State services

Under state services is understood in German religious constitutional law all at law , contract or special legal title based and stable long-term obligations of countries to the religious communities (churches), the historical due to circumstances created and the entry into force of the Weimar Constitution already passed on 14 August 1919th All performance obligations of the federal states or the federal government to the religious societies / churches introduced after this date do not belong to the state services within the meaning of the Basic Law and the Weimar Constitution of 1919.

In 2019, the German federal states, with the exception of Hamburg and Bremen, paid around 549 million euros to religious communities. According to the Evangelical Church in Germany (EKD), government benefits account for an average of 2.6 percent of the respective total income of the churches. In Germany, government services will benefit the church taxes and subsidies for church financing with.

Since the Weimar Constitution came into force, the constitutional mandate has existed for the final termination of all state services through a one-off replacement. This replacement requirement was incorporated into the Basic Law by Art. 140 in 1949 and is also part of some state constitutions such as B. those of Mecklenburg-Western Pomerania (Art. 9), Baden-Württemberg (Art. 5), Hesse (Art. 52), Thuringia (Art. 40), North Rhine-Westphalia (Art. 22) and Saxony (Art. 109 ). Nevertheless, this constitutional mandate has still not been fulfilled for 100 years.

Constitutional text

The state services are finally regulated in Art. 138, Paragraph 1 of the Weimar Constitution (WRV) , which, according to Art. 140 of the Basic Law, is part of the Basic Law and thus applicable constitutional law.

Basic Law Art. 140 (GG):

The provisions of Articles 136, 137, 138, 139 and 141 of the German constitution of August 11, 1919 are part of this Basic Law.

Art. 138 para. 1 Weimar Constitution (WRV):

The state benefits to religious societies based on law, contract or special legal titles are replaced by state legislation. The kingdom sets the principles for this.

Art. 173 Weimar Constitution (WRV):

Until the enactment of a Reich law in accordance with Article 138, the previous state payments to religious societies based on law, treaty or special legal titles remain in effect.

To replace the state payments to religious societies that existed when the WRV came into force by the state legislature, i.e. to finally end them in return for a one-off payment of compensation. Art. 138 para. 1 WRV thus expressly excludes state benefits from the so-called church property guarantee in Art. 138 para. 2 WRV.

According to Art. 138 Para. 1 Clause 2 WRV, the principles for the replacement are to be drawn up by the German Reich , ie today the German Bundestag . So that the states, as those obliged to pay, cannot get rid of the state services without consideration and at the expense of the churches, the Reich should set up principles for the redemption itself, not affected by payment obligations. However, this has not happened to this day, so that the state legislation could not take action. The Left parliamentary group in the German Bundestag made a concrete attempt to replace it . In 2012 it presented a draft law on the principles for the replacement of state benefits to religious societies (State Benefits Transfer Act - StAblG) . However, the first reading debate on February 28, 2013 showed that the other political groups oppose a law, at least in the proposed form. The constitutional mandate to establish the principles of replacement has not been fulfilled since 1919. According to its answer to a small question from the DIE LINKE parliamentary group on April 9, 2014, despite the unconditional constitutional mandate, the federal government currently sees no need for action to enact a fundamental law that could provide the federal states with the framework for replacing their state services.

According to the prevailing opinion, the state benefits are to continue to be paid by the German federal states until they are replaced, even if Art. 173 WRV did not become part of the Basic Law, as it was only of a declaratory nature.

In the first reading, the main committee of the Parliamentary Council decided on a version of Article 140 of the Basic Law, which only referred to paragraph 2 of Article 138 WRV, but did not include the provisions on state benefits in paragraph 1 (as well as other articles). To this end, he expressly ordered the state church treaties to continue to exist , although it was disputed whether this should include the Reich Concordat. The main committee initially failed to reach agreement on the wording and content of Article 140 of the Basic Law, so the Committee of Five proposed a wording that also included Article 138 (1) WRV. After further additions to the main committee adopted in the fourth reading today's version of Art. 140 of the Basic Law, and so let the rules of the Weimar Constitution regarding the prepayment of state services continue in force as constitutional law.

Main features

From the historical context and the systematic connection with the replacement requirement of Art. 138 Para. 1 WRV result three essential characteristics.

State services are exclusively asset-based legal positions, since the transfer offer can only refer to these.
It must be about recurring and long-term performance relationships, otherwise fulfillment instead of replacement would be possible.
The performance relationships must have already existed before the Weimar Constitution came into force on August 14, 1919.

purpose

State services serve to fulfill church tasks and to cover church needs. However, they are paid without earmarking and their actual use is at the discretion of the respective religious community. A usage test by state authorities does not take place.

In many contracts between the federal states and the churches, the purpose of state services was agreed.

For example: Art. 14 Para. 1 Güstrow Treaty

The state pays the churches a total subsidy instead of all previously granted endowments for church management, pastors 'salaries and pastors' provisions, as well as in lieu of all other payments based on special legal titles.

Differentiation from other services

Share of state benefits in total income of the Protestant church

State benefits are to be distinguished from subsidies and other benefits that religious societies receive for performing state tasks in the public interest (e.g. kindergartens , schools , hospitals , advice centers, etc.). The exemption of the churches from court fees is also not a government service i. S. d. Art. 138 para. 1 WRV. State expenses for religious education in public schools, for the theological faculties at universities, and for prison and military chaplaincy are just as little part of the state benefits as payments by the state based on private law contracts (e.g. purchase , rent , etc.) . Such non-sovereign power relations between the state and churches also include the so-called patronage . This is a property law institute of church law , which should enable the promotion of the churches by private persons, parishes or sovereigns.

All state performance relationships introduced after the deadline of August 14, 1919 (entry into force of the WRV) are not covered by the scope of Art. 138 Para. 1 WRV. This results among other things from the connection with Art. 173 WRV, in which express reference is made to the "previous" state services.

Current level of government benefits

According to research by the Humanist Union, payments by the federal states with the exception of the city states of Bremen and Hamburg to the churches amount to around 549 million euros in 2019 .

The state benefits increase regularly because in most federal states they are linked to the salary development of state officials.

The Protestant and Catholic churches in Germany in particular receive state benefits. In some federal states, grants are also paid to other churches / religious societies and ideological communities for reasons of equal treatment. In the budget of the federal states for 2019, a total of around 629 million euros is estimated.


state	Ev.-Luth. church	Cath. church	Jewish / Israel. Communities	Humanists	Altkath. church	Ev.-Ref. Churches / Method. Churches	other	total	Approach in the respective Budget 2019
Baden-Württemberg	€ 62,812,200	€ 62,438,400	€ 9,453,600	€ 60,200	€ 436,900	€ 16,000	€ 127,500	€ 135,344,800	Chapter 0455
Bavaria	€ 24,772,000	€ 74,277,000	€ 11,750,000	€ 16,000	€ 21,000	€ 22,000	€ 1,033,000	€ 111,891,000	Chapters 0550, 0551 and 0552
Hesse	€ 38,353,550	€ 16,620,250	€ 6,095,000		€ 40,000		€ 8,000	€ 61,116,800	Chapter 0402 Funding No. 2
Rhineland-Palatinate	€ 26,393,000	€ 33,455,300	€ 635,200		€ 5,000		€ 109,100	€ 60,597,600	Chapter 1559
Lower Saxony	€ 38,347,000	€ 9,644,000	€ 3,004,000	€ 264,000		€ 3,000	€ 200,000	€ 51,462,000	Chapter 0765
North Rhine-Westphalia	€ 9,225,400	€ 13,631,500	€ 17,340,000		€ 260,800			€ 40,457,700	Chapter 02050
Saxony-Anhalt	€ 29,250,000	€ 6,020,000	€ 1,495,000					€ 36,765,000	Chapter 1315
Saxony	€ 29,730,000	€ 1,180,000	€ 1,000,000					€ 31,910,000	Chapter 0503 Title 68401
Thuringia	€ 20,077,800	€ 6,157,800	€ 444,900					€ 26,680,500	Chapter 1710
Berlin	€ 7,872,000	€ 3,739,000	€ 12,782,000	€ 600,000	€ 10,000			€ 25,003,000	Chapter 0820
Mecklenburg-Western Pomerania	€ 15,761,600	€ 655,100	€ 439,000			€ 42,300		€ 16,898,000	Chapter 0904
Schleswig-Holstein	€ 13,647,000	€ 236,000	€ 817,900		€ 11,600	€ 3,300	€ 16,700	€ 14,732,500	Chapter 0741
Brandenburg	€ 12,229,100	€ 1,554,400	€ 650,000	€ 100,000	€ 50,000		€ 100,000	€ 14,683,500	Chapter 06810 Title 68480 and 68580
Saarland	€ 177,400	€ 606,800	€ 575,000		€ 71,700			€ 1,430,900	Chapter 0617
Hamburg									no state benefits
Bremen									no state benefits
total	€ 328,648,050	€ 230,215,550	€ 66,481,600	€ 1,040,200	€ 907,000	€ 86,600	€ 1,594,300	€ 628,973,300

The partial amounts for Saxony in this table were estimated based on the information for 2018 in Drs.-No .: 6/16572 for 2018 and the salary development. For Hessen, the construction obligation in the amount of EUR 3,585,100.00 was each 50% of the cath. and possibly assigned to the church.

In 2020, government payments amounted to over 569 million euros.

Newly introduced subsidies and other services are part of the state's promotion of culture and fundamental rights. They are subject to their legitimation through constitutional purposes and must comply with the principle of equal treatment. In addition to the large churches, subsidies and other services in this sense are received by the Old Catholic and Old Lutheran Churches, the Israelite Synagogue Congregation, Free Religious State Congregations and Free Congregations, and in some cases also the Methodists, Jewish congregations, humanistic associations and the Central Council of Jews in Germany .

Replacement of state services

Art. 138 para. 1 WRV contains three different effects. Firstly, the states are obliged to end state services by way of state legislation through replacement. Second, the standard contains a guarantee for the continuation of state services until they are replaced. Third, the establishment of new state services is excluded.

Replacement is the unilateral cancellation of the performance reason for a recurring payment in exchange for one-off compensation. It therefore includes the cancellation of the previous performance relationship with the simultaneous establishment of a compensation obligation.

The term “replacement” must be viewed in the historical context of the Weimar Imperial Constitution , because in 1919 there was a well- established legal usage regarding the “replacement” of rights in the area of public law , which the constitution adopted. As early as the 19th century, “ redemptions ” were used as a legal technical means in the course of the peasants' liberation and to enforce freedom of trade in order to abolish remnants of outdated private and public rights . The value of an unlimited, regular service is to be assessed as a specific one-off compensation payment . A reasonable redemption factor for state benefits is 18.6 times the annual benefit obligation i. S. d. Section 13 (2) of the Assessment Act (BewG).

Bills in 2020

On May 15, 2020, the parliamentary groups of the FDP, Left and Alliance 90 / The Greens presented a joint draft law on a fundamental law to replace state benefits, and on May 28, 2020 the AfD as well. The alliance government services under the old law abolishing criticized the planned high fee payments and long release times.

Prohibition of the introduction of new state services

Through the transfer offer, the re-establishment of state benefits i. S. d. Art. 138 para. 1 WRV excluded. According to the will of the constitution, the legal institution of state services is to be liquidated in order to unbundle the financial relationships between the state and the churches. The only legal permissible is a redesign of the performance obligations that existed before 1919, e.g. B. by generalization or summary.

State services can be based on old titles and then often unwritten or in accordance with customary law, but in recent years they have increasingly been summarized in state church contracts and regulated anew. If the state benefits were introduced as compensation payments for historical secularizations of church assets, value is attached in the respective state-church treaties of the states that this stipulation is not a voluntary subsidy by the state, but rather historical obligations.

Classification

State benefits within the meaning of Article 138, Paragraph 1 WRV are divided into positive and negative state benefits. Positive state benefits actively increase wealth. On the other hand, negative government benefits simply do without reducing assets, as can be the case with tax and fee exemptions.

The positive state benefits include, above all, the endowments , i.e. earmarked contributions to finance church authorities and officials. In the Catholic area one speaks in the first case of diocesan endowments, in Protestant of endowments for the church government. The endowment of office holders mainly includes subsidies for the salaries of pastors . In addition to the endowments, there are also a large number of regionally different forms of positive state benefits, which can consist of monetary as well as benefits in kind (food), use, construction and maintenance obligations. They can be fixed according to the amount or depending on requirements.

Negative state benefits are the exemptions of religious societies from taxes and duties, provided that the exemptions were already in effect when the WRV came into force. In Germany, the churches are a public corporation. a. exempt from corporation tax, trade tax and sales tax.

Origin of state services in Germany

Excerpt from the Prussian budget for 1919

State benefits to churches in the Free State of Mecklenburg-Schwerin in 1919

The payments of state benefits to the churches in Germany have various historical causes in the federal states. They were created in part to compensate for previous expropriations of real estate and goods, from which the churches previously covered their material needs. The state benefits arose in some German regions as a result of the secularization of church property, especially in connection with the Reichsdeputationshauptschluss of 1803. With the secularization of the assets, the new secular rulers, as legal successors, also took over the lifelong maintenance obligations for the previous spiritual rulers and the construction charges for church buildings. Some German states undertook to compensate for annual compensation payments to religious societies (positive state benefits) and / or tax and fee exemptions for religious societies (negative state benefits). The intensity of these expropriations differed from region to region, so that the amount of the resulting state payments also differed. The Protestant regional churches were expropriated mainly during the Reformation , after the Peace of Westphalia in 1648 and at the end of the 18th century. The Catholic Church was also affected by the Peace of Westphalia, but by far the most extensive expropriations occurred through the Organic Articles 1802 for areas on the left bank of the Rhine, annexed by France and through the Reichsdeputationshauptschluss 1803.

In addition to compensation for losses in secularization, there were other reasons for introducing state benefits before 1919. In several countries (e.g. Mecklenburg ) there have been no expropriations of church property since the Reformation. Here the sovereigns took over the state benefits in the form of salary subsidies in order to supplement the insufficient income of their clergy, due to their self-evident duty of care ( cura religionis ).

As a result of the Reichsdeputationshauptschluss alone, approx. 95,000 km² got a new ruler or owner (for comparison: this corresponds to an area of approx. 27% of today's federal territory of 357,050 km²). A large part of this area was the national territory of the dissolved ecclesiastical imperial estates (especially the ecclesiastical electoral principalities, but also monasteries and monasteries). This so-called estate was subordinated to a new ruler without replacement. Only the former ecclesiastical sovereigns were granted a pension appropriate to their position as sovereign. However, these payments ended at the end of the term. The transfer of the rulership did not result in any state benefits still payable today.

The so-called disposable property is to be distinguished from this sovereign property , in which the churches did not lose their state power but their civil law ownership. Today's state services in the narrower sense emerged primarily from these disposable goods. The expropriation of the disposable property created no arbitrarily usable state property , since the confiscation of the church property was carried out by way of universal succession (§ 36 RDHS):

Due to the universal succession, the burdens on the property were also transferred to the new owner, which mainly consisted of maintenance obligations in favor of church institutions. For example, a piece of land could be provided with the obligation that the local pastor had to be supported from its income. This obligation did not expire after the expropriation. Only the obligated owner was a different one, namely the state instead of the church.

Other benefits are compensation payments that the state paid for the expropriation of property belonging to the cathedral churches - even illegal under Section 35 of the Reichsdeputationshauptschluss - instead of returning the property. This results in z. For example, the payments to the Catholic Church in Bavaria, which continue to this day, amount to the remuneration of several leading clergymen.

Finally, according to the regulations on secularization, monastery property was allowed to a. be expropriated for non-profit purposes, which expressly included the worship service (see section 35 of the Reichsdeputationshauptschluss). First and foremost, however, the expropriation served to “ease” state finances, which is also permitted by Section 35.

The replacement of the annual compensation payments with one-off payments was already provided for in the Reichsdeputationshauptschluss.

Overall, it can be said that before the great expropriations of the 18th and 19th centuries, the churches were not dependent on large payments from state tax funds, but managed to get by with the income from their property and tax revenues as the owners of the power of rule. The financing through the transfer of ownership and encumbrance of land was not an ecclesiastical peculiarity. B. was also assigned to the universities land. Secure and permanent financing could not be achieved otherwise. It was only after the churches had expropriated the property and gave up the property that the idea of financing by church members in the form of today's church tax arose.

criticism

State services are often criticized as contradicting the separation of church and state . It is problematized that the two large Christian churches, despite high income from church taxes , receive some of the income and salaries of their bishops , auxiliary bishops , cathedral vicars , priests and pastors financed through state benefits.

Even authors who have a positive view of the churches are calling for the state services to be redeemed, because the historical obligations are no longer understood today and it is thus made easy for opponents to present them as privileges of the churches. "The elimination of the historical state achievements provoking emotions would make the inclusion of religious and ideological communities in the group of recipients of fundamental rights activating state achievements less problematic and 'culture-state activating solutions' easier in a religiously and ideologically neutral state." That the state achievements contrary to the regulation of the Weimar The Reich constitution and the Basic Law have not yet been completely superseded, the reason being that the compensation to be paid in such a case would place an excessive burden on the budgets of the federal states.

For the concrete determination of the transfer fees in the federal states, however, it is not the amount of state benefits that is relevant today, but the amount of state benefits when the Weimar Constitution came into force on August 14, 1919, which u. a. can be found in the respective budget plans of the federal states. In this respect, the amount of the transfer fees of the federal states for the respective religious communities is likely to be significantly lower than sometimes assumed. State benefits make it possible for the proceeds of secularized property to be used in accordance with the will of the historical donors, donors and testators; for these did not originally pass the later secularized values to the state, but deliberately to the church or individual church institutions to promote general or specific tasks. On the other hand, by accepting state services, the church is obliged to implement the purposes prescribed in detail by the founders.

It is controversial whether the required replacement of the state benefits has already been settled by the decades-long annual payments and therefore no one-off payment by the state is required to replace it, since the total amount of the state benefits paid already exceeds the amount of the transfer fees due in 1919 many times over.

An application by the Left Party in the Bundestag with the title “Evaluation of State Services to Churches”, in which the Federal Ministry of Finance should be instructed to calculate the state payments made since 1803, was rejected on March 9, 2017.

The AfD party calls for the state church service to be replaced in its 2017 party program. The FDP has also been calling for the state church service to be replaced for several years . The Bündnis90 / Die Grünen party is also calling for an end to state services. In 2019, the parliamentary group of Bündnis 90 / Die Grünen NRW introduced a motion to replace state services in the state parliament of North Rhine-Westphalia , as requested in the 2017 election manifesto. The federal party also formulated the replacement of state benefits in its election manifesto from 2017

Web links

evangelical
- Information page of the EKD on church finances - state services
Catholic
- German Bishops' Conference: Church Financing - Questions and Answers
- Current explanations on church financing (PDF; 286 kB) - Ansgar Hense, Des. Director of the Institute for State Church Law, statement for the German Bishops' Conference of September 22, 2010
Information portal state services , published by the Humanist Union and the Giordano Bruno Foundation
BAStA - Alliance to abolish state services under old law
Public service media
- Old benefices - tax millions for the churches . Panorama from June 4, 2009.

Individual evidence

↑ www.hpd.de: 100th anniversary of the disregard of the constitutional requirement (from April 5, 2019)

↑ www.idea.de: State services for the churches at record level (from June 5, 2018)

^ Raju Sharma, Jan Korte, Petra Pau, Jens Petermann, Frank Tempel, Halina Wawzyniak, Die Linke parliamentary group in the 17th German Bundestag: Draft of a law on the principles for the replacement of state services to religious societies (State Service Transfer Act - StAblG) (= negotiations of the German Bundestag. BT-Drs. 17/8791 ) . Bundesanzeiger Verlagsgesellschaft mbH, Cologne February 29, 2012, ISSN 0722-8333 .

↑ German Bundestag: Agenda item 7: First discussion of the draft of a law on the principles for the replacement of state services to religious societies (State Service Transfer Act - StAblG) - printed matter 17, submitted by Members Raju Sharma, Jan Korte, Petra Pau, other members and the DIE LINKE parliamentary group / 8791 - . In: German Bundestag. Shorthand report. 225th meeting. Berlin, Thursday, February 28, 2013 (= negotiations of the German Bundestag. Plenary minutes. 17/225). Bundesanzeiger Verlagsgesellschaft mbH, Cologne, ISSN 0722-7980 (formally incorrect ISSN of the template), ISSN 0720-7980 (Authorized ISSN), pp. 28005–28011 and 28175–28178 (online in: Documentation and Information System (DIP) of the German Bundestag) ; German Bundestag ; PDF file ; 2.98 MiB; accessed and received on June 1, 2016).

↑ Answer to a short question from the DIE LINKE parliamentary group on April 9, 2014 (PDF)

↑ Klaus-Berto von Doemming, Rudolf Werner Füsslein, Werner Matz (editor): History of the creation of the articles of the Basic Law. In: Gerhard Leibholz , Hermann von Mangoldt (editor): Yearbook of the public law of the present , new series Volume 1, Tübingen 1951, p. 903 f.

↑ by Klaus-Berto von Doemming, Rudolf Werner Füsslein, Werner Matz (editor): History of the creation of the articles of the Basic Law. In: Gerhard Leibholz, Hermann von Mangoldt (editor): Yearbook of the public law of the present, new series Volume 1, Tübingen 1951, p. 907.

^ Luise Wagner: State achievements. 100 years of state achievements - anniversary of a breach of the constitution. In: humanistische-union.de. February 28, 2019, accessed August 14, 2019 .

↑ [1]

↑ cf. Axel Freiherr von Campenhausen : State Church Law. 3. Edition. Munich 1996, p. 326 u. 330 fn. 21.

↑ Article 2 of the treaty between the Federal Republic of Germany and the Central Council of Jews in Germany

^ Draft of a basic law to replace state benefits BT-Drs. 19/19273 of May 15, 2020.

^ Draft of a law on the principles for the replacement of state services to religious societies (State Service Replacement Act - StAblG) BT-Drs. 19/19649 of May 28, 2020.

^ Diana Siebert: Bill by FDP, Left and Greens jumps far too short - end of state benefits March 13, 2020.

↑ Spiegel online: Debate on savings: State pays 442 million euros for church salaries (from June 8, 2010)

↑ cf. Axel Freiherr von Campenhausen: State Church Law. 3. Edition. Munich 1996, p. 335.

↑ Jörn Ipsen: The state in the middle. Munich 2009, p. 204.

↑ Bundestag.de: Decision recommendation and report of the finance committee (PDF document)

↑ Philosophia-Perennis: Incredibly brave, courageous and long overdue: AfD declares war on church taxes