The European Court of Human Rights (ECHR) has ruled that religious freedom trumps the right to found a trade 
union.
Last week, the Grand Chamber of the ECHR held [1] that Member States can refuse to recognise a priests’ union, on the basis that recognition would violate a Church’s right to function according to its own internal rules.
The Court ruled that this would breach Article 9 of the the European Convention of Human Rights which guarantees the principle of autonomy on behalf of religious freedom.
The case, Sindicatul “Pastorul cel bun” v. Romania, involved group of priests of the Romanian Orthodox Church who sought to form a trade union against the wishes of their bishops.
The Romanian courts and the Romanian government found that the establishment of such a “rogue” union would violate the Church’s freedom of religion.
The priests appealed to the ECHR, and the Third Section (a smaller panel of ECHR judges) found that the employees’ right to unionise trumped the Church’s beliefs about the duties of loyalty that a priest owes to his bishop.
The case was then appealed to the Grand Chamber.
The initial ruling was criticised by Dr Gregor Puppinck, Director of the European Centre for Law and Justice (ECLJ) a non-governmental organisation which defends religious freedom, because it imposed “a form of legal secularisation of internal churches’ relations”.
The Grand Chamber ruling, on the other hand, recognised that the State was entitled not to impose a simple employer/employee structure on the ancient relationship between Church and priest.
It held: “[M]embers of the clergy assume obligations of a special nature in that they are bound by a heightened duty of loyalty, itself based on a personal, and in principle irrevocable, undertaking by each clergyman.”
However, Dr Puppinck also criticised the Grand Chamber ruling for appearing to give jurisdiction to national courts to decide on the internal workings of churches.
Quoting the ruling, he said it stated that it was up to national courts to decide in which circumstances a given church had autonomy “by conducting an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake”.
Dr Puppinck added: “By submitting like so the respect of churches’ autonomy to a well-considered and detailed examination of civil judges, the Grand Chamber gives jurisdiction to the civil courts to settle internal church disputes, and wanders from its previous jurisprudence that was more respectful of religious freedom and of the separation of State and churches.”
And he pointed out that ruling, rather than insisting on the right of churches to have autonomy, merely gives Member States to recognise churches autonomy.
“In a nutshell, the Grand Chamber said that States can uphold the freedom of the Church, whereas the Section’s (ie the original) judgement used to say that they should not respect it. There is therefore a certain progress. However, the Grand Chamber remains silent as to the circumstances in which the State must respect the churches’ freedom. Freedom of the Church is not opposed to the State; the State becomes the “guardian” for it, for better or for worse,” he said.