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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KLEIN AND OTHERS v. GERMANY - 10138/11 (Judgment : Remainder inadmissible (Article 35-3-a - Manifestly ill-founded Ratione materiae) No violation of Article 9 - Freedom of thou...) [2017] ECHR 327 (06 April 2017)
URL: http://www.bailii.org/eu/cases/ECHR/2017/327.html
Cite as: ECLI:CE:ECHR:2017:0406JUD001013811, CE:ECHR:2017:0406JUD001013811, [2017] ECHR 327
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FIFTH SECTION
CASE OF KLEIN AND OTHERS v. GERMANY
(Applications nos. 10138/11 and 3 others - see appended list)
JUDGMENT
STRASBOURG
6 April 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Klein and Others v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Erik Møse, President,
Angelika Nußberger,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Carlo Ranzoni,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 28 February 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in four applications (nos. 10138/11, 16687/11, 25359/11 and 28919/11) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five German nationals, Mr Jörg Max Klein (“the first applicant”), Mr Fritz Nussbaum (“the second applicant”), Mr Philip Redeker (“the third applicant”), Mrs Heike Redeker (“the fourth applicant”) and Mrs Uta Gloeckner (“the fifth applicant”), on 8 February 2011, 9 March 2011, 21 April 2011 and 6 May 2011 respectively.
2. The first applicant was represented by Ms J. Neumann, a lawyer practising in Cologne, the second applicant by Mr H. Übler, a lawyer practising in Sulzbach-Rosenberg, the third applicant by Mrs H. Redeker, the fourth applicant in this case and a lawyer practising in Gera, while the fifth applicant was represented by Mr D. Kehlen, a lawyer practising in Nuremberg. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens of the Federal Ministry of Justice and Consumer Protection.
3. The applicants alleged, in particular, that the levying of church taxes or special church fees had violated their freedom of religion under Article 9 of the Convention.
4. On 8 June 2015 the applications were communicated to the Government.
5. Third-party comments were received from the Evangelical Church in Germany (Evangelische Kirche in Deutschland), the Evangelical Church of Baden (Evangelische Landeskirche in Baden), the Evangelical Church in Central Germany (Evangelische Kirche in Mitteldeutschland), the Evangelical-Lutheran Church in Bavaria (Evangelisch-Lutherische Kirche in Bayern) and the Association of the German [Catholic] Dioceses (Verband der Diözesen Deutschlands, VDD) and the Giordano Bruno foundation, which had been given leave by the President on 24 September 2015 and on 6 January 2016 respectively to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
6. On 13 October 2016 amended facts regarding the background to the cases were submitted to the parties for comments.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
7. The applicants were born in 1964, 1935, 1963, 1965 and 1963 respectively.
A. Background to the cases
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 public-law 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, Baden-Württemberg, 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 “income-splitting”, “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.
B. The specific circumstances of each case
17. The facts of the cases, as submitted by the parties, may be summarised as follows.
1. Application no. 10138/11 (the first applicant)
18. The first applicant lives in Heidelberg, in the Land of Baden-Württemberg. 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).
2. Application no. 16687/11 (the second applicant)
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.
3. Application no. 25359/11 (the third and fourth applicants)
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).
4. Application no. 28919/11 (the fifth applicant)
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).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Basic Law
49. Article 140 of the Basic Law provides that Articles 136-39 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows:
Article 137
“(1) There shall be no State Church.
(2) The freedom to form religious societies shall be guaranteed. ...
(3) Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.
(5) Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ...
(6) Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land.
...
(8) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land.”
Article 140
“The provisions of Articles 136, 137, 138, 139 and 141 of the German Constitution of 11 August 1919 shall be an integral part of this Basic Law.”
B. Relevant Provisions of the Tax Codes
50. Article 36 of the Income Tax Code (Einkommensteuergesetz) provides that the obligation to pay income tax arises after the expiry of the assessment period and after taking any advance payments into account.
51. Article 218 § 1 of the Fiscal Code (Abgabenordnung) provides that the tax bill constitutes the legal basis to realise claims arising from the tax regime. According to paragraph 2 the authorities decide over disputes arising from paragraph § 1 by way of a settlement notice (Abrechnungsbescheid).
52. Section 41 of the Tax Court Act (Finanzgerichtsordnung) provides for the possibility to lodge a declaratory action. It is recognised by German legal practise that under this provision also a preventive declaratory action can be lodged.
C. Provisions on levying the general church tax and the special church fee within the German Länder
53. Acts on the Collection of Church Taxes in the Länder of Baden-Württemberg, Bavaria and Thuringia provide details about church taxes for those Länder. They state that churches in those Länder which are authorised to levy taxes are entitled to levy the church tax or a special church fee.
54. Under Article 19 § 4 of the Act on the Collection of Church Taxes of the Land of Baden-Württemberg (Kirchensteuergesetz Baden-Würtemberg) as in force at the relevant time, the church tax was levied on top of the tax on income. The provision stated that if only one spouse belonged to a church entitled to levy taxes, that church imposed the tax in accordance with the tax assessment relating to that person. If the spouses were taxable together, the church tax of the spouse liable to pay tax was calculated proportionally as a supplement to income tax.
55. Under Article 5 § 5 of the Act on the Collection of Church Taxes of the Land of Baden-Württemberg a church authorised to levy taxes levied the special church fee in cases where a member was married, taxable together with his or her spouse and had no taxable income. According to further provisions of the law (Kirchensteuerbeschlüsse), the special church fee was calculated on the basis of the liable person’s living expenses instead of their income. Those expenses were based on the joint income of the liable person and their spouse.
D. Relevant case-law
56. On 14 December 1965 the Federal Constitutional Court delivered a leading judgment concerning the right of churches to levy church taxes (file no. 1 BvL 31/62, 1 BvL 32/62). It held that a person who was not a member of a church authorised to levy church taxes was not liable to pay church tax on account of his or her spouse’s membership of a church.
57. On the same day the Federal Constitutional Court delivered a further judgment on the issue of church taxes (file no. 1 BvR 606/60). It held that if only one spouse belonged to a church entitled to levy taxes and that person had no income in terms of the regulations of the Income Tax Code (“ein eigenes Einkommen im Sinne des Einkommensteuergesetzes”), the church was not allowed to take the other spouse’s income into account as a basis for calculating the church tax (Halbteilungsgrundsatz) because taxes were levied on the basis of an individual’s personal income. The spouse who was not a member of a church could not be regarded as a person liable to pay tax or be assumed to be liable to pay for the other spouse’s tax. At the same time, it held that in such cases the person may be liable to pay a special church fee, calculated on the basis of the liable person’s living expenses instead of their income. If those expenses were difficult to calculate, the calculation could be based on the spouses’ joint income.
58. That case-law has been applied consistently by the domestic tax courts, including the Federal Tax Court (see no. I R 76/05, 19 October 2005 and I B 109/12, 8 October 2013), and has been confirmed by the Federal Constitutional Court on 19 August 2002 (see no. 2 BvR 443/01).
THE LAW
I. JOINDER OF THE APPLICATIONS
59. Given their similar factual and legal backgrounds, the Court decides that the four applications should be joined, in accordance with Rule 42 § 1 of the Rules of Court.
II. APPLICATION NO. 10138/11 (THE FIRST APPLICANT)
A. Scope of the application
60. Having regard to the submissions made by the first applicant in the course of the proceedings before this Court, the Court considers it necessary to clarify at the outset that the scope of the present case is delimited by the complaints raised in the first applicant’s original applications to the Court. In this regard, the Court notes that in his application and submissions the first applicant made factual statements only with regard to the tax bill for the year 2008. The Court concludes therefore that the applicant, represented by a lawyer, cannot be considered as having validly raised complaints about the tax bills concerning the years after 2008.
B. Alleged violation of Article 9 of the Convention
61. The first applicant complained that the system of collecting church taxes in Germany, as it had been applied to him, had infringed his right to freedom of religion, as provided in Article 9 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
62. The Government contested that argument.
1. Admissibility
63. The Government submitted that the first applicant could not claim to be a direct victim of a violation of Article 9 of the Convention as he had neither personally been charged the special church fee nor been liable to pay it. It had only been his wife who had been liable to pay the special church fee as she had been the recipient of the respective tax bill.
64. The first applicant maintained that he had been a victim of a violation of Article 9 of the Convention as his wife’s special church fee had been offset against his tax reimbursement claim.
65. In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. The individual concerned must be able to show that he or she was “directly affected” by the measure complained of (see Lambert and Others v. France [GC], no. 46043/14, § 89, ECHR 2015 (extracts)). This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI), even though the Court should have regard to the fact that an applicant had been a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009).
66. Turning to the case at hand, the Court notes that the special church fee levied on his wife was offset against the first applicant’s tax reimbursement claim (see paragraph 21 above). The Court considers that, irrespective of the question of whether or not the first applicant was liable for the special church fee pursuant to domestic law, he was directly affected by the impugned way of collecting his wife’s special church fee. In view of the foregoing, and given the need to apply the criteria governing victim status in a flexible manner, the Court accepts that the first applicant, even if the part of the tax bill related to the special church fee did not concern him directly, can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government’s objection that the first applicant lacked victim status.
67. In so far as the Government submitted that the applicant could have applied for a settlement notice according to Article 218 of the Fiscal Code (see paragraph 51 above) or that he had had the possibility to lodge a preventive declaratory action (vorbeugende Feststellungsklage, see paragraph 52 above), the Court notes that the Government have not invoked in substance the rule to exhaust domestic remedies and, accordingly, sees no reason to address this point as an objection of inadmissibility.
68. The Court notes that no other ground for declaring inadmissible the first applicant’s complaint under Article 9 of the Convention has been established. It must therefore be declared admissible.
2. Merits
(a) The first applicant’s submissions
69. The first applicant submitted that he had been compelled to pay his wife’s special church fee as it had been offset against his tax reimbursement claim. Furthermore, the tax bill had not contained any information on his right to raise an objection against the offsetting or the possibility to apply for a settlement notice. He did thus not have the possibility to apply for a settlement notice. Furthermore, by opting for a joint tax assessment he had not consented to the offsetting as the decision to file a joint tax assessment had been motivated solely by financial considerations and had had nothing to do with a negative confession of religious beliefs.
(b) The Government’s submissions
70. The Government submitted that the special church fee had only been levied because the first applicant and his wife had opted for a joint tax assessment. If they had opted for a separate income tax assessment, the church fee would not have been levied. In that case, his income tax would have increased by EUR 8,400. Accordingly, the spouses’ choice for joint tax assessment had led to a decrease in the first applicant’s tax burden.
71. Furthermore, as far as the offsetting of the first applicant’s wife’s special church fee against his tax reimbursement claim was concerned, the first applicant could have prevented this offsetting by lodging a preventive declaratory action.
72. The Government further argued that, once the offsetting had taken place, the first applicant had had the possibility to apply for a settlement notice under Article 218 of the Fiscal Code. He had thus had the possibility to be repaid the money that had been taken as a result of the offsetting of his wife’s special church fee.
(c) Third parties’ comments
(i) The Churches’ common submissions
73. The intervening churches (compare paragraph 5 above) submitted that the manner and legal framework for raising funds for churches formed part of the relationship between the State and churches and was thus subject to the wide margin of appreciation which was given to States in the building of relations with churches. The levying of church taxes formed part of the right to the self-administration of churches in the Länder. Only church members were obliged to pay a contribution for their religious activities.
74. They further submitted a guideline (Dienstanweisung) for tax authorities without, however, specifying which authority issued it, when it was issued and whether it applied to the first applicant at the relevant time. They alleged that on the basis of this guideline the automatic offsetting of the first applicant’s tax reimbursement claim against his wife’s special church fee could have been stopped upon his opposition.
(ii) The Giordano Bruno Foundation’s submissions
75. The Giordano Bruno Foundation submitted that the assessment of the special church fee on the basis of living expenses rather than on a member’s personal income, entailed, de facto, that the spouse who was not a member of a church had to pay the fee, thus forcing that person to contribute to church finances.
(d) The Court’s assessment
76. Having regard to the first applicant’s complaint, that he had been compelled to pay the special church fee levied on his wife without being a member of that church, the Court considers it appropriate to examine this case from the angle of the negative aspect of freedom of religion and conscience, namely the right of an individual not to be compelled to be involved in religious activities against his will (see, mutatis mutandis, Bruno v. Sweden (dec.), no. 32196/96, 28 August 2001).
(i) whether there was an interference
77. The Court reiterates that as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A).
78. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Furthermore, the Court has had occasion to point out that Article 9 enshrines negative rights, for example the freedom not to hold religious beliefs and not to practise a religion (see, to this effect, Sinan Işık v. Turkey, no. 21924/05, § 38, 2 February 2010; and Alexandridis v. Greece, no. 19516/06, § 31, 21 February 2008).
79. This general right protects everyone from being compelled to be involved in religious activities against his will. The payment of a specific tax to a church to fund its religious activities may, in certain circumstances, be seen as such involvement (see Lundberg v. Sweden (dec.), 36846/97, 28 August 2001).
80. The Court notes that the tax bill at issue applied to both the first applicant and his wife (see paragraph 21 above). At the same time, one column of the table showing the result of the authority’s tax assessment was headed “Protestant Church tax, wife”. Furthermore, the explanatory part of the tax bill stated that only the first applicant’s wife was liable for the church tax (see paragraph 22 above). The Court, as a consequence, shares the Government’s point of view that it was the wife on whom the special church fee was being levied and not the first applicant.
81. Nevertheless, the Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers or for those not belonging to any institutionalised religious group like the first applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of that provision when the State brings about a situation in which individuals are obliged - directly or indirectly - to contribute to a religious organisation of which they are not a member. In the present case, the special church fee which was levied on the first applicant’s wife was, in fact, subtracted directly from the first applicant’s tax reimbursement claim by way of an offset due to the spouses’ decision to have their income tax assessed jointly.
82. The Court observes that in the material submitted by the parties there is nothing to suggest that the first applicant had first to consent to the offsetting of his wife’s special church fee against a potential tax reimbursement claim, but that it followed as an automatic consequence of the spouses’ decision for a joint tax assessment. The Court concludes that German legislation brought about a situation where the first applicant was subjected to his wife’s financial obligations towards her church without himself being a member of it.
83. It follows that there has been an interference with the negative aspect of the applicant’s rights under Article 9 of the Convention.
(ii) whether the interference was justified
(α) General Principles
84. In order to determine whether or not an interference entails a violation of Article 9 of the Convention, the Court must ascertain whether it satisfied the requirements of Article 9 § 2, that is to say, whether it was “prescribed by law”, pursued a legitimate aim under that provision and was “necessary in a democratic society” (İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 105, ECHR 2016).
85. In particular, an instance of interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among many other authorities, İzzettin Doğan and Others, cited above, § 105).
86. As a matter of case-law, in cases concerning the right to freedom of religion the Court has consistently left the Contracting States a certain margin of appreciation in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Manoussakis and Others v. Greece, 29 September 1996, Reports of Judgments and Decisions 1996-IV, § 44).
87. In delimiting the extent of the margin of appreciation, particularly as regards the building of the fragile relations that exist between the State and religions, the Court reiterates that there is no common European standard governing the financing of churches or religions, such questions being closely related to the history and traditions of each country (see Wasmuth v. Germany, no. 12884/03, § 63, 17 February 2011; Spampinato v. Italy (dec.), no. 23123/04, 29 March 2007; and Manoussakis and Others, cited above, § 44). The margin of appreciation left to Contracting States in this regard is thus a wide one (see Schilder v. The Netherlands (dec.), no. 2158/12, 16 October 2012; Miroļubovs and Others v. Latvia, no. 798/05, § 80, 15 September 2009; Alujer Fernández and Caballero García v. Spain (dec.), no. 53072/99, ECHR 2001-VI; and Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII).
(β) Application to the present case
88. The Court observes that there is no dispute between the parties that there was a legal basis for the impugned offsetting of the first applicant’s tax reimbursement claim against his wife’s special church fee.
89. Furthermore, the interference pursued a legitimate aim within the meaning of Article 9 § 2 of the Convention, namely to guarantee the rights of churches and religious communities which, under German law, have the right to levy church taxes (compare Wasmuth, cited above, § 55). The Court therefore has to decide whether the impugned interference was necessary in a democratic society.
90. In this regard the Court notes that there are two aspects to the first applicant’s complaint. Firstly, that he was compelled to pay his wife’s church fee as it had been offset against his tax reimbursement claim. Secondly, that the tax bill did not contain any information on his rights with regard to that offsetting.
91. In determining whether, in the light of the above principles, the interference with the first applicant’s rights under Article 9 of the Convention is justified in principle and proportionate, the Court notes, at the outset, the first applicant’s submission that the decision to file a joint tax assessment was motivated solely by financial considerations (see paragraph 69 above). The Court considers important that, as a consequence of German tax legislation, the couple’s choice of a joint tax assessment not only had consequences for the calculation of the couple’s overall tax, but also for the administration of the tax claims against the first applicant and his wife, which were put together in one document.
92. The Court further notes that at the time the first applicant and his wife decided for a joint tax assessment, they did not know whether the first applicant would have a tax reimbursement claim that would involve offsetting his wife’s special church fee, or whether the tax authorities would have additional tax claims that would prevent such an offsetting. That was because offsetting is part of the procedure for calculating taxes and the tax authorities only calculate the final income tax after spouses have submitted their tax declaration and made their choice of a joint or separate tax assessment. Under those circumstances, the Court doubts whether a preventive declaratory action can be regarded as a counterbalancing factor in the circumstances of the case, all the more so as the Government have not given any details as to the preconditions and effects of such an action.
93. As far as concerns the Government’s argument that the decision in favour of a joint income tax assessment led to a net reduction in the first applicant’s tax burden, even though his wife’s special church fee was deducted from his tax reimbursement claim, the Court holds that that reduction does not remove the link between the spouses’ choice on financial grounds of a joint tax declaration and the possibility for the tax authorities to offset the special church fee claim against a tax reimbursement claim.
94. Nevertheless, that link has to been seen in the context of the domestic tax system as a whole. The Court considers it important that offsetting does not imply an irreversible financial loss (compare paragraph 16 above). It notes the Government’s argument in that regard that, to undo the offsetting, the first applicant could have applied for a settlement notice under Article 218 of the Fiscal Code. Accordingly, the first applicant’s obligation to pay his wife’s special church fee would have been, in any event, only temporary in case the applicant had applied for it.
95. When balancing, on the one hand, the first applicant’s right to negative freedom of religion and, on the other hand, the public interest in the efficient collection of taxes, including church tax (compare Wasmuth, cited above, § 60), the Court has to take into account the burden put on the first applicant in the offsetting procedure. In particular, it is aware of the fact that the necessity to apply for a settlement notice obliged the first applicant to take more far-reaching action than in the case of Wasmuth, where the applicant had only once to give information of limited scope (ibid.).
96. On the other hand, regard must be had to the fact that, unlike in Wasmuth, it was in the first place the decision of the first applicant and his spouse to make a joint tax declaration which led to the two separate tax claims being handled together in administrative terms. That decision required the State to engage in a more complicated tax assessment and put into motion the rather technical process of offsetting credits against debits. It can therefore be regarded as an administrative mechanism to set the final amount of tax the spouses had to pay after they decided to be taxed together. This administrative mechanism could be undone by setting in practise a further mechanism, namely that of the settlement notice.
97. Furthermore, there is nothing in the material submitted by the parties which indicates that applying for a settlement notice would have caused the first applicant any financial burden, taken up much of his time or entailed any further consequences. That holds true even if an easier solution seems feasible, for instance by allowing spouses to indicate whether or not they agreed to offsetting reimbursement claims against special church fees as early as in the tax declaration form.
98. Lastly, as regards the first applicant’s argument that the tax bill contained no information on available remedies for the offsetting (see paragraph 69 above) and thus did not inform him of his rights under that domestic provision, the Court reiterates its general case-law that the Convention does not guarantee, as such, the right to be informed of available domestic remedies (see Avotiņš v. Latvia [GC], no. 17502/07, § 123, ECHR 2016; and Société Guerin Automobiles v. the 15 States of the European Union (dec.), no. 51717/99, 4 July 2000).
99. Having regard to the competing interests at stake and in view of the relatively minor interference with the first applicant’s rights under Article 9 of the Convention, the Court considers that the possibility to apply for a settlement notice under Article 218 of the Fiscal Code can be regarded as a counterbalancing factor in the present case.
100. The foregoing considerations are sufficient to enable the Court to conclude that, taking into account the wide margin of appreciation left to Contracting States with regard to the definition of the relations between churches and the State (see paragraph 87 above), the domestic authorities have adduced relevant and sufficient reasons to justify the tax authorities’ offsetting the claims of the Protestant Church of the German Land of Baden-Württemberg on his wife against the first applicant’s reimbursement claims, without, in the first place, obtaining the first applicant’s consent to such a calculation.
101. There has accordingly been no violation of Article 9 of the Convention.
C. Alleged violation of Article 14 of the Convention taken in conjunction with Article 9 of the Convention
102. The first applicant further complained that the special church fee as levied by the Protestant Church of the Land of Baden-Württemberg, his wife’s church, discriminated against him when compared with married couples where one spouse did not belong to a church and the other one belonged to a religious community without the right to levy church taxes. He alleged that it was only in his case that a special church fee was levied in accordance with the church member’s living expenses. He relied on Article 9 of the Convention taken in conjunction with Article 14. The latter provision reads, so far as relevant here, as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... religion ...”
103. The Government contested that argument.
104. The Court reiterates that according to its settled case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts)).
105. In the present case the Court notes that the first applicant - other than his complaint under Article 9 of the Convention (see paragraph 69 above) - did not complain that the offsetting of his tax reimbursement claim against the claims of his wife’s church discriminated against him, but only that the fact that his income was taken into account by the church when calculating his wife’s church fee was discriminatory. The Court, having regard to the submissions made by the first applicant and to the fact that the church fee had been levied on his wife and not on him, considers that he has not shown that this specific complaint falls within the ambit of Article 9 of the Convention. Thus, Article 14 of the Convention is not applicable.
106. In the light of the foregoing, the Court finds that this complaint under Article 14 of the Convention taken in conjunction with Article 9 is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATIONS NOS. 16687/11 (SECOND APPLICANT) AND 28919/11 (FIFTH APPLICANT)
A. Alleged violation of Article 9 of the Convention, taken alone and in conjunction with Article 14 of the Convention
107. The second and fifth applicants complained that the special church fee levied by the Protestant Church of the Land of Bavaria infringed their right to freedom of religion, as provided in Article 9 of the Convention, taken alone and read in conjunction with Article 14.
108. The Government contested that argument.
1. The Government’s submissions
109. Relying on the Commission’s decisions in the case of Gottesmann v. Switzerland (no. 10616/83, 4 December 1984) and E. and G.R. v. Austria (no. 9781/82, 14 May 1984), the Government stated that the second and fifth applicants’ obligation to pay the special church fee did not constitute an interference with their right to freedom of religion, as both had been members of a church and the obligation to pay fees for that membership had not interfered with its members’ freedom of religion. The Government further stressed that the applicants, had they not wanted to pay the special church fee, could have chosen to leave their church (reference Konttinen v. Finland, no. 24949/94, Commission decision of 3 December 1996).
2. The applicants’ submissions
110. The second and the fifth applicants argued that the calculation of the special church fee on the basis of a church member’s living expenses rather than on the basis of his or her personal income had infringed their right to freedom of religion as the special church fee could exceed their personal income, which would render them dependent on their spouses in the exercise of their freedom of religion. The fifth applicant was furthermore of the opinion that the special church fee discriminated against women, as it was mainly women in Germany who had no income and on whom the special church fee was levied.
3. The third parties
111. The intervening churches (see paragraph 5 above) submitted that the aim of the special church fee was to include every church member without an income, according to his or her financial capacity in the funding of the churches’ activity. In the case that this church member was married, the financial capacity stemmed in case of joint tax assessment not only from the income of the church member, but from the income of the spouse as well.
112. According to the Giordano Bruno foundation the connecting point for the calculation of the special church fee, namely the joint taxable income, infringed the individual’s right to freedom of religion as the fee was not calculated with reference to the individual church member’s income.
4. The Court’s assessment
113. Having regard to its general principles (see paragraphs 77-79 above) the Court reiterates its case-law that a church tax does not, as such, interfere with the right to freedom of religion, as long as State legislation provides for the possibility to leave the church (compare E. and G.R. v. Austria, cited above; and Gottesmann, cited above).
114. The Court notes that the second and fifth applicants were members of the Protestant Church of the Land of Bavaria and had thus not been compelled to be involved in religious activities against their will, without being a member of such a community (contrast Bruno, cited above). Furthermore, the two applicants did not dispute the fact that they had a general obligation to pay a special church fee (contrast E. and G.R. v. Austria, cited above). They only complained about the way the church calculated that fee, namely by basing it on their living expenses, and in turn their spouses’ income as well as their own (see paragraph 110 above).
115. The Court observes that the second and fifth applicants’ obligation to pay a special church fee and the way it was calculated did not arise directly under the State’s legislation, which only authorised churches to levy church taxes, but derived from a decision taken independently by the Protestant Church of the Land of Bavaria to levy a special church fee on its members and the manner in which it was to be calculated. As such, it thus cannot be attributed to the respondent State. The fact that churches are subject to State control on this issue does not change the nature of the levying of contributions as an autonomous church activity (compare E. and G.R. v. Austria, cited above).
116. Having regard to the fact that the State’s role in this field is limited to the exercise of a power of control and that the second and fifth applicants neither called into question their obligation to pay a church fee nor their right to leave their church, the Court is of the opinion that the German authorities have included sufficient safeguards to ensure freedom of religion. It concludes therefore that there is no appearance of any interference with the applicants’ rights under Article 9 of the Convention.
117. As regards the fifth applicant’s further complaint under Article 14 of the Convention taken in conjunction with Article 9, the Court, having regard to the submissions made by the applicant, considers that she has not shown that she was treated differently than other individuals in a similar situation because of her sex.
118. The second and fifth applicants’ complaints are thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Further complaints
119. The second and fifth applicants complained further under Article 8 and Article 12 of the Convention, each taken alone and in conjunction with Article 14, that the levying of a special church fee on spouses in a marriage where only one of them belonged to a church entitled to levy taxes discriminated against them when compared with spouses who belonged to different churches entitled to levy taxes and unmarried couples.
120. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that the second and fifth applicants’ complaints do not disclose any appearance of a violation of Article 8 and Article 12 of the Convention, each taken alone and in conjunction with Article 14.
121. The Court accordingly finds that their complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION NO. 25359/11 (THE THIRD AND FOURTH APPLICANTS)
122. The third and fourth applicants complained that the domestic provisions concerning the levying of church taxes - unlike the cases of the second and fifth applicants, which concerned the levying of the special church fee (with regard to the differences compare paragraph 12 above) - as they had been applied to them had breached their right to freedom of religion, as provided in Article 9 of the Convention, taken alone and read in conjunction with Article 14.
123. The Government contested that argument.
1. The Government’s submissions
124. With regard to the third applicant, the Government contested his victim status as he had stated that he had been willing to pay church tax and had only complained that his wife’s income had been taken into account when the tax had been calculated, even though she was not a member of a church.
125. With regard to the fourth applicant, the Government argued that the fact that her income had been taken into consideration when the church had calculated her husband’s church tax had stemmed, firstly, from the fact that the third applicant’s Church had linked the rate of his church tax to his income tax liability and, secondly, from the couple’s decision to have a joint tax assessment, and thus could not be attributed to the State. Furthermore, the fourth applicant had failed to show that she had contributed financially to her husband’s church as a result of that calculation method. On the contrary, as a direct result of the spouses’ decision to opt for a joint tax assessment, the third applicant had benefited from the progressive effect of the German tax system, which had led to his church tax being lower than it would have been if he had made a separate income tax declaration. For example, the third applicant’s church tax in 2005 had been assessed at EUR 629.55, while under a separate income tax declaration it would have been EUR 825.75.
2. The third and fourth applicants’ submissions
126. The third and fourth applicants argued that their decision to make a joint income tax declaration had been based solely on financial considerations, namely the positive consequences of progressive taxation. However, it had also involuntarily directly affected the way the third applicant’s church tax had been calculated, as his church, as a direct consequence of that decision, had taken the fourth applicant’s income into account. As a result, the fourth applicant had had to contribute to financing her husband’s church, which had constituted an interference with her negative rights under Article 9 of the Convention.
127. Furthermore, the third applicant had declared that he was willing to pay his church tax, but had objected that it had been too high as it had been calculated in relation to his share of their joint income tax rather than in relation to his share of their total income.
128. Lastly, the applicants as spouses in a marriage where only one spouse belonged to a church entitled to levy taxes (see paragraph 12 above) stated that they had been discriminated against when compared with spouses who both belonged to a church levying church taxes in case of a joint tax declaration, as in both cases both incomes were taken into account to calculate the amount of the church tax even though in the case of the third and fourth applicants only one spouse belonged to a church.
3. The Court’s assessment
129. The Court notes, at the outset, that the parties agreed that the applicants’ decision to file a joint income tax declaration directly determined how the church calculated the third applicant’s church tax as it was levied in accordance with his tax assessment basis and thus took both incomes into account. The Court further notes the Government’s submission (see paragraph 125 above), which was uncontested by the third and fourth applicants, that as a direct result of this decision, the third applicant benefited from Germany’s progressive tax system and that his church charged him a lower church tax than if they had made separate income tax declarations.
130. Against this background the Court considers that both applicants failed to substantiate that their decision to have a joint tax assessment had increased the third applicant’s church tax, nor was that evident in the material submitted by the parties. On the contrary, according to the Government’s submissions, the direct result of the spouses’ decision was that the third applicant’s church tax was lower than under separate income tax declarations. In contrast to the Government’s similar argument in the case of the first applicant, where this decision enabled his wife’s church to collect its special church fee at the expense of the first applicant’s tax reimbursement claim (see paragraph 93 above), in the present case the church tax was levied on and collected from the person liable to pay it, namely the third applicant, who is a member of a church.
131. Moreover, having regard to the wide margin of appreciation left to Contracting States in this area (see Alujer Fernández, cited above; and Cha’are Shalom Ve Tsedek, cited above, § 84), the Court is of the opinion that the domestic courts’ decisions on the calculation method used by the Protestant Church of the Land of Thuringia, as it did not cause any negative financial consequences for the applicants, cannot be said to have involved the fourth applicant in religious activities against her will, even though the domestic courts accepted that the church’s calculation method was a consequence of the decision to file a joint income tax declaration and thus took into consideration the fourth applicant’s income when assessing the third applicant’s church tax.
132. As regards the third applicant’s further objection about the church’s method of calculation of his church tax, the Court reiterates that in view of its general principles as set out above (see paragraph 113 above), the church tax does not, as such, interfere with the right to freedom of religion, as long as State legislation provides for the possibility to leave the church. The calculation of the third applicant’s church tax did not arise directly from State legislation, but derived from a decision taken independently by the Protestant Church of the Land of Thuringia. As such, that decision cannot be attributed to the respondent State (see paragraph 115 above).
133. As regards the third and fourth applicants’ further complaint that they were being discriminated against when compared with spouses who both belong to a church levying church tax, the Court considers that, while in the latter case both spouses belonged to a church levying church tax, in the case of the third and fourth applicants only one spouse had to pay a church tax. Thus the third and fourth applicants cannot be said to be in the same situation as couples who are both members of a church levying taxes.
134. Therefore, the Court concludes that their complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the four applications;
2. Declares the complaint of the first applicant (application no. 10138/11) concerning Article 9 of the Convention admissible and the remainder of his complaints and the applications of the second, third, fourth and fifth applicants inadmissible;
3. Holds that there has been no violation of Article 9 of the Convention.
Done in English, and notified in writing on 6 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Erik
Møse
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Grozev is annexed to this judgment.
E.M.
M.B.
CONCURRING OPINION OF JUDGE GROZEV
While I agree with the conclusion that there has been no violation of the applicants’ rights under the Convention, I have some difficulties following the approach taken with respect to the first applicant’s complaint of a violation of Article 14 in conjunction with Article 9. The Court found that this complaint of the first applicant was incompatible ratione materiae and accordingly rejected it, as it did not fall within the ambit of Article 9 (see paragraphs 104-106 of the judgment).
The complaint made by the applicant was that he was treated differently on account of his tax obligations, and that difference in treatment was based on his wife’s belonging to a particular religion. Looking at the first element, the applicant was indeed treated differently compared with individuals who were in the same situation, namely individuals with a higher income than their spouse, but whose spouse did not belong to a church with tax-levying powers. Those other individuals had the possibility of opting for a joint tax assessment, with the benefits that come from such joint assessment, without being forced as a result to have their total income taken as a basis for the calculation of their wife’s church contributions. The applicant did not have that choice and thus was treated less favourably. He could choose only one of those two alternatives, either a joint tax assessment or not having his income taken into account for the purpose of the calculation of his wife’s church contributions. It is precisely this restriction of the choice available to the first applicant that amounted to a different treatment and this was the substance of his complaint before the Court (see paragraph 102). This difference in treatment was based on the religion of the applicant’s wife and as a result, in my view, falls within the ambit of Article 9, with the requisite need for justification of such different treatment.
At the same time, while this complaint of discriminatory treatment has been made before our Court, it was not made as such by the applicant before any domestic authority or court. The applicant did not raise it in his complaint before the domestic tax authorities (see paragraph 23) and never brought it before a domestic court. While some of the justifications for this differential treatment could be inferred from earlier domestic judgments, particularly those of the Federal Constitutional Court in its relevant judgments, the fact remains that this complaint was never addressed at the domestic level. Thus, although it falls within the ambit of Articles 14 and 9 of the Convention, an assessment of its justification would be particularly difficult in the light of the lack of proper consideration at the domestic level, this also being contrary to the principle of subsidiarity.