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Canonical Mandate and Working at a University through the Prism of the Court Practice of the European Court of Human Rights

Presentation by Tomislav Sadrić, Mag. iur.

            The institutional separation of the Church and the State neither prevents nor precludes the numerous situations in which the secular and the ecclesiastical meet, and sometimes even complement one another. Such encounters routinely occur also at a large number of public universities in Europe, where there are study programmes and courses in theology and the Church. Those universities have all the typical properties of the public and are entirely subjected to the civil legal order. However, in relation to their theological components, the requirements of canon law with regard to their particular status and personal issues are also taken into account. Such a coexistence of two legal regimes (civil and canon law), which sometimes also leads to their intertwining, creates the need to find specific, carefully nuanced solutions through which the requirements of both legal regimes might be harmonised and satisfied.

            The canonical mandate, understood within the sense of the directive by the ecclesiastical authority pursuant to canon 812 of the Code of Canon Law, is an important basis for the teaching status for theological courses at universities. As the canon provides for, those who teach theological disciplines in any institutes of higher studies whatsoever must have a mandate from the competent ecclesiastical authority. Such a requirement for a mandate from the perspective of the competent ecclesiastical authority is understandable because it, among other things, ensures the necessary level of the credibility of lecturers who teach theological courses. In that sense, during its issuing, the mandate (during the establishment of the academic relationship for the purpose of which the mandate is being issued) is not disputed from the aspect of civil law either, which perceives it only as an additional formal prerequisite to be met for the purpose of employment or similar relationship. Issues are raised further down the line, when due to the emergence of certain facts or conditions, the canon law prerequisites for a revocation of a lecturer’s mandate are met. Such a revocation of the mandate, which occurs within the canon law regime, leads directly to the loss of the necessary prerequisites for the continuation of the employment relationship in the civil law regime. This is a significant, but essentially final consequence of certain circumstances, to which the civil law regime normally would not pay any attention, but which in such a particular case may lead to a complete cessation of rights stemming from the employment relationship.

            The potentially drastic consequences of the loss of the canonical mandate in the civil sphere are a demanding and challenging topic for the highest national and supranational courts, particularly in those cases where the mandate is lost due to circumstances the civil law regime deems insufficient to be the basis for a different treatment of an individual. In such cases, civil courts attempt to find an approach that reconciles the different fundamental values of the civil law regimes in a satisfactory manner, such as the freedom of religion and prohibition of discrimination. In that context, the court practice of the European Court of Human Rights is of particular interest. The ECHR has in numerous cases assessed the harmonisation of the consequences of the loss of the canonical mandate with the rights enshrined in the Convention. The presentation will provide an overview of the most relevant cases and positions of the Court on these matters, with a particular emphasis on the application of such positions in the university context. Furthermore, such situations will be examined in a wider context than the canonical mandate for teaching theological courses, having regard to the rest of the provisions of the Code of Canon Law connected with the characteristics of lecturers as well as the potential consequences of the position taken by the Supreme Court of the United States of America in the recent court case Bostock v. Clayton County.

Key words: canonical mandate, canon law, freedom of religion, university, European Court of Human Rights