Definition and Legal Status of Free Churches
Free Churches are Christian religious communities characterized by the voluntary confession of their members and an organizational independence from major churches (in particular from the Roman Catholic Church and the Protestant regional churches). Unlike mainstream churches, Free Churches are based on principles of voluntary affiliation and self-governance. From a legal standpoint, they occupy a distinct position within the law of religion in Germany, Austria, and Switzerland, and are subject to specific statutory regulations.
Legal Status of Free Churches in Germany
Legal Framework for Religion
In Germany, Free Churches are treated as religious communities. The Basic Law for the Federal Republic of Germany guarantees in Article 4 the freedom of faith, conscience, and the freedom of religious and ideological belief. According to Article 140 of the Basic Law, which incorporates parts of the Weimar Constitution, religious societies are, in principle, entitled to freedom of association and have the right to regulate and administer their affairs independently, within the limits of the laws applicable to all (§ 137 para. 3 WRV).
Corporate Status and Recognition
Like other religious and ideological communities, Free Churches can apply for the status of a corporation under public law (§ 137 para. 5 WRV). This status goes hand in hand with certain privileges, such as the collection of church taxes by state authorities, the ability to be an employer in public service, and the right to manage their own cemeteries. The requirements for granting this status include, in particular, the guarantee of permanence and legal loyalty of the community. Many Free Churches are regularly organized as registered associations (e.V.) or as corporations under private law and are therefore subject to association law under the German Civil Code (BGB).
Relationship with State and Society
The constitutional principle of the separation of church and state (see Art. 140 GG in conjunction with Art. 137 para. 1 WRV) also applies to Free Churches. They are independent in their internal affairs but share many rights and obligations with major churches on the part of the state, provided they are recognized as religious communities.
Free Churches can enter into agreements with the state (e.g., state church treaties, “concordats”), although this is rare in practice due to their often limited numbers and organizational structure.
Tax and Non-Profit Law
Non-Profit Status
For tax purposes, Free Churches are generally treated as charitable corporations in accordance with § 52 of the Fiscal Code (AO) provided that their statutory purposes are exclusively and directly aimed at promoting religion. As charitable organizations, they are exempt from corporate income tax, and donations to them are tax-deductible, provided the relevant legal requirements are met and supporting documentation is available.
Church Tax
Free Churches with corporate status may levy church tax, although in practice only a few actually do so. More commonly, financing is provided by voluntary donations from members and community events.
Employment Law Aspects
Free Churches address their members and employees within the framework of the so-called “church labor law.” The so-called “third way” allows them to set working conditions and rules partly independently from state labor law. Loyalty requirements are also often a subject of employment agreements, though fundamental rights (such as the General Equal Treatment Act, AGG) still have to be observed.
Free Churches in Austria
Legal Foundations
In Austria, religious law governs the legal status of Free Churches. The Federal Act on the Legal Personality of Religious Confessional Communities (BekGG) as well as the Act on Religion form the central legal basis. Free Churches can be recognized as religious confessional communities (since 2013, for example, the ‘Free Church in Austria’ has been recognized as a corporation under public law).
Rights and Duties
As recognized religious communities, Free Churches enjoy comprehensive privileges, including in the areas of religious education, pastoral care, tax exemption, as well as concerning the establishment and management of sacred facilities and cemeteries.
Free Churches in Switzerland
Cantonal Particularities
In Switzerland, religious law falls within the remit of the individual cantons. Most Free Churches are organized as associations under the Civil Code. Only a few Free Churches enjoy the status of a public-law corporation, such as the Reformed or Roman Catholic cantonal churches.
Tax Law
Free Churches that operate as associations or foundations with charitable aims can be exempt from taxes, provided the charitable requirements are fulfilled and applications as well as evidence are submitted to the relevant cantonal tax authorities.
Data Protection and Confidentiality Duties
Member and donation data are subject to data protection requirements, which are based on the General Data Protection Regulation (GDPR) or national data protection law (e.g., Federal Data Protection Act, BDSG). Special statutory duties of confidentiality also arise for pastoral activities within Free Churches.
Liability and Asset Law
As legal associations or corporations, Free Churches regularly manage their own assets and are liable for obligations with these assets. In the case of corporations under public law, specific liability arrangements may apply; for registered associations, liability is limited to the assets of the association.
Summary
Free Churches refer to independent Christian religious communities whose legal status is shaped by principles of religious freedom, association autonomy, and—depending on the country—special procedures for recognition. They may be organized as associations, confessional communities, or corporations under public law, and are subject to relevant ecclesiastical and tax law regulations. The rights and duties of Free Churches include, among other things, self-governance, tax privileges, special labor and data protection regulations, as well as—in individual cases—the right to levy church taxes and enter into contracts with the state.
Frequently Asked Questions
What legal form do Free Churches have in Germany?
In Germany, most Free Churches take the legal form of a registered association (e.V.) according to the German Civil Code (BGB). This grants them independent legal personality, allowing them to enter into contracts, acquire property, and participate in legal transactions as a legal entity. In addition, many Free Churches also apply for recognition as a corporation under public law pursuant to Article 140 of the Basic Law in conjunction with Article 137 of the Weimar Constitution. This recognition provides them with extended rights, such as levying church tax (though this is rarely used in practice), employer status, and the opportunity to operate their own cemeteries. The prerequisites for this include, among others, the guarantee of permanence and loyalty to the legal order. However, this status is not mandatory; many smaller Free Churches remain as registered associations.
Do Free Churches have to pay taxes in Germany?
Free Churches, like other ecclesiastical corporations, are fundamentally recognized as charitable if they fulfill the requirements of §§ 51 ff. of the Fiscal Code (AO). Accordingly, they are generally exempt from corporate income tax and trade tax. Donations to Free Churches can be claimed for tax purposes if the Free Church possesses a valid certificate of charitable status from the tax office. Nevertheless, revenues not directly serving religious purposes or the corporate purpose are subject to sales tax requirements. Income from commercial activities, such as the sale of books or CDs, must be reported for tax purposes accordingly.
How is the relationship between Free Churches and the state regulated?
The relationship between Free Churches and the state is based on the principle of the separation of church and state, as established in Article 140 of the Basic Law in conjunction with Article 137 of the Weimar Constitution. The state is obliged to act neutrally and may not favor or disadvantage any religious or ideological community (religious freedom and principle of equal treatment). Free Churches have the right to manage their affairs independently (right of self-governance), may organize themselves as legal entities, and design their internal structures, rituals, and memberships according to their own rules, provided these do not violate general law.
Are Free Churches entitled to state benefits?
There is fundamentally no entitlement to direct state subsidies or privileges unless the Free Church is recognized as a corporation under public law and the benefits are also equally granted to other religious communities (principle of equal treatment). Grants, for example for social projects or daycare centers, are possible but generally provided under general support for charitable organizations and not specifically due to the status as a Free Church. Free Churches may also, as part of church cooperation, provide pastoral care in state institutions if appropriate agreements are in place.
How is membership in Free Churches legally regulated?
Membership in a Free Church is on a voluntary basis and, as with associations, is subject to the principle of private autonomy. The statutes of the respective Free Church govern the conditions for admission and termination of membership. Legally, this usually constitutes membership in an association, which also means members can terminate their membership at any time, e.g., by submitting a declaration of resignation. Member rights and obligations are based on the applicable statutes, provided these do not conflict with the law. Declarations of withdrawal to the civil registry office are only required for corporations under public law; for Free Churches organized under association law, a written declaration to the board is usually sufficient.
Are Free Churches subject to state supervision?
As associations, Free Churches are generally subject to state supervision, especially concerning compliance with statutory provisions, non-profit regulations, and risk prevention. If they are recognized as corporations under public law, they are additionally subject to certain supervisory powers of the competent government authorities, regarding compliance with public law and the proper use of their rights. However, their internal organization and doctrine remain exempt from state supervision and are protected under religious freedom.
Can Free Churches operate their own educational institutions?
Yes, Free Churches have the right to establish and operate their own educational institutions, such as schools or kindergartens. However, for state recognition of such institutions, the respective state-specific school and education laws must be observed, and minimum requirements with respect to curricula, teacher qualifications, and facilities must be met (§ 7 GG). For day care centers, federal and state legal provisions apply, such as those from the Child and Youth Services Act (SGB VIII). If all state requirements are met, Free Churches are also entitled to public subsidies according to statutory regulations.
