Decision no. 2012-297 QPC of 21 February 2013

On 19 December 2012, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 360724 and no. 360725 of 19 December 2012) on behalf of the Association for the Promotion and Expansion of Secular Thought, raising the conformity of Article VII of the basic articles of protestant denominations contained in the Law of 18 germinal of year X on the organisation of religion with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Law of 18 germinal of year X on the organisation of religion;

Having regard to the Law of 9 December 1905 on the separation between Church and State;

Having regard to the law of 17 October 1919 relating to the transitory regime of Alsace and Lorraine;

Having regard to the law of 1 June 1924 putting into force the French civil legislation in the Departments of Bas-Rhin, Haut-Rhin and Moselle;

Having regard to the ordinance of 15 September 1944 relating to the re-establishment of republican legality in the Departments of Bas-Rhin, Haut-Rhin and Moselle;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations filed on behalf of the applicant association by its President, registered on 11 January 2013;

Having regard to the observations of the Prime Minister, registered on 11 and 28 January 2013;

Having regard to the observations in intervention on behalf of the Association "République sans Concordat" ["Republic without Concordat"] by Jérémy Afane-Jacquart Esq., Attorney at the Paris bar, registered on 10 and 28 January 2013;

Having regard to the interventions filed on behalf of the Institut du droit local alsacien-mosellan [Institute of local law for the Alsace and Moselle Territories] by its President, registered on 8 and 25 January 2013;

Having regard to the interventions filed by SCP Roth-Pignon, Leparoux et associés, attorneys at the Strasbourg bar, on behalf of Mr Jean-François COLLANGE, President of the Union of Protestant Churches for Alsace and Lorraine, President of the Directorate of the Protestant Church of the Augsbourg Confession for Alsace and Lorraine (EPCAAL), Mr Christian KRIEGER, Vice-President of the Union of Protestant Churches of Alsace and Lorraine and President of the Synod Council of the Reformed Protestant Church of Alsace and Lorraine (EPRAL), Mr Enno STROBEL, President of the EPRAL Consistory of Bischwiller, Mr Frédéric WENNAGEL, President of the EPRAL Consistory of Mulhouse, Armand SCHLUCHTER, President of the EPRAL Consistory of Metz, Mr Olivier KAUFFMANN, President of the EPRAL Consistory of Strasbourg, Mr Philippe GUNTHER, President of the EPCAAL Consistory of Cronenbourg, Mr Claude MOURLAM, President of the EPCAAL Consistory of Elsau, Mr Jehan-Claude HUTCHEN, President of the EPCAAL Consistory of Neurdof, Ms Yrsa THORDARDOTTIR, President of the EPCAAL Consistory of Robertsau, Mr Christophe KOCHER, President of the EPCAAL Consistory of Temple-Neuf, Ms Claire-Lise OLTZ-MEYER, President of the EPCAAL Consistory of Bischheim, Mr Manfred REEB, President of the EPCAAL Consistory of Bischwiller, Ms Marlène HALLER, President of the EPCAAL Consistory of Schiltigheim, Mr Jean-Jacques LEDERMANN, President of the EPCAAL Consistory of Vendenheim, Ms Sybille STOHRER, President of the EPCAAL Consistory of Dorlisheim, Mr Philippe ICHTER, President of the EPCAAL Consistory of Barr, Mr Guy MOSER, President of the EPCAAL Consistory of Gerstheim, Mr Jean-Marc HEINTZ, President of the EPCAAL Consistory of Graffenstaden, Mr Marc LEHNING, President of the EPCAAL Consistory of Ittenheim, Mr Jean WENDLING, President of the EPCAAL Consistory of Wasselonne, Mr Alain AMBIEHL, President of the EPCAAL Consistory of Bouxwiller, Mr Michel HEINRICH, President of the EPCAAL Consistory of Dettwiller, Mr Jean-Luc HAUSS, President of the EPCAAL Consistory of Ingwiller, Ms Eliane SCHMITT, President of the EPCAAL Consistory of Pfaffenhoffen, Mr Louis HELMLINGER, President of the EPCAAL Consistory of Schwindratzheim, Mr Gaston MUHLMANN, President of the EPCAAL Consistory of La Petite-Pierre, Mr Thierry GEYER, President of the EPCAAL Consistory of Diemeringen, Ms Danièle HAUSSBERTHELIN, President of the EPCAAL Consistory of Drulingen, Mr Christophe STROHM, President of the EPCAAL Consistory of Fénétrange, Mr Conrad MOHR, President of the EPCAAL Consistory of Sarreguemines, Mr Jean-Jacques BALTZER, President of the EPCAAL Consistory of Sarre-Union, Mr Georges MERCKLING, President of the EPCAAL Consistory of Soultz-Wissembourg, Mr Bernard NIESS, President of the EPCAAL Consistory of Hatten, Mr Denis KLEIN, President of the EPCAAL Consistory of Oberbronn, Mr Georges REMPP, President of the EPCAAL Consistory of Woerth, Mr Bernard STOEHR, President of the EPCAAL Consistory of Colmar, Mr Philippe CLAIR, President of the EPCAAL Consistory of Andolsheim, Ms Catherine FRITSCH, President of the EPCAAL Consistory of Mulhouse, Ms Alexandra BREUKINK, President of the EPCAAL Consistory of Munster, Mr Fabien TROGOLO, President of the EPCAAL Consistory of Riquewihr, and Ms Marianne PRIGENT, President of the EPCAAL Consistory of Sélestat, registered on 8 and 25 January 2013;

Having regard to the observations in intervention filed by the firm Magellan, attorneys at the Strasbourg bar on behalf of Mr Jean-Pierre GRALLET, Archbishop of Strasbourg, Mr Pierre RAFFIN, Bishop of Metz, the Israelite Consistory of Bas-Rhin, the Israelite Consistory of Haut-Rhin, the Israelite Consistory of Moselle, Mr René GUTMAN, Grand-Rabbi of Bas-Rhin, Mr Jacob FHIMA, Grand-Rabbi of Haut-Rhin, and Mr Bruno FISZON, Grand-Rabbi of Moselle, registered on 9 January 2013;

Having regard to the documents produced and appended to the case files;

Having heard Jean-François Amédro Esq. and Benjamin Dewhurst Esq., attorneys at the Paris bar, on behalf of the applicant association, Pierre-Étienne Rosenstiehl Esq., Antoine Marcantoni Esq. and Afane-Jacquart Esq. on behalf of the interveners, and Thierry-Xavier Girardot Esq., appointed by the Prime Minister, at the public hearing on 12 February 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article VII of the basic articles of protestant denominations contained in the Law of 18 germinal of year X on the organisation of religion: "Provision shall be made for the pastors of consistorial churches; it is acknowledged that the assets which these churches possess and the proceeds of donations established through custom or under regulations shall be offset against this payment";

2. Considering that, according to the applicant association, in stipulating that provision shall be made for the pastors of consistorial churches, these provisions violate the constitutional principle of secularism; that it points out that the rule prohibiting the subsidisation of religion and the principle that religions should not be recognised, which results from the principle of secularism, prevent the public authorities from financing the practice of religion and from granting public status or support to specific religions;

3. Considering that the Law of 18 germinal of year X on the organisation of religion promulgated and implemented as a law of the Republic, on the one hand, "The convention concluded in Paris on 26 messidor of year IX between the Pope and the French Government, ratifications of which were exchanged in Paris on 23 fructidor of year IX", and on the other hand the basic articles of the said convention and the basic articles of protestant denominations; that pursuant to Article 3 of the Law of 17 October 1919 relating to the transitory regime of Alsace and Lorraine, which was adopted following the re-establishment of French sovereignty over these territories:
   "The territories of Alsace and Lorraine shall continue to be governed by the legislative and regulatory provisions currently in force until the introduction of French law"; that subparagraph 13 of Article 7 of the Law of 1 June 1924 implementing French civil law in the Departments of Bas-Rhin, Haut-Rhin and Moselle expressly maintained in force in these departments on a provisional basis all legislation on religions and religious congregations; that finally, according to Article 3 of the Ordinance of 15 September 1944 on the re-establishment of republican legality in the Departments of Bas-Rhin, Haut-Rhin and Moselle: "The legislation in force ... on 16 June 1940 shall be the sole applicable legislation and shall remain in force on a provisional basis”;

4. Considering that it follows from the above that the provisions of the aforementioned Law of 9 December 1905 were not applied to the Departments of Bas-Rhin, Haut-Rhin and Moselle, including in particular those of the first phrase of Article 2, which provides that: "The Republic shall not recognise, pay any salary or subsidy to any religious body", along with those contained in Article 44 according to which: "All provisions on the public organisation of religions previously recognised by the State, and all provisions which are incompatible with this Law, including in particular the Law of 18 germinal of the year X are hereby repealed and shall remain repealed"; that accordingly, in these Departments, the contested provisions on the treatment of pastors in consistorial churches has remained in force;

5. Considering that Article 10 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law"; that pursuant to the first three phrases of the first subparagraph of Article 1 of the Constitution: "France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs"; that the principle of secularism is one of the rights and freedoms guaranteed by the Constitution; that it follows that the State must be neutral; that it also follows that the Republic does not recognise any religion; that the principle of secularism requires in particular that all beliefs be respected, the equality of all citizens before the law without distinction based on religion also be respected, and that the Republic guarantee the free exercise of religion; that it implies that it shall not subsidise any religion;

6. Considering however that according to the preparatory work for the draft Constitution of 27 October 1946 relating to Article 1, and to those for the draft Constitution of 4 October 1958 which reasserted the same provision, in proclaiming that France is a "secular ... Republic", the Constitution did not however call into question any specific legislative or regulatory provisions on the organisation of certain religions, including in particular the remuneration of religions ministers, which were applicable in the various parts of the territory of the Republic at the time the Constitution entered into force;

7. Considering that according to the above, the challenge alleging that Article VII of the basic articles of protestant denominations contained in the Law of 18 germinal of year X on the organisation of religion violates the principle of secularism must be rejected;

8. Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution; that accordingly they must be ruled constitutional,

HELD :

Article 1.- Article VII of the basic articles of protestant denominations contained in the Law of 18 germinal of year X on the organisation of religion is constitutional.

Article 2.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 21 February 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.