¹ The Forum website contains a list of participant religious organisations in the category of ‘other, civil society, NGOs and schools of thought’: http://www.europa.eu.int/futurum/forum_convention/organresults_502_en.cfm.Google Scholar

² See e.g. Smith, Joan, ‘The EU is utterly Godless—let's keep it that way’, Independent, 23 January 2003.Google Scholar

³ In force I November 1993. See now the post-Amsterdam consolidated version of 10 November 1997/C 340/145–172. All article references in this paper are to the new numbering.Google Scholar

⁴ See his ‘Speech to the Churches’ of 14 April 1992. A Soul for Europe is composed of six members: Commission of the Bishops' Conferences of the European Community, Church and Society Commission of the Conference of European Churches, Orthodox Liaison Office, Conference of European Rabbis, European Humanist Federation, Muslim Council for Co-operation in Europe.Google Scholar

⁵ The section is headed by Dr Michael Weninger. See http://europa.eu.int/comm/dgs/policy_advisers/activities/dialogue_religions_humanisms/index_en.htmGoogle Scholar

⁶ See e.g. Altes, Edy Korthals, ‘What is it? Why do we need it? Where do we find it?’ in Jansen, Thomas (ed.) Reflections on European Identity, European Commission Forward Studies Unit Working Paper 1999.Google Scholar

⁷ See the discussion in the paper submitted to the Forum by Carlos del Ama and Emmanuel Paparella.Google Scholar

⁸ See Fossum, John Erik, ‘The European Union: In Search of an Identity’, European Journal of Political Theory, vol 2(3), 319.CrossRefGoogle Scholar

⁹ The abandonment—or at any rate refinement—of the ‘secularisation thesis’ to be replaced by a thesis of European ‘exceptionalism’ by sociologists of religion is particularly associated with Peter Berger and David Martin. For an account of European religion which takes as its guiding idea the mutation of memory, see Davie, Grace, Religion in Modern Europe (Oxford: OUP 2001).Google Scholar

¹⁰ See e.g. Boulton, Leyla, ‘Turkey banks on reforms to boost chances’, Financial Times 9 October 2002.Google Scholar

¹¹ E.g. Germany (1949): ‘Conscious of their responsibility before God…’; Canada (1982): ‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…’; South Africa (1996); ‘May God protect our people… God bless South Africa’.Google Scholar

¹² Exceptionally, the Irish Constitution (1937) commences, ‘In the name of the most Holy Trinity, from whom is all authority and to whom, as our final end, all actions both of men and states must be referred. We, the people of Eire, humbly acknowledging all our obligations to our Divine Lord Jesus Christ …’ The relationship of the Sovereign to the Church of England in the United Kingdom could be argued to fulfil a similar role.Google Scholar

¹³ John Erik Fossum (op cit (note 8 above), fn 9) has commented on the fact that the word ‘religious’ in the English version of the Preamble to the Charter of Fundamental Rights appears in the French not as ‘religieuse’ but as the vaguer ‘spirituelle’, which he sees as evidence of a further unwillingness to recognise ‘deep diversity’. By contrast, once ‘religious’ got into the draft Constitution it appears also as ‘religieux’ in the French.Google Scholar

¹⁴ TEU, art 11(1), and EC, art 177(2). The use of human rights clauses in bilateral trade and co-operation agreements is also common. See generally the Policy on human rights and democratisation of the External Relations Directorate General.Google Scholar

¹⁵ For an overview, see Robbers, G (ed.), Law and State in the European Union, 1st edn (Baden-Baden: Nomos, 1996) (2nd edn forthcoming, 2004).Google Scholar See also Ferrari, Silvio and Bradney, Anthony (eds.), Islam and European Legal Systems (Aldershot: Ashgate 2000).Google Scholar

¹⁶ Opinion 2/94 on Accession by the Community to the European Court of Human Rights [1996] ECR 1–1759. The ECHR is nonetheless recognised as having a special status within the European Union: TEU, art 6(2).Google Scholar

¹⁷ Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; Case 4/73 Nold v Commission [1974] ECR 491; Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727; and subsequent case law.Google Scholar

¹⁸ Case 130/75 Prais v Council [1976] ECR 1589.Google Scholar

^{19 2000}/C 364/01.Google Scholar

²⁰ See also Charter of Fundamental Rights, arts 10(1), 12(1) and 21(1).Google Scholar

^{21 1997}/C 340/133.Google Scholar

²² Draft Treaty establishing a Constitution for Europe, 18 July 2003, CONV 850/03, art 51(3). This article was not in the first draft of the Constitution. The text of the Amsterdam Declaration was only included after pressure from the Roman Catholic Church and others.Google Scholar

²³ Compare the answer given by the Council to the question asked by Watson, Graham MEP on 3 August 2001 regarding religious liberty in France (2001/C 81/154) with the answer given to James Nicholson MEP on 16 October 2000 concerning religious minorities in India and Pakistan (2001/C 163/57). These answers are entirely typical of both the Council and the Commission.Google Scholar

^{24 28} May 1979 1979/L 291/186. The Declaration states: ‘recognizing that the special status granted to Mount Athos, as guaranteed by article 105 of the Hellenic Constitution, is justified exclusively on grounds of a sprititual and religious nature, the Community will ensure that this status is taken into account in the application and subsequent preparation of provisions of Community law, in particular in relation to customs franchise privileges, tax exemptions and the right of establishment’.Google Scholar

^{25 2000}/L 239/87.Google Scholar

^{26 1994}/L 216/12 at 13.Google Scholar

²⁷ C-84/94 United Kingdom v Council [1996] ECR 1–5755.Google Scholar

²⁸ See generally Maher, Imelda, ‘A Traders' Charter? Free Movement of Goods and the Sunday Dilemma’ in Wilson, G and Rogowski, R (eds.) Challenges to European Legal Scholarship (London: Blackstone, 1996).Google Scholar

²⁹ Case 145/88 Torfaen Borough Council v B & Q plc [1989] ECR 3851.Google Scholar

³⁰ C-267 and C-268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR 1–6097.Google Scholar

³¹ C-418/93 Semeraro Casa Uno Srl v Sindaco del Comune di Erbusco [1996] ECR 1–2975Google Scholar

³² Ibid., at para, 24.

³³ C-159/90 SPUC v Grogan [1991] ECR 4685. Protocol No. 17 to the Treaty on European Union 1992 also sought to preserve the Irish position on abortion. OJ C 191, 94.Google Scholar

³⁴ Case 41/74 Van Duyn v Home Office [1974] ECR 1337. But note the restrictions imposed on public policy regimes of prior authorisation for direct foreign investments in C-54/99 Association Eglise scientology de Paris v Prime Minister [2000] ECR 1–1335.Google Scholar

³⁵ Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159.Google Scholar

³⁶ Opinion of Darmon AG at para 16.Google Scholar

³⁷ Judgment of the Court at para. 14.Google Scholar

³⁸ See Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159 at para 9 of the judgment. On the facts, of course, this happened to work in the favour of the religious association.Google Scholar

^{39 1992}/L 395/1Google Scholar

^{40 1993}/L 74/74.Google Scholar

^{41 1999}/L 278/1 at 508.Google Scholar

⁴² See Commission Decision 92/456/EEC concerning the updating of Annex I to Council Directive 71/305/EEC, 1992/L 257/33.Google Scholar

⁴³ Written Question E-1583/01 by Anne Jensen (ELDR) to the Commission, 2001/C 340/240.Google Scholar

⁴⁴ EC Treaty, art 17(2). New rights specifically attached to citizenship are limited to freedom of movement, voting rights at municipal and European elections, diplomatic protection in third countries, and a right of petition.Google Scholar

⁴⁵ C-85/96 Maria Martinez Sala v Freistaat Bayern [1998] ECR 1–2691.Google Scholar

⁴⁶ O'Leary, Siofra, ‘Putting Flesh on the Bones of EU Citizenship’, (1999) 24 EL Rev 68.Google Scholar

⁴⁷ The reach of non-discrimination is expressed as ‘within the limits of the powers conferred by [this Treaty] upon the Community’ rather than ‘within the scope of application of this Treaty’.Google Scholar

⁴⁸ The background to Article 13 EC and the difficulties surrounding its future impact are well explored in Bell, Mark, Anti-Discrimination Law and the European Union (Oxford: OUP 2002). Mark Bell identifies a tension between a limited ‘market integration’ model of social policy and a more ambitious ‘social citizenship’ model. On either account there will be overlaps of the religious and the economic; obviously, the latter model contains more potential for conflict.CrossRefGoogle Scholar

⁴⁹ See Alexy, Robert (tr. Rivers, Julian), A Theory of Constitutional Rights (Oxford: OUP 2002), pp 206–210.Google Scholar

⁵⁰ See e.g. the critiques in Jason Coppel and Aidan O'Neill, ‘The European Court of Justice: taking rights seriously?’ (1992) 12 Legal Studies 227: de Búrca, Gráinne, ‘The Language of Rights and European Integration’ in Shaw, and More, (eds.), New Dynamics of European Integration (Oxford: Clarendon Press, 1995).Google Scholar

⁵¹ Directive 89/552/EEC (amended by Directive 97/36/EC), art 11(5), 1997/L 202/60.Google Scholar

⁵² Directive 89/104/EEC (First Trade Marks Directive), art 3(2)(b), 1989/L 40/1.Google Scholar

⁵³ See e.g. Directive 2000/31/EC on e-commerce, 2000/L 178/1, art 3(4)(a)(i)–(iii).Google Scholar

^{54 2002}/L 42/1, Annexe 1, paragraph 1.3.2.Google Scholar

^{55 2001}/L 167/10, article 5(3)(g).Google Scholar

⁵⁶ Directive 77/388/EEC 1977/L 145/1.Google Scholar

⁵⁷ See Written Question E-1976/98 by Mather, Graham to the Commission, 1999/C 31/109. The latest Commission review of reduced VAT rates (22 October 2001) notes but does not comment on the request (at para. 47).Google Scholar

⁵⁸ In the absence of any Europe-wide definition of ‘employment’, this is a result of domestic law conceptions. See also Written Question E-1482/01 by Glyn Ford to the Commission, 2001/C 364 E/136. ‘Worker’ is defined in European law more widely than ‘employee’ in domestic law, and as the Steymann case (note 35 above) indicates, clergy may be ‘workers’ for some purposes.Google Scholar

⁵⁹ The European Office for Emergency Humanitarian Aid (ECHO) has over 200 non-governmental partners, including many church-based ones. See http://europa.eu.int/comm/echo/partners/index_fr.htm.Google Scholar

⁶⁰ Criteria for acceptance as a partner are set out in Regulation 1257/1996, 1996/L 163/1. Article 7 provides: 1. Non-governmental organizations eligible for Community financing for the implementation of operations under this Regulation must meet the following criteria: (a) be non-profit-making autonomous organizations in a Member State of the Community under the laws in force in that Member State; (b) have their main headquarters in a Member State of the Community or in the third countries in receipt of Community aid. This headquarters must be the effective decision-making centre for all operations financed under this Regulation. Exceptionally, the headquarters may be in a third donor country. 2. When determining a non-governmental organization's suitability for Community funding, account shall be taken of the following factors: (a) its administrative and financial management capacities; (b) its technical and logistical capacity in relation to the planned operation; (c) its experience in the field of humanitarian aid; (d) the results of previous operations carried out by the organization concerned, and in particular those financed by the Community; (e) its readiness to take part, if need be, in the coordination system set up for a humanitarian operation; (f) its ability and readiness to work with humanitarian agencies and the basic communities in the third countries concerned; (g) its impartiality in the implementation of humanitarian aid; (h) where appropriate, its previous experience in the third country involved in the humanitarian operation concerned.Google Scholar

⁶¹ See Regulation 1347/2000, 2000/L 160/19, art 40.Google Scholar

⁶² Directive 95/46/EC, art 8(1)(2d).Google Scholar

⁶³ Directive 89/967/EEC (amended by Directive 98/33/EC), art 2(1)(b).Google Scholar

^{64 1995}/L 281/31.Google Scholar

⁶⁵ Similar wording is used for implementation within the United Kingdom under the Data Protection Act 1998, s 4(3), and Sch 3.Google Scholar

^{66 1990}/L 309/1.Google Scholar

⁶⁷ The Welfare of Animals (Slaughter or Killing) Regulations 1995, SI 1995/731 (amended by the Welfare of Animals (Slaughter or Killing) (Amendment) Regulations 1999, SI 1999/400, the Welfare of Animals (Slaughter or Killing) (Amendment) (England) Regulations 2000, SI 2000/3352, and the Welfare of Animals (Slaughter or Killing) (Amendment) (England) Regulations 2001, SI 2001/3830).Google Scholar

⁶⁸ Directive 93/104/EC concerning certain aspects of the organization of working time, 1993/L 307/18.Google Scholar

⁶⁹ For a critical discussion, see Calvert, Simon and Hart, Colin, ‘EU Employment Law and Religious Organisations’ (2002) 148 Law & Justice 4.Google Scholar

^{70 2000} OJC 177 pp. 42–46.Google Scholar

⁷¹ Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.Google Scholar

⁷² Employment Equality (Religion or Belief) Regulations 2003. SI 2003/1660, in force 2 December 2003.Google Scholar

⁷³ See the Explanatory Memorandum, paragraph 10. Unusually—but in my view correctly—the Memorandum assumes that ministers of religion generally are office-holders. Only if the appointment of a minister is accompanied by a lack of intention to create legal relations will the job be outside the scope of the Regulations.Google Scholar

⁷⁴ See paragraph 24.Google Scholar

⁷⁵ Equal Treatment (Sexual Orientation) Regulations 2003. SI 2003/1661, in force 1 December 2003.Google Scholar

⁷⁶ This depends on whom you compare an active homosexual applicant with. The Equal Treatment (Sexual Orientation) Regulations 2003, reg 3(2), simply states that'a comparison…with…another person…must be such that the relevant circumstances in the one case are the same, or not materially different, in the other’. Of course, that begs all the questions.Google Scholar

^{77 2002} OJ L 80, pp 29–34.Google Scholar

⁷⁸ COM/97/0241. See also ‘Building a stronger partnership’, COM(2000) 11.Google Scholar

⁷⁹ In 1997, a new budget line (B3–4101) had already been created to promote cooperation with NGOs and other voluntary sector organisations and to strengthen their capacity to engage in civil dialogue at European level. See also Written Question E-1193/01 by Robert Goebbels to the Commission. 2001/C 364 E/56.Google Scholar

^{80 1999}/C 329/10.Google Scholar

⁸¹ COM(2001) 428, 2001/C 287/01.Google Scholar

⁸² http://www.europa.eu.int/comm/civil_society/coneccs/index.htmGoogle Scholar

⁸³ COM(2002) 277 final (5 June 2002).Google Scholar

⁸⁴ These include the Catholic European Study and Information Centre; Centre European Juif D'information; Church and Society Commission of the Commission of European Churches; Churches' Commission for Migrants in Europe; Comite Europeen Pour L'enseignement Catholique; European Humanist Federation; Europaeischer Kartellverband Christlicher Studentenverbaende; Federation of Catholic Family Associations in Europe; Federation of European Catholic Universities; International Association of Christian Counselling and Charitable Prison and Rehabilitation Ministries; International Catholic Migration Commission; International Federation of Catholic Parochial Youth Movements; Jeunesse Etudiante Catholique Internationale - Coordination Internationale - Mouvement Internationale D'etudiantes Catholiques.Google Scholar

⁸⁵ Many of the CEC responses have been drafted in consultation with COMECE (Commission of (RC) Bishops' Conferences in the EU), APRODEV (Association of World Council of Churches-related Development Agencies in Europe), CCME (Churches' Commission for Migrants in Europe) and Eurodiaconia.Google Scholar

⁸⁶ Article 5 EC. On the extent of ‘exclusive competence’, compare the views of A G Toth and J Steiner as set out in Craig and De Burca, European Union Law (3rd edn), pp 133–134.Google Scholar

⁸⁷ On this application of subsidiarity, see the Protocol on the Application of the Principles of Subsidiarity and Proportionality attached to the Treaty of Amsterdam, especially paragraph 7.Google Scholar

⁸⁸ See my essays, ‘From Toleration to Pluralism: Religious Liberty and Religious Establishment under the UK Human Rights Act 1998’ in Ahdar, Rex (ed) Law and Religion (Aldershot: Ashgate, 2000), pp 133–161:Google Scholar and ‘Religious Liberty as a Collective Right’ in Lewis, Andrew and O'Dair, Richard (eds) Law and Religion (Oxford University Press, 2001), pp 227–246.Google Scholar

⁸⁹ See Case 145/88 Torfaen Borough Council v B & Q plc [1989] ECR 3851.Google Scholar

⁹⁰ This is amply evidenced by the sequence of references which followed Torfaen, seeking further clarification. See Craig, and Burca, De, European Union Law (3rd edn), p 645.Google Scholar