Munich can not discriminate against a citizen and deny a grant for a pedelec (eBike) based on her “wanting to continue being a member of Scientology”. Therefore, Germany’s Federal Administrative Court [BVerwG.de], confirming a previous decision of the Bavarian Administrative Court, condemns the City for discriminating against a member of Scientology.
The applicant applied for a partial grant to purchase a pedelec (a specific type of electric bike) based on the “Electromobility Funding Guidelines” of Munich. In promoting a more environmentally sustainable way of transport within the city, Munich’s guidelines on electromobility foresaw that autonomous workers could get help to buy an electric bike, and thus set a program to partially fund the purchase of this type of transport if the person would meet certain requisites. One of the requisites was to submit a faith declaration that one would not be a Scientologist or attend Scientology courses, lectures, etc.
When applying for the grant, the German citizen who is an artist did not submit the “Declaration of Protection Concerning the Teachings of L. Ron Hubbard/Scientology” contained in the application form, as considered it was not a lawful requirement. And the court found that denying the subsidy based on that is discriminatory and unlawful interference in the freedom of belief and against the values and right to equal treatment.
Demanding declarations about one’s belief is not a matter for the local municipality
Germany’s Federal Administrative Court – BVerwG 8 C 9.21 – Judgment of 06 April 2022
Munich must now subsidise the woman’s e-bike. “Since all other requirements for the subsidy are fulfilled, the defendant is obliged to grant the plaintiff” the subsidy, the Federal Administrative Court ruled.
According to a statement by Germany’s Federal Administrative Court, a “municipality may not make the granting of a financial subsidy with which environmental policy objectives are pursued subject to the condition that the applicants submit a declaration distancing themselves from the Scientology organization.” This was decided today by the Federal Administrative Court in Leipzig.
The defendant rejected the application with reference to the missing declaration. The Administrative Court dismissed the lawsuit. The Higher Administrative Court obliged the defendant to grant the plaintiff a funding commitment in accordance with her application.
The defendant [City of Munich] rejected the application with reference to the missing declaration. The Administrative Court dismissed the action. The Higher Administrative Court obliged the defendant to grant the plaintiff funding commitment in accordance with her application.
The judgement
The Federal Administrative Court confirmed the appeal judgement.
“The defendant must not make the funding dependent on the submission of the Declaration of Protection. Demanding declarations about one’s belief is not a matter for the local municipality within the meaning of the first sentence of Article 28 (2) of the Basic Law, so that the defendant already lacks competence”.
If such a declaration is demanded and its refusal entails exclusion from funding, this purposefully interferes with the freedom of religion and belief guaranteed by Article 4 (1) and (2) of the Basic Law. The interference is already unconstitutional for lack of a legal basis.
Finally, the defendant’s [City of Munich] approach violates the general principle of equal treatment (Article 3 (1) of the Basic Law). It constitutes an inadmissible differentiation because it does not delimit the group of persons entitled to financial subsidy appropriately, but according to criteria that have no connection with the objective of the financial subsidy. Since all other requirements for funding are fulfilled, the defendant is obliged to grant the plaintiff a corresponding commitment.
International exposure of Germany discriminating against Scientology
Scientologists have been for several years engaging in defending their rights at courts in Germany and also advocating at the OSCE and the UN for their religious freedom to be respected by German authorities.
Last September 2020, Scientology had requested the UN to launch an investigation on Germany for violating religious freedom, and in fact, the Special Rapporteur on FORB Ahmed Shaheed had previously written a letter to the German government inquiring about their practices of discriminating against Scientology. While the Scientologists still have some work to do to get their rights respected by German officials, it seems, said Ivan Arjona to The European Times, that “persistence in court, international exposure and above all, proper abidance to the law and justice system, is paying off to make Germany stop discriminating against Scientology”.
In this regard, the resolution just adopted by the 49th Session of UN Human Rights Council, “A/HRC/49/L.5 Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief” calls on States (and this includes Germany):
- Calls upon all States:
(a) To take effective measures to ensure that public functionaries, in the conduct of their public duties, do not discriminate against individuals on the basis of religion or belief;
(b) To foster religious freedom and pluralism by promoting the ability of members of all religious communities to manifest their religion and to contribute openly and on an equal footing to society;
(c) To encourage the representation and meaningful participation of individuals, irrespective of their religion, in all sectors of society;
(d) To make a strong effort to counter religious profiling, which is understood to be the invidious use of religion as a criterion in conducting questionings, searches and other law enforcement investigative procedures;
Will some of the German authorities continue discriminating against Scientology and others despite the above? This is an open question to be seen.
BVerwG 8 C 9.21 – Judgment of 06 April 2022
Previous instances:
VGH Munich, VGH 4 B 20.3008 – Judgment of 16 June 2021 –
VG München, VG M 31 K 19.203 – Judgment of 28 August 2019
