The Freikirche case: Is the Court of Justice reinforcing or eroding the European Wall of Separation?

Abstract

The purpose of this Case Note is to analyse the latest judgment of the Court of Justice related to Article 17(1) TFEU – the Freikirche case. After providing the key facts and the reasoning of the Court, the note outlines the common features and differences of the case with the previous case law related to this provision. The author claims that while the Court in the Freikirche case recognizes the protective effect of Article 17(1) TFEU, it implicitly creates potential to examine other national recognition systems of churches. In the author’s view, in cases of a more restrictive national systems than the Austrian one, this provision should be used as a part of the proportionality analysis to balance the restrictions against the potential impact on the status of churches under national law and their autonomy. In the author’s view, this would be the consequence of the protective effect of this provision, which may be perceived as the European Wall of Separation between the EU on one hand, and the status of churches under national law and the autonomy of churches on the other hand.