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

Published date01 April 2023
DOIhttp://doi.org/10.1177/1023263X231189686
AuthorTomáš Buchta
Date01 April 2023
The Freikirche case: Is the Court
of Justice reinforcing or eroding
the European Wall of
Separation?
TomášBuchta*
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 authors view, in cases of a more restrictive
national systems than the Austrian one, this provision should be used as a part of the proportion-
ality analysis to balance the restrictions against the potential impact on the status of churches
under national law and their autonomy. In the authors 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.
Keywords
Status and recognition of churches, Article 17 TFEU, Wall of Separation, economic activities,
proportionality test
1. Introduction
The term Wall of Separationas described by Thomas Jefferson originates from the US concept of
the relationship between the state and the church. It ref‌lects the principles enshrined in the First
*
Permanent Representation of the Slovak Republic to the EU, Brussels, Belgium
Corresponding author:
TomášBuchta, Permanent Representation of the Slovak Republic to the EU, Avenue de Cortenbergh 79, Brussels, 1000,
Belgium.
Email: buchtatomas@gmail.com
Case Note
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(2) 191200
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231189686
maastrichtjournal.sagepub.com

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