Every year, more than 200.000 believers turn their backs on the large Christian churches. Many of them pay a fee for this. In North Rhine-Westphalia, a case is causing a stir in which the church resignation of a Hartz IV recipient fails because of the cost of 30 euros. Thomas Traub on the legal background to such charges and a simple solution for special cases.
Almost 50 million Germans are members of the Protestant or Catholic church. Leaving the church is not possible, at least according to the Catholic understanding: Once a Catholic, always a Catholic.
Nevertheless, there is a fundamental right to leave the church. The freedom of religion according to Art. 4 Abs. 1 and 2 Basic Law (GG) not only grants the right to have a faith, to profess it, to practice one’s religion and to join together with other believers to form religious communities.
Negative religious freedom is also guaranteed, i.e. the right to have no faith and not to belong to a religious community. The state is constitutionally obliged to provide for the possibility of leaving the church. This obligation was implemented by the church exit laws of the federal states.
Church resignation must be declared before state authority
For example, Section 1 of the NRW Church Withdrawal Act provides for the possibility of withdrawing from a religious community under public law with effect for the state sector. Anyone who submits such a declaration of resignation is no longer treated as a member of the church by the state authorities – irrespective of the internal church effect of this resignation. This has practical significance above all for the levying of church taxes.
The resignation from the church is not declared before an ecclesiastical body, but before a state body. In most federal states, the registry office is responsible for this; in other states, the local court is responsible.
Many federal states charge a fee for processing the declaration of leaving the church. In NRW, the obligation to pay fees arises from the NRW Judiciary Act in conjunction with § 6 of the Church Withdrawal Act. No. 5 of the schedule of fees provides for a fee of 30 euros for leaving a church.
BVerfG: Fees constitutionally justified
This legal regulation has already been the subject of a constitutional complaint to the Federal Constitutional Court (BVerfG). In their decision, the judges found that the fee-based procedure is constitutional (Beschl. v. 02.07.2008, Az. 1 BvR 3006/07).
The BVerfG does see the imposition of a fee as an encroachment on the sphere of protection of religious freedom, since Art. 4 para. 1 GG also grants the right to withdraw from church membership at any time by resignation with effect for state law. However, this encroachment is constitutionally justified.
The state government of North Rhine-Westphalia had justified the amount of the fee by the fact that at least 15 minutes of staff time are required for the processing and additional material and other material costs are incurred. The BVerfG considers this to be convincing and reasonable for the person wishing to resign. The reliable and formalized processing of church resignations is required above all for the orderly administration of church taxes, which in turn are governed by Art. 140 GG i.V.m. Art. 137 para. 6 WRV enjoys constitutional protection.
Special examination required in cases of hardship
The amount of 30 euros is a monetary payment under public law, which is imposed on the person wishing to leave the church on the occasion of an individually attributable public service, namely the processing of the resignation from the church. A deviation from the fee-law principle of cost recovery was not necessary.
With the reference to the cost recovery the decision clarifies at the same time the constitutional limits of the fee height: The church exit fee may not be determined with the goal to steer the behavior of the resignation-willing and to deter it from a church exit. A fee of 30 Euros is not an unreasonable burden for the average church member who wants to leave the church.
However, the BVerfG requires consideration of special cases of hardship, in which even this objectively small fee is a serious obstacle to exit. The legislator is obliged to provide for exemptions and reductions.
The fee law knows such hardship clauses. According to § 124 Justizgesetz NRW the Justizverwaltungskostenordnung des Bundes (JVKostO) is applicable to the collection of costs by the judicial authorities of the state. According to § 12 JVKostO, the authority can exceptionally reduce the fees or waive the collection of costs altogether, if this appears necessary with regard to the economic circumstances of the payer.
For Hartz IV recipients fee is serious obstacle
The wording of the provision speaks of "may", therefore gives the authority discretion. In the dutiful exercise of discretion, however, the authority must consider the right to charge in the light of the negative freedom of religion from Art. 4 Abs. Interpret and apply 1 and 2 GG.
For a recipient of Hartz IV, you can typically assume that a fee of 30 euros is a serious obstacle to implement the decision to leave the church. Because of his income situation he will not pay church tax regularly, so that also the savings by the future omission of the church tax obligation cannot be held against him.
Altogether it shows up: A cost-covering fee for the procedure of the church exit does not hurt the negative religion liberty. The Basic Law requires however that the church exit in individual cases does not fail because of missing financial means.
Thomas Traub is a doctoral student and research assistant at the Institute for Canon Law at the University of Cologne.