The ECtHR, the CJEU, and the Protection of Religious Minorities: A Mixed Scorecard

The protection of human rights historically got a major impulse from measures aimed to protect particular, often religious, minorities. To what extent does the interpretation and application of human rights still reflect this minority protection rationale? In Europe, two major European courts deserve special attention in this respect. The European Court of Human Rights (ECtHR) may be the European human rights court par excellence, it is well known that the Court of Justice of the European Union (CJEU) has also developed an ever-growing human rights jurisprudence. The ECHR and the ECtHR jurisprudence remains a reference point for the CJEU, as was confirmed in the Charter of Fundamental Rights of the European Union. Nevertheless, the latter Charter and several equality directives also include provisions going beyond the ECHR, thus providing possibilities for distinct lines of jurisprudence. Several lines of jurisprudence of both courts reflect a minority protection rationale, going to the positive side of their scorecard. However, this chapter will show how and to what extent their respective case law gets an overall mixed scorecard regarding the protection of religious minorities. Particular attention will be had for the ECtHR’s jurisprudence on the ‘broad’ margin of appreciation for states concerning ‘church- state relations’, which tends to go hand in hand with a reduced level of scrutiny, and the degree to which the CJEU has also adopted this line of reasoning. By way of conclusion, and noting that both ECtHR and CJEU have de facto increased their scrutiny in regard to certain religion-state matters, both Courts are urged to more systematically increase the level of scrutiny they adopt, thus providing a more robust protection of the fundamental rights of religious minorities.