or her membership of the church from the age of 14 (see "Staatliches Kirchensteuerrecht an die Rechtswirklichkeit anpassen" pp. 269 et seq. in: "Aktuelle Entwicklungen im Weltanschauungsrecht". Edited by Dr. Jacqueline Neumann, judge a.D. Dr. Gerhard Czermak, Prof. Dr. Reinhard Merkel, Prof. Dr. Holm Putzke. Nomos Verlag 2019).
Furthermore, reforms are also needed to protect foreigners migrating to Germany, as in the case of the Frenchman Thomas Bores. When foreigners from the EU or third countries move to Germany, can they be reasonably expected to resign from a church in Germany which they have never joined? Can they be expected to engage in costly legal disputes with the church for years in order to avoid paying church tax? Or does the state not have a duty to inform the affected persons? A church tax, which is collected by the state as in Germany, is almost unique in the world and hardly comprehensible even for German citizens (and judges) regarding the state church connections and ramifications.
Similar to the Frenchman Thomas Bores, there are many denomination-free persons migrating to Germany who are not familiar with German church tax law and do not suspect that they will suddenly be liable to church tax when they cross the border, just because they were possibly baptized as a baby or infant in their home country. How could they anticipate that according to German law one of their first actions after crossing the border would have to be to go to the local court and declare their departure from the church?
In view of the excesses of the German church tax system, it now seems appropriate for the state to educate immigrants about the risks of forced confessionalization in Germany. This could be done, for example, in such a way that every immigrant who registers with the residents' registration office and is asked about their religious affiliation receives an information sheet that informs them about the applicable German church tax law. In Berlin, the only federal state in which the two large churches conduct the dragnet investigation, the information sheet would also need to inform about the church questionnaire procedure and the associated exchange of data with the respective home country. After all, as is well known, the entry of persons in the state register of residents is not sufficient proof for the churches in Berlin. They also send their questionnaires to determine religious affiliation when persons are already listed by the state as denomination-free. At a time when consumer protection is discussing the introduction of food traffic lights to label healthy and unhealthy products, the outlined education appears to be an overdue measure for religious consumer protection.
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