Under German law, the Roman Catholic Church (with about 23.7 million members) and the Evangelische Kirche in Deutschland (EKD, with about 22.2 million members) have the status of public-law entities and are entitled to levy a church tax and/or fee – Kirchensteuer – on their members. (There are similar arrangements in Austria, Denmark, Finland, Iceland and some cantons of Switzerland.) The status of Churches and religious societies is governed mainly by Articles 137 to 141 (the “Church Articles” – Kirchenartikel) of the Weimar Constitution of 11 August 1919 as incorporated into the Basic Law by Article 140.
Historically, the church tax has been 8 or 9 percent of income tax liability and the only way to avoid it is formally to leave your Church: Kirchenaustritt. But by doing so, you lose your right to a church wedding or burial and if you are employed by a church organisation you may well be sacked – and, taken together, the Roman Catholic Church and the EKD are the second-largest employer after the Federal Government and the Länder.
The applicants complained that, when such taxes or fees were calculated and levied on the basis of the joint income of both the applicants and their spouses, it violated their Article 9 right to freedom of religion.
The operation of the church tax
Unsurprisingly, the operation of the church tax/church fee is complicated:
- Where spouses are members of different Churches entitled to levy taxes and they have opted for a joint income tax assessment, both Churches levy the tax on the spouses in the form of an additional levy on the income tax of both spouses. The amount of each spouse’s church tax is calculated on the basis of half of the declared income tax .
- Where only one spouse belongs to a Church entitled to levy taxes, the Church entitled to the tax levies it in accordance with that person’s tax assessment, calculating the tax on the basis of the income tax attributable to the spouse liable to pay tax rather than on the basis of that spouse’s share of the total income. If the spouse belonging to a Church has no income under the Income Tax Code, the church tax cannot be levied, In that case, in some Länder, “the church entitled to levy taxes charges its members a special “church fee” – besonderes Kirchgeld – of about one-third of the relevant church tax. Although called a fee, the levy is, however, treated legally as a tax .
- Churches only levy the special church fee if spouses decide on a joint income tax assessment. The special church fee is not levied if spouses make separate tax returns .
- If spouses decide on a joint income tax assessment, they submit a tax declaration. In most Länder (except Bavaria), the tax authorities set the special church fee according to the calculation regulations of each Church. The basis of calculation is the church member’s living expenses calculated on the basis of the spouses’ joint income. The special church fee is only levied on the spouse who is a Church member. The remaining tax liability is applied to both spouses 
- If a tax authority’s income tax calculation leads to a reimbursement for the spouse not being a member of a church and who is liable to pay income tax, only that spouse will be credited with it. At the same time, the special church fee levied on one spouse can be offset against any tax reimbursement due to the other spouse. If the calculation of the income tax leads to a demand to pay more tax, offsetting cannot take place .
- Either spouse can file an objection against that part of the tax bill which applies to them. If the special church fee has been offset against a tax reimbursement due to the spouse who is not a member of a church that spouse can apply for a settlement notice in accordance with Article 218 of the Fiscal Code and thus have the possibility to be repaid the offset amount .
In Klein and Others v Germany  ECHR 327, the applicants variously complained of:
- being obliged to pay for their spouse’s church fee when they themselves were not a member of the Church in question;
- needing financial assistance from their spouse to pay their church fee, making them dependent on their spouse for their freedom of religion; and
- being obliged to pay an unfairly high church tax.
Relying on Article 14 (discrimination) in conjunction with Article 9, they also argued that the taxes or fees were discriminatory, either on the basis that there had been a difference in treatment between couples in their own situation and couples with different religious affiliations or because the fees discriminated unfairly against women.
The Fifth Section ECtHR declared the complaint of the first applicant, Mr Klein (application no. 10138/11), concerning Article 9 admissible and the remainder of his complaints and the applications of the second, third, fourth and fifth applicants inadmissible; however, it held, unanimously, that there had been no violation of Article 9.
In Mr Klein’s case, the Court noted that the special church fee which had been levied on his wife had been subtracted directly from his tax refund claim by way of an offset. That had been an automatic consequence of the spouses’ decision for a joint tax assessment. The legislation had therefore subjected Mr Klein to his wife’s financial obligations towards her church without himself being a member of it and there had indeed been an interference with the negative aspect of Mr KIein’s rights under Article 9 . However, that interference had been prescribed by law  and had pursued a legitimate aim: to guarantee the rights of Churches and religious communities to levy church taxes .
The remaining question was whether the interference had been necessary in a democratic society. The Court observed, first, that the couple’s choice of a joint tax assessment not only had consequences for the calculation of their overall tax but also for the administration of the tax claims against them, which were put together in one document and which allowed the tax authorities to offset Mrs Klein’s special church fee against Mr Klein’s tax reimbursement claim . Insofar as the Government argued that the Kleins’ decision to file a joint assessment had led to a net reduction in Mr Klein’s tax – in spite of the offsetting – the Court noted that the reduction did not remove the link between the Kleins’ choice, on financial grounds, of joint assessment and the possibility of offsetting . That link had, however, to be seen in the context of the domestic tax system as a whole .
In that connexion, the Court noted that the offsetting had not led to an irreversible financial loss to Mr Klein because he could have applied to undo it by using a settlement notice under Article 218 of the Fiscal Code – so it appeared that he could have removed the interference with his freedom of religion by his own action .
When balancing Mr Klein’s right to negative freedom of religion against the public interest in the efficient collection of church taxes, the Court had to take into account the burden put on Mr Klein by the offsetting procedure . It had been the Kleins’ own decision to make a joint tax declaration that had led to the two separate tax claims being handled together – which in turn had obliged the State to engage in a more complex assessment involving offsetting. Therefore, the offsetting was an administrative mechanism triggered by the couple’s own actions that could have been undone by them by filing a settlement notice . There was no evidence to suggest that applying for a settlement notice would have caused Mr Klein any financial burden, taken up much of his time or entailed any further consequences . Furthermore, though he had complained that the tax bill contained no information on available remedies for the offsetting, the Convention did not guarantee the right to be informed of domestic remedies . In the circumstances, the Court held that the possibility of applying for a settlement notice could be regarded as a counterbalancing factor in the case .
In the circumstances, and taking into account the wide margin of appreciation left to states parties on matters of Church-State relations, the Court concluded that the Government had produced relevant and sufficient reasons to justify the interference with Mr Klein’s freedom of religion . There had therefore been no violation of Article 9 .