Op-Ed: “Animal welfare trumping religious freedom in the context of ritual slaughter: The CJEU’s judgment Centraal Israëlitisch Consistorie van België and Others” by Marcella Ferri and Nicole Lazzerini
In the Grand Chamber’s judgment in Centraal Israëlitisch Consistorie van België and Others (C-336/19), the Court of Justice (the ‘Court’ or CJEU) held that EU law does not preclude Member States from requiring the use, in the context of ritual slaughter, of a reversible stunning procedure which cannot cause the animal’s death.
The case, which was referred by the Belgian Constitutional Court (see the order here), offers some food for thought on the complex balancing between animal welfare and religious freedom, as well as on the scope of application of the Charter of Fundamental Rights (the ‘Charter’) and its relationship with the European Convention on Human Rights (ECHR).
In July 2017, the Flemish Region adopted a decree amending the Belgian law on the protection and welfare of animals of 1986. Whilst the Law allows a derogation from the general rule of prior stunning in case of ritual slaughter, the decree introduces a general ban on slaughter without stunning. It also stipulates that, in case of ritual slaughter, the stunning procedure must be reversible and must not cause the animal’s death. Some associations representing Jewish and Muslim believers thus initiated constitutional proceedings for the annulment of the decree.
The Constitutional Court was presented with contrasting interpretations of the EU Animal Welfare Regulation 1099/2009 (Regulation). According to its Article 4(1), ‘animals shall only be killed after stunning’. However, Article 4(4) stipulates that the prior stunning requirement ‘shall not apply [in case of ritual slaughter] provided that the slaughter takes place in a slaughterhouse’. Furthermore, Article 26(2), first paragraph states, at point c), that ‘Member States may adopt national rules aimed at ensuring more extensive protection of animals at the time of killing than those in this Regulation in relation to (…) the slaughtering and related operations of animals in accordance with Article 4(4)’.
In the applicants’ view, Article 4(4) would be deprived of any meaningful sense if a Member State could rely on Article 26(2) to impose prior stunning in ritual slaughter. Conversely, the intervening Flemish and Walloon Governments contended that Article 26(2) expressly empowers a Member State to depart from Article 4(4). The Constitutional Court thus decided to ask the CJEU about the interpretation of Article 26(2); it also questioned the validity of that provision against the right to manifest one’s religion under Article 10(1) of the Charter of Fundamental Rights, had the CJEU upheld the interveners’ reading.
The (radically) diverging positions of the Advocate General and the Court
The CJEU had already dealt with the EU Animal Welfare Regulation on two occasions. In Liga van Moskeeën (C-426/16), it upheld the validity of the condition that ritual slaughter must take place in a slaughterhouse, whereas in Oeuvre d’assistance aux bêtes d’abattoirs (C-497/17), it denied the possibility to place the EU Organic logo on products derived from animals that have been slaughtered without prior stunning in accordance with religious prescriptions.
The case under discussion gave the CJEU the occasion to deal, for the first time, with the relationship between Articles 4(4) and 26(2) of the Regulation, which touches on a field where different sensitivities exist (see recital 18 of the Regulation). The radically diverging interpretative paths and solutions endorsed by the Advocate General (AG) Hogan and the Court highlight the complexity of the (issues behind the) case.
In his Opinion, the AG regarded Article 4(4) as the expression of the EU’s commitment to respect religious freedom as enshrined in Article 10(1) of Charter. Consequently, he suggested reading Article 4(4) as obliging the Member States to permit ritual slaughter without prior stunning. In turn, Article 26(2) should be read, in his view, as permitting Member States to introduce stricter technical requirements for ritual slaughter (such as the presence of a qualified veterinarian or the characteristics of the knife used), in addition to the slaughterhouse conditions. By contrast, Article 26(2) cannot be read as allowing the Member States to prohibit ritual slaughter without prior stunning, as this would nullify the rationale behind Article 4(4).
Departing from the AG’s suggestion, the Court regarded Article 4(4) as removing the requirement of prior stunning in the case of ritual slaughter performed in a slaughterhouse, without, however, imposing an obligation to allow ritual slaughter. In fact, it observed that, according to Article 2(b) of the Regulation, the ‘related operations’ referred to by Article 26(2) include ‘stunning’. Thus, it interpreted Article 26(2) as granting the Member States the power to prohibit ritual slaughter without prior stunning.
We find the Court’s reading of Article 4(4) and the AG’s interpretation of Article 26(2) more convincing. Having regard to the vertical division of competences, the reconciliation between animal welfare and religious freedom could perhaps be achieved by interpreting Article 4(4) as leaving to Member States the decision whether to prohibit or allow ritual slaughter. Those choosing the second option could then introduce or maintain, thanks to Article 26(2), additional requirements to the slaughterhouse condition, different from prior stunning.
The interpretative path followed by the Court implies that a Member State’s choice to prohibit ritual slaughter constitutes implementation of EU law within the meaning of Article 51(1) of the Charter (paragraph 49). Consequently, the heart of the Court’s reasoning was the assessment of the proportionality of the limitation that national legislation such as the decree at issue entails on the right to manifest one’s religion under Article 10(1) of the Charter.
Incidentally, one can note that the Court, in the Grand Chamber’s judgment in TSN (C-609/17), considered national legislation going beyond the threshold set by a minimum harmonisation directive as falling, in principle, outside the scope of the Charter. It seems that, almost seven years after Åkerberg Fransson (C-617/10), the interpretation of Article 51(1) of the Charter continues to be an issue for discussion.
The assessment of the proportionality of the interference with religious freedom
After recalling that Article 10(1) of the Charter corresponds to Article 9 ECHR, the Court’s performed the proportionality test in the light of ‘Article 52(1) and (3) of the Charter, read in conjunction with Article 13 TFEU’ (paragraph 59). Three elements of the Court’s reasoning deserve special attention.
Firstly, this is one of the few decisions in which the Court engaged with the (opaque) condition of the respect of the essence of the right. It excluded a breach noting that the contested decree only interferes with ‘one aspect’ of ritual slaughter and does not ban slaughter as such (paragraph 61). Remarkably, the AG had expressed the opposite view in his Opinion (paragraph 75).
Secondly, the Court considered the protection of animal welfare as an ‘objective of general interest recognised by the Union’ (paragraph 75) which can validly justify limitations to the freedom of religion. Now, Article 9(2) of the European Convention on Human Rights (ECHR) refers to limitations ‘in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. One may wonder whether the combined reference to paragraphs 1 and 3 of Article 52 of the Charter has the purpose of extending the set of limitations allowed under the ECHR, in order to take account of the specific objectives pursued by the EU and preserving its autonomy.
Interestingly, the Court, borrowing from the vocabulary of the European Court of Human Rights (ECtHR), referred to the Charter as ‘a living instrument’, which must be interpreted having regard to ‘changes in values and ideas, both in terms of society and legislation, in the Member States’ (paragraph 77). In the Court’s view, the current societal and legislative context is characterised by ‘an increasing awareness of animal welfare’ and this ‘help[s] to justify the proportionality of legislation such as that at issue’ (paragraphs 79 and 77).
Thirdly, the Court performed the balancing test between Article 13 TFEU and Article 10(1) of the Charter in the light of the margin of appreciation doctrine as elaborated by the ECtHR, which entrusts national authorities with a broad discretion in relation to particularly sensitive issues. In the Court’s view, the Flemish decree does not exceed the ‘certain level of subsidiarity’ left to the Member States by the Regulation, because scientific evidence proves that prior stunning is the best means to safeguard animal welfare during slaughter.
Animal welfare and the protection of consumers’ confidence
The emphasis put on the increasing awareness on animal welfare is even more remarkable given that the Court did not refer to the need to protect consumers’ confidence. This is not absent from the Regulation, recital 4 of which recalls that the protection of animal welfare during slaughter is deeply linked with consumers’ attitudes towards animal products.
However, the principle of consumer confidence would have not affected, but rather supported, the CJEU’s conclusion. Some consumers might not wish to eat or use products derived from animals killed without prior stunning due to their own ethical and moral beliefs, which may also find protection under Article 10(1) of the Charter.
In its 2020 Communication A Farm to Fork Strategy, the Commission announced that it will ‘consider options for animal welfare labelling to better transmit value’. On 7 December 2020, the Council approved its Conclusions on an EU-wide animal welfare label, in which it invited the Commission to assess the impact of an EU regulatory framework defining an ‘animal welfare labelling scheme’ which would not only ensure a better protection of animal welfare, but also improve market transparency enabling consumers to make an informed choice. These are very concrete signs of the evolving societal and legislative context referred to by the Court.
Marcella Ferri and Nicole Lazzerini are, respectively, Post-doctoral research fellow of European Union Law and Assistant Professor of European Union Law at the University of Florence, Department of Legal Sciences.