issued by the Registrar of the Court

ECHR 122 (2022)

05.04.2022

Failure to grant congregations of Jehovah’s Witnesses exemption from

property tax in the Brussels-Capital Region since 2018 was discriminatory

In today’s Chamber judgment¹in the case of Assemblée Chrétienne Des Témoins de Jéhovah

d’Anderlecht and Others v. Belgium (application no. 20165/20) the European Court of Human Rights

held, unanimously, that there had been:

a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 9 (freedom

of thought, conscience and religion) of the European Convention on Human Rights and with

Article 1 of Protocol No. 1 (protection of property) to the Convention.

The case concerned congregations of Jehovah’s Witnesses which complained of being denied

exemption from payment of a property tax (précompte immobilier) in respect of properties in the

Brussels-Capital Region used by them for religious worship. According to an order of 23 November

2017 enacted by the legislature of the Brussels-Capital Region, as of the 2018 fiscal year the

exemption applied only to “recognised religions”, a category that did not include the applicant

congregations.

The Court held that since the tax exemption in question was contingent on prior recognition,

governed by rules that did not afford sufficient safeguards against discrimination, the difference in

treatment to which the applicant congregations had been subjected had no reasonable and

objective justification. It noted, among other points, that recognition was only possible on the

initiative of the Minister of Justice and depended thereafter on the purely discretionary decision of

the legislature. A system of this kind entailed an inherent risk of arbitrariness, and religious

communities could not reasonably be expected, in order to claim entitlement to the tax exemption

in issue, to submit to a process that was not based on minimum guarantees of fairness and did not

guarantee an objective assessment of their claims.

Principal facts

The applicants are nine associations established under Belgian law which have properties in the

Brussels-Capital Region used for public worship.

On 23 November 2017 the legislature of the Brussels-Capital Region amended the Income Tax Code

and restricted the exemption from property tax in respect of properties in the region used for public

worship to “recognised religions”. The amendment took effect from the 2018 fiscal year onwards. As

the applicant associations, nine congregations of Jehovah’s Witnesses, did not belong to a

“recognised religion”, they were no longer able to claim the exemption to which they had previously

been entitled in the Brussels-Capital Region. They applied to the Constitutional Court seeking the

setting-aside of the provision in question, and their application was rejected in November 2019. The

Constitutional Court found that the financial impact on the applicant associations was not such as to

jeopardise their internal organisation, functioning or religious activities. It also found that the

requirement for the religious denomination to be recognised was not disproportionate since faiths

that were not recognised could apply for recognition.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

In Belgium, religious denominations have the possibility of lodging an application for recognition,

which is optional rather than compulsory. The recognition of religions is a federal matter. The

procedure for recognition is not enshrined in legislation but is derived from administrative practice.

According to the replies given by the Minister of Justice to MPs’ questions, a faith must satisfy five

criteria to qualify for recognition. The application has to be made to the Minister of Justice, who

decides whether the criteria are satisfied. In the event of a favourable decision, the Minister may

table draft legislation on recognition in the House of Representatives, as recognition is a prerogative

of the legislature. There are currently six recognised religious denominations in Belgium:

Catholicism, Protestantism, Judaism, Anglicanism, Islam and the Orthodox faith. Applications for

recognition of Buddhism and Hinduism were lodged in 2006 and 2013 respectively, but the

authorities have not given a decision on them to date.

Complaints, procedure and composition of the Court

The applicant associations alleged that they had been the victims of discrimination on account of the

fact that the new legislation in the Brussels region made exemption from property tax (précompte

immobilier) contingent on belonging to a “recognised religion”. They relied, in particular, on

Article 14 (prohibition of discrimination) of the Convention, read in conjunction with Article 9

(freedom of thought, conscience and religion) and with Article 1 of Protocol No. 1 (protection of

property) to the Convention.

The application was lodged with the European Court of Human Rights on 14 May 2020.

Judgment was given by a Chamber of seven judges, composed as follows:

Georges Ravarani (Luxembourg), President,

Georgios A. Serghides (Cyprus),

María Elósegui (Spain),

Anja Seibert-Fohr (Germany),

Andreas Zünd (Switzerland),

Frédéric Krenc (Belgium),

Mikhail Lobov (Russia),

and also Olga Chernishova, Deputy Section Registrar.

Decision of the Court

Article 14 in conjunction with Article 9 of the Convention and Article 1 of Protocol No. 1

The applicant associations alleged that the tax in question was equivalent to 23% of the donations

they received, which constituted their sole source of funding. It also transpired from the accounting

documents produced by the applicant associations that the amount payable by way of this tax

accounted for a substantial proportion of the annual running costs connected with their buildings.

Overall, the property tax they were required to pay represented between 21.4% (41,984.23 euros

for all the applicant associations) and 32% (42,830.25 for all the associations) of those costs,

depending on the year.

In the Court’s view, these amounts were not insignificant and had a considerable impact on the

operation of the applicant associations as religious communities. The facts of the case therefore

came within the ambit of Article 9 of the Convention and Article 1 of Protocol No. 1 to the

Convention.

As to whether there had been a difference in treatment, the Court noted that in enacting the

measure in question, the legislature of the Brussels-Capital Region had sought to prevent abuse

arising out of the exemption from property tax of premises that were in fact designated for use by

“fictitious” religious denominations. It observed that there was nothing in the case submitted to the

Court to suggest that the applicant associations had committed, or been suspected of committing,

any fraud in benefiting in the past from the exemption from property tax in respect of their places of

worship. Nevertheless, the prevention of tax fraud was an aim whose legitimacy per se could not be

called into question by the Court.

As to whether the means used had been proportionate to the aim pursued, the Court considered

that in using the recognition of a religious faith as the basis for distinguishing between claims for

exemption from property tax, the authorities had opted for an objective criterion that was

potentially relevant with regard to the aim pursued. In itself, the choice of such a criterion fell within

the margin of appreciation left to the national authorities in the sphere under consideration.

The Government argued that it was open to the applicant associations to apply for recognition of

their faith at federal level in order to continue to claim exemption in the Brussels-Capital Region. The

applicant associations countered that it would be pointless to apply, given the serious shortcomings

in the procedure for claiming recognition.

The Court noted in that connection that neither the criteria for recognition nor the procedure

leading to recognition of a faith by the federal authority were laid down in an instrument satisfying

the requirements of accessibility and foreseeability, which were inherent in the notion of the rule of

law governing all the provisions of the Convention.

It observed, firstly, that recognition of a faith was based on criteria that had been identified by the

Minister of Justice only in reply to questions put by members of parliament. Moreover, as they were

couched in particularly vague terms they could not, in the Court’s view, be said to provide a

sufficient degree of legal certainty.

Secondly, the Court noted that the procedure for the recognition of faiths was likewise not laid

down in any legislative or even regulatory instrument. This meant, in particular, that the

examination of applications for recognition was not attended by any safeguards, with regard either

to the actual adoption of the decision on such applications or to the process leading to the decision

and the possibility of appealing against it subsequently. In particular, no time-limits were laid down

for the recognition procedure, and no decision had yet been taken on the applications for

recognition lodged by the Belgian Buddhist Union and the Belgian Hindu Forum in 2006 and 2013

respectively.

Lastly, recognition was only possible on the initiative of the Minister of Justice and depended

thereafter on the purely discretionary decision of the legislature. A system of this kind entailed an

inherent risk of arbitrariness, and religious communities could not reasonably be expected, in order

to claim entitlement to the tax exemption in issue, to submit to a process that was not based on

minimum guarantees of fairness and did not guarantee an objective assessment of their claims.

In sum, since the tax exemption in question was contingent on prior recognition, governed by rules

that did not afford sufficient safeguards against discrimination, the difference in treatment to which

the applicant associations were subjected had no objective and reasonable justification. There had

therefore been a violation of Article 14 of the Convention, read in conjunction with Article 9 of the

Convention and with Article 1 of Protocol No. 1 to the Convention.

Just satisfaction (Article 41)

The Court held, by a majority (6 votes to 1), that the finding of a violation constituted in itself

sufficient just satisfaction for the non-pecuniary damage sustained by the applicant associations. It

also held, unanimously, that Belgium was to pay the applicant associations 5,000 euros (EUR) in

respect of costs and expenses.

Separate opinion

Judge Serghides expressed a partly dissenting opinion which is annexed to the judgment.

The judgment is available only in French.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive

the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter

@ECHR_CEDH.

Press contacts

echrpress@echr.coe.int | tel.: +33 3 90 21 42 08

We would encourage journalists to send their enquiries via email.

Inci Ertekin (tel : + 33 3 90 21 55 30)

Tracey Turner-Tretz (tel : + 33 3 88 41 35 30)

Denis Lambert (tel : + 33 3 90 21 41 09)

Neil Connolly (tel : + 33 3 90 21 48 05)

Jane Swift (tel : + 33 3 88 41 29 04)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.