Archive for category Trade law
A post suited to be this year’s last, given the religious context of the current holiday period: Wahl AG advised late November in C-426/16. See my previous posts on the issue. A European Regulation (1099/2009) provides for an unclear, and conditional, exemption from a requirement of stunning animals for religious slaughter. (Regularly the practise is also called ‘ritual’; including in current Opinion. ‘Religious’ must be the preferred term).
Practised in particular by the Jewish (Shechita; leading to ‘kosher’ meat) and Muslim (Zabihah; with halal meat) faith, a core aspect of the practice is that animals are not stunned prior to slaughter. The science on the effect of stunned or unstunned slaughter is equivocal. What is certain is that neither stunned nor unstunned slaughter, when carried out incorrectly (well documented in the case of stunned slaughter) aids the welfare of the animal.
The Flemish Minister responsible for animal welfare announced that, from 2015 onwards, he would no longer issue approvals for temporary slaughter plants at which religious slaughtering could be practised during the Islamic Feast of the Sacrifice because such approvals in his view were contrary to EU legislation, in particular the provisions of Regulation 1099/2009. The muslim community objects to the discontinuation of temporary slaughter plants.
The Advocate-General’s Opinion is lengthy, and there is a lot to chew on. There is little point in rehashing all the AG’s points: readers are best referred to the Opinion itself. Of note however is
- Firstly, the AG’s attempt strictly to delineate the issue.
The case he suggests is simply about what material conditions, in terms of equipment and operating obligations, must accompany unstunned slaughter in order for it to comply with the relevant EU rules. He suggests a rephrasing of the referring court’s questions in that direction. Along these lines he also in substance refuses to entertain the questions as to the validity of Regulation 1099/2009 itself, or the exemption from the duty to use approved slaughterhouses under the Regulation’s ‘cultural’ exception. (See footnote 13). In my view the Regulation is very vulnerable on this issue: sporting and cultural events are entirely excluded from its scope of application; religious rites are subject to a qualified exemption. That to me cannot survive a discrimination test.
The Brussels court had given the case a much wider scope: it suggested that the contested Flemish decision creates a limitation on the exercise of freedom of religion and undermines Belgian customs relating to religious rites, since it obliges Muslims to perform the ritual slaughter of the Islamic Feast of the Sacrifice in slaughterhouses that have been approved in accordance with Regulation No 853/2004. In the opinion of that court, this limitation is neither relevant nor proportionate in order to attain the legitimate objective of protecting the welfare of animals and human health (at 20). The AG however sees no limitation of freedom of religion at all, resulting from the general obligation to use approved slaughterhouses.
- Despite the attempt at delineation, the background to the case is undeniable and filters through in the Opinion.
If only because the AG has to complete the analysis should the CJEU disagree with his view that freedom of religion is not being limited, he does review the legality of a total ban on slaughtering other than in plants that have been approved in accordance with the rules established in Annex III to Regulation No 853/2004.
First of all he refers to European Commission audits of the previously approved temporary slaughterhouses to make the point that they protected animal welfare sufficiently. He directly criticises the Regulation for its arguably disproportionate criteria in this respect: see in particular at 127.
Religious slaughter falls squarely within the European Convention of Human Rights Article 9’s freedom of religious expression. It is clear that the AG believes that the ban on unstunned slaughter other than in approved abattoirs, in the name of animal welfare or otherwise, offends freedom of religious expression to such a degree that it simply must not pass: para 133 and the preceding argumentation is very clear.
The AG’s reasoning holds all the more for a total ban un unstunned slaughter full stop. That is the clear implication of this Opinion and one which must be welcomed.
Guten Rutsch ins neue Jahr!
This posting is really addressed to those with more of a full-time interest in competition law than yours truly. Particularly in the extraterritorial effect of same. In  EWHC 2420 (Ch) Emerald Supplies et al v British Airways defendants contend that as a matter of law there can be no claim for damages arising from the cartel at issue insofar as it affected freight charges between the EU and third countries on flights before 1 May 2004. That was the date on which air transport between the EU and third countries was brought within the regime implementing the EU competition rules set out in Regulation 1/2003.
Rose J after careful analysis sides with the defendants and rejects reference to the CJEU, citing acte clair (enough analysis of the CJEU on the same and related issues- I believe she is right). Happy reading.
Hang on a minute. Were not the EU and its Member States supposed to be precaution obsessed? Don’t the EU and its Member States alike adopt bans on all things GMO for no other reason than that they simply do not want them? How then can the CJEU hold in C-111/16 Fidenato that Member States do not have the option of adopting, in accordance with Article 54 of Regulation 178/2002, the EU’s general food safety law, interim emergency measures solely on the basis of the precautionary principle?
The reason lies in pre-emption, aka exhaustion, and in the balance between EU and national risk management which EU law strikes in the specific field of GM cultivation. Of note is that in the meantime most biotech companies have given up on cultivation of GM varieties in the EU.
As extremely well summarised by Bobek AG in his Opinion in the case, the formulation of the relevant EU legislation is such as to provide that post EU authorisation (here: of genetically modified maize MON 810) Member States may only take emergency measures where the continued cultivation of the approved products is ‘likely to constitute a serious risk’. While the precautionary principle may play its role fully at the level of the EU’s risk management preceding authorisation, and indeed post such authorisation, too, Member States are given less leeway in their national emergency measures. In prescribing these rules, the EU safeguards the harmonised approach to the GM varieties at issue.
(Mr Fidenato nb is something of a cause celebre among the GM community). Please note, again, that the case concerns the growing (‘cultivation’) of GM crops. Not the import, export or use of products containing GM.
Finally it is important to point out that the Court does not equate precaution with the absence of science. It is the degree of scientific certainty here which is relevant, not the absence ‘v’ presence thereof.
The Belgian Council of State (the highest administrative court) has annulled the Flemish waste agency’s export permit in the so-called ‘Slufter’ case, involving large quantities of toxic dredging spoil (for the aficionados: classified as EURAL 17 05 05*; ia with heavy doses of tributyltin – TBT) dredged from the port of Antwerp. The case made by applicants was that the waste would be disposed of in the port of Rotterdam’s ‘slufter’ by way of mere dumping, as opposed to processing ‘at home’ in the Flemish region.
At issue was Article 11 of the Waste shipments Regulation 1013/2006, which allows Member States of export to object to planned shipments of waste destined for disposal. Applicants’ case was that the Flemish waste agency – OVAM should have disallowed the shipment on the basis of the proximity and the self-sufficiency principles. OVAM however pointed out that even if in optimal circumstances, processing in Flanders could lead to higher rates of recovery of the waste, much of it would still simply have to be landfilled. Importantly, it preferred disposal in the Slufter on the basis that the logistics chain was much shorter: load up, transport, dump. As opposed to load up, transport to processing facility for partial recovery (involving three separate processes); load-up of the solid waste left; transport and dump.
The Council of State ruled at the end of May that this decision by OVAM, in particular the reliance of the extent of the logistics chain, lacks proper assessment of the Best Available Technologies for dredging spoil, hence leading to insufficient assessment of the proximity and self-sufficiency principles. The ruling is relevant also with a view to the remainder of the spoil that will continue to be dredged.
For easy of reference (for those wishing to locate copy of the ruling): case numbers are 238220 -238224 included).
Thank you Jonathan Cocker for flagging Ontario’s stakeholder consultation on renewable fuel standards, aka biofuels. Current thinking, outlined in the discussion paper, is to make the standards ‘performance based’: ie without pushing one or rather additive and exclusively focus on achieved (documented) reduction of greenhouse gas emissions.
Biofuels are known to create international trade tension. Argentina and the EU are still formally in consultation over the EU’s approach. Various WTO dispute settlement concerns anti-dumping duties on biofuels. Finally one or two elements of WTO dispute settlement on support for renewable energy touch upon fuel standards.
With all that in mind one particular element of the Ontario regime caught my attention: the intention to regulate GHG emissions ‘well to wheel’: ie ‘to assess emissions performance across the fuel’s full well-to-wheel lifecycle, from extraction to processing, distribution and end-use combustion.’(p.6). Canada does that already for diesel, with its 2014 greener diesel Regulation, employing what is known as the ‘GHGenius’ model.
What I have not been able to gauge from my admittedly limited research into that model: does it at all and if so how, apply to particularly extraction outside of Canada indeed outside Ontario? For the EU, much of the biofuel production (let alone biofuel imports) at some point or another involves extra-EU elements. How does a well to wheel method in such case work under WTO rules?