Term and Legal Foundations of the Protestant Church
Die Protestant Church refers, under German legal understanding, to the corporations, institutions, and enterprises that organize Protestant religious practice in accordance with reformation traditions. It holds a central position in Germany’s constitutional law on religion and bears extensive rights and obligations. The following article examines the legal structure, statutory foundations, relationship to the state, as well as the asset and employment relations of the Protestant Church.
Definition and Constitution of the Protestant Church
Terminological Distinction
The Protestant Church is a generic term for various regional churches, which in Germany are primarily united in the ‘Evangelische Kirche in Deutschland’ (EKD). Legally, the Protestant Church may refer to the EKD, its individual member churches, as well as specific parish and association levels.
Legal Status as a Public Law Corporation
The Protestant Church and its member churches are generally recognized as public law corporations (§ 140 Basic Law, Art. 137 Weimar Constitution). This legal form grants them a special legal status, which includes, among other things, autonomous administration of internal affairs, levying of church taxes, and the right to display official emblems. The award of this legal form is granted upon application and is tied to certain prerequisites such as permanence, number of members, and assurance of legal compliance.
Legal Foundations and Constitutional Status
Constitutional Classification
The legal basis for the autonomy and operation of the Protestant Church is derived analogously from the German Basic Law (Art. 4 and Art. 140 Basic Law in conjunction with Art. 137 ff. Weimar Constitution). These provisions guarantee the right of self-administration, equality with other religious communities, and the right to establish public-law offices.
State-Church Relations (Principle of Separation)
The relationship between the Protestant Church and the State is characterized by the principle of qualified separation (“parity-based cooperation”). While organizational and financial independence is guaranteed on one hand, there are nonetheless close cooperations, for example in social, educational, and ethical sectors.
Church Law and Internal Organization
Autonomy and Right to Statute
The Protestant Church holds the right to organize and regulate its affairs independently (church autonomy). This especially includes the adoption of statutes, church constitutions, ecclesiastical laws, as well as its own courts for resolving internal church disputes.
Ecclesiastical Legislation
The EKD’s member churches enact their own church laws on the basis of their respective constitutions, which determine the church’s administrative and disciplinary order. These laws are binding on members as well as other persons associated with the church.
Changing Church Affiliation and Leaving the Church
Membership in the Protestant Church is based on the principle of voluntariness. Church resignation must be declared before the civil registry office or local court under state law, after which obligations—especially the duty to pay church tax—cease.
Property Law Aspects and Financial Administration
Church Tax Law
Among the most prominent rights of the Protestant Church as a recognized public law corporation is the right to collect church tax (§ 140 Basic Law, Art. 137 para. 6 Weimar Constitution). Administration and collection of church tax are effected in cooperation with state tax authorities under relevant state law provisions.
Sources of Income and Financial Administration
In addition to church tax, the Protestant Church is financed by donations, collections, returns on assets (e.g., foundations), grants from public bodies, and revenues for social institutions. Financial administration is subject to internal control as well as external audits under the budgetary rules of the respective member church.
Legal Status of Church Institutions and Enterprises
Social and Educational Institutions
The Protestant Church sponsors a wide range of social institutions such as kindergartens, hospitals, nursing homes, and educational organizations. These institutions are subject to church law as well as government regulations, especially in social and labor law.
Special Status in Employment Law (Third Way)
In some respects, the employment law of the Protestant Church deviates from general employment law. Under the provisions of the so-called Third Way collective bargaining takes place in commissions made up of equal representation. The application of “church employment law,” including loyalty requirements, has been the subject of rulings by the highest courts and is discussed in the context of European law.
Protestant Church in International and European Law
The Protestant Church is legally independent in Germany, but works closely with international churches, particularly within Europe. In cross-border activities, it is subject to the respective domestic and foreign legal regulations, for example concerning data protection (GDPR), labor law, or tax law.
Roles in Civil Law and Public Law
Civil Law Capacity to Act
As a public law corporation, the Protestant Church also holds civil law rights and obligations. It can enter into contracts, acquire property, and be the trustee of foundations and other assets.
Public Law Authority
To carry out its tasks, the Protestant Church may be granted certain sovereign rights, such as running its own registry offices, teaching religious education in public schools (Art. 7 para. 3 Basic Law), or participating in public-law bodies.
Data Protection, Archival Law and Reporting
The Protestant Church enacts its own data protection laws, which are adapted to the requirements of the General Data Protection Regulation (GDPR). Church registry and archival law regulate the management and use of personal data and archives.
Summary
The Protestant Church is entrenched in German law as a public law corporation and enjoys extensive rights concerning self-administration, tax collection, and legal self-organization. Its legal status is shaped by the principles of separation and cooperation with the state. It plays a significant role in the social and societal infrastructure and is subject to both its own church law and government regulations, particularly in the areas of tax, labor, and data protection law. This underscores its complexity within the context of constitutional law on religion and its importance for social cohesion.
Frequently Asked Questions
What is the state-church legal status of the Protestant Church in Germany?
The Protestant Church in Germany (EKD) has the status of a public law corporation in the Federal Republic of Germany in accordance with Art. 140 Basic Law in conjunction with Art. 137 para. 5 Weimar Constitution. This special status enables it to enact its own legal standards (church ordinances), offer religious education in public schools, and levy taxes—so-called church taxes—from its members. Recognition as a public law corporation is carried out according to state law by respective ministries of education and culture, with the status under Article 137 paragraph 5 Weimar Constitution being established by continued existence and membership numbers. The EKD regulates its internal matters independently and is only subject to general governmental legal supervision in its administrative activities.
To what extent is the Protestant Church independent from the state and what are the legal implications?
The separation of church and state is enshrined in Germany by Art. 140 Basic Law in connection with the Weimar Church Articles. The Protestant Church manages its own affairs independently within the limits of laws that apply to everyone (Art. 137 para. 3 Weimar Constitution). This means that the Protestant Church enjoys far-reaching autonomy in the area of its own regulatory powers, particularly in questions of doctrine, administration, worship, and determining its internal structure. State intervention is only permitted if the church contravenes general laws or affects the public interest, for example in employment law or building regulations for church buildings. Furthermore, the state is obliged to neutrality on the basis of so-called “parity” and must not grant a privileged status to any particular denomination.
What legal regulations apply to the church tax of the Protestant Church?
The levying of church tax is governed legally by the church tax laws of the federal states and is based in the constitution (Art. 140 Basic Law in conjunction with Art. 137 para. 6 Weimar Constitution). Under this, religious societies that are public law corporations can collect taxes from their members in accordance with state law provisions. The assessment, collection, and administration of church tax are usually performed by state tax authorities as an administrative service, for which the church pays administrative fees. The legal relationship is directly between the individual church member and the church; the state acts merely as trustee in the collection process. Any disputes regarding tax liability, amount, or withdrawal are subject to the jurisdiction of the tax courts.
Which employment law applies within the Protestant Church?
Within the Protestant Church, the so-called church employment law applies, which is characterized by the right to self-determination under Art. 140 Basic Law in conjunction with Art. 137 para. 3 Weimar Constitution and § 118 para. 2 Works Council Act (BetrVG). The Protestant Church may establish special regulations for its employees, which is reflected in the so-called “Third Way”: Employment contracts and working conditions are not negotiated through collective bargaining agreements or the right to strike, but by commissions with equal representation. The legal basis for this special status is provided by relevant church ordinances and church employment law, whereby state courts exercise oversight concerning mandatory employment law provisions and fundamental rights. The General Equal Treatment Act (AGG) also applies with modifications, insofar as denominational requirements are concerned.
How does the Protestant Church regulate data protection law?
A separate data protection law applies to the Protestant Church, namely the “Church Law on Data Protection of the Protestant Church in Germany” (DSG-EKD). This law fulfills the requirements of the General Data Protection Regulation (GDPR) pursuant to Art. 91 GDPR, which allows churches to issue their own data protection rules provided they are consistent with the GDPR. The EKD has its own data protection officer as well as its own supervisory authorities. The provisions of the DSG-EKD regulate, among other things, the processing, storage, transfer, and deletion of personal data in the church sector, and also include specific requirements for church institutions such as kindergartens, schools, or diaconal organizations. Complainants have the option to appeal to church complaint bodies or state courts if they believe their rights have been violated.
What legal remedies are available for disputes within the Protestant Church?
Disputes in internal church matters—such as regarding church membership, disciplinary measures, or service matters of church employees—are generally subject to church jurisdiction. The EKD and the regional churches maintain their own church courts, which decide according to their own procedural law. In disputes concerning state-church law, tax law, or employment law, state courts may also have jurisdiction. The permissibility of the legal process is determined by the distinction between internal church (doctrinal and confessional matters) and secular matters (financial and employment law issues). In the field of church employment law, state labor courts regularly perform a parallel review.
What is the legal significance of leaving the Protestant Church?
Leaving the Protestant Church is legally a unilateral, formal declaration of intent that must be made to a state body (usually the civil registry office or local court). The legal consequences of leaving, regulated for example by the church tax law of the federal states, are the loss of church membership and immediate exemption from the obligation to pay church tax. Other church law consequences include exclusion from church acts, certain church services, and offices. The state notifies the relevant church after resignation, and personal data is adjusted accordingly. Resignation from the church is possible at any time and does not require a specific reason; federal states may adopt different administrative fees (up to around €30). Resignation also forms the basis for ending the status of a liable person under the church’s data protection law.
