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2007-05-16 - Council of State, Fabrique d’église des Saints Jean et Étienne aux minimes, n. 171268

State support · Belgium · Place of worship · Religious heritage

Some public architectural requirements within an historical church building may be legally considered as compatible with Church autonomy

Key facts of the case - A Church Council (Fabrique d’Église) starts work of transformation of the Church’s choir, replacing the wooden platform by a brickwork platform, without the required authorisation of the competent State authority, as it is a listed building. The competent State authority refuses to grant the authorisation, as the work is contrary to its rules applied to all churches’ modification (light and movable platforms only) and suggests, as a solution, that the Church Council proposes another plan of work compatible with the applied rules.
The Fabric refuses to modify its work because it considers that, among others, it is a necessary change for the liturgy as required by Vatican II and the State interference in Church’s affair concerning the necessity of adapting the church’s building to liturgy requirement is contrary to freedom of the religious, especially the autonomy of organisation of churches (the priest decides for the parish and the bishop for the bishopric), and to the separation of Church and State. The Fabric and the competent authorities could not agree; and no authorisation is granted. The Fabric appealed to the Council of State.

Main reasoning of the Court - The freedom of internal organisation of Churches hinders the state to get involved in Church’s doctrine or discipline but does not hinder the state to get involved in material interests of the religion (among others authorisations for work in the listed Church buildings). It is not clear how the construction choice imposed by the competent state authority could be a hindrance to the liturgy’s requirement (as it is similar with the previous platform used during thirty years).
The freedom to worship cannot be infringed because of the simple fact that a state decision does not authorise a layout that meets with the preference of the minister of religion that believes that such layout is better for the liturgy. The appeal is rejected.