Neither extraterritoriality questions nor WTO concerns unsettle the CJEU. Animal testing ban applies outside EU.

The last part of this title is a bit of a stretch, apologies: soundbite beats nuance. I reported earlier on the High Court’s referral to the CJEU in the Cosmetics Regulation case, C-592/14 . The Court held last week, 21 September. Much like in C-366/10, the emissions trading /aviation case, the Court was unimpressed with accusations of extraterritoriality (‘territory’ is not discussed in the judgment) and does not even flag WTO concerns (Bobek AG had, and simply suggested this is an issue that solely lies with the WTO itself to resolve).

Referring to the need to interpret the Regulation with a view to its object and purpose, the Court insists that in particular to avoid easy circumvention of the Regulation, data obtained from animal testing carried out outside the EU, cannot be employed for the marketing of cosmetics in the EU, even if those tests had to be performed so as to meet the regulatory requirements of third countries.

Of course in WTO jargon, this recalls the discussion of non-product incorporated production processes and -methods (n-PR PPMs) however the Court is more concerned with regulatory efficiency.

Geert.

Belgian parliamentary watchdog upholds unstunned slaughter, protects Shechita (kosher) and Zabihah (halal).

Update 8 May 2017. Following a botched attempt at reconciliation, Parliament is now debating a ban to enter into force 1 January 2019.

Update 26 October 2016 The Flemish Parliament today voted not to accept the bill – at least for the time being.

Update 28 July 2016 A Brussels Court has referred to the CJEU for interpretation of the EU Regulation, questioning whether the Regulation’s regime may itself be incompatible with the ECHR. Update 16 September 2016 the case number is C-426/16. See here for the questions referred (in Dutch).

The Belgian Council of State, chamber of legislation (in the title I call it a ‘parliamentary watchdog: for that is what it is. By issuing prior opinions on the legality of legislative initiative it guards against illegal Statute) has opined that a private members bill banning unstunned slaughter, does not pass the ECHR test.

A European Regulation (1099/2009) provides for an unclear, and conditional,  exemption for religious (regularly rather offendingly called ‘ritual’) slaughter. 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 slaugther 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.

Religious slaughter falls squarely within the European Convention of Human Rights Article 9’s freedom of religious expression. Hence the Council of State summarily (its conciseness is rather attractive) reviews the ECtHR’s case-law and concludes that the proposed ban would be both unconstitutional and clearly against the provisions of the ECHR.

On the EU Regulation front, I believe the EU rules are more problematic than the Opinion suggests (I have analysis on it forthcoming) however on the ECHR side of things, the Opinion could not be more correct. An outright ban on unstunned slaughter in the name of animal welfare or otherwise would offend freedom of religious expression to such a degree that it simply must not pass.

Geert.

‘Extraterritorial’ application of EU cosmetics Regulation’s ban on animal testing. High Court refers to the ECJ.

Update 17 March 2016 Bobek AG Opined today.

The EU’s cosmetics Regulation prohibits the placing on the market of products tested on laboratory animals. Application of the (criminally enforced) UK implementing regulations, raised questions on the precise scope of the Regulation’s provisions which are aimed at preventing the simple circumvention of the Regulation via production abroad. (Rosalind English has excellent review here). The case at issue concerns the question whether products may incorporate ingredients tested outside the EU, where this testing has been carried out with a view to meeting the product regulation requirements of third States. It is known at the CJEU as Case C-592/14.

The room for circumvention of the EU regime is obvious. The limits to the EU’s territorial reach likewise. International trade law is not at issue in the case however it is clear that the eventual ECJ ruling will feed into WTO et al discussions on so-called ‘non-product incorporated production processes and -methods’.

Similar discussions were at issue in Zuchtvieh-Export, Case C-424/13, on the application of EU rules with respect to animal welfare to transport taking place outside of the EU.

Geert.

EU Seal product ban upheld by the ECJ – (unsubstantiated) Inuit and traders’ arguments fall on deaf ears

Postscript: the ECJ equally dismissed, on 3 October 2013, the Inuit’s action against the basic Regulation: see case C-583/11P.

Postscript 2, 19 March 2015: Kokott AG suggests the appeal against the judgment in the posting below, be equally dismissed.

 

The European Court of Justice has dismissed an application by Inuit community group, Inuit Tapiriit Kanatami (ITK), and the Fur Institute of Canada, for the Commission’s Implementing legislation of the EU’s ‘Seal Pups Regulation‘ [seal products Regulation somehow has not made it into mainstream language] to be held illegal. The Regulation effectively bans all seal products from being placed on the EU market, with limited exceptions, and it does so on the basis of animal welfare considerations:

Article 3 - Conditions for placing on the market
1. The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the time or point of import for imported products.
2. By way of derogation from paragraph 1:
(a) the import of seal products shall also be allowed where it is of an occasional nature and consists exclusively of goods for the personal use of travellers or their families. The nature and quantity of such goods shall not be such as to indicate that they are being imported for commercial reasons;
(b) the placing on the market of seal products shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons.
The application of this paragraph shall not undermine the achievement of the objective of this Regulation. (...)'

Further detail for the application of the exceptions was provided by the Commission in follow-up regulation . It is the follow-up (implementing) Regulation which was the subject of current action. The applicants in this case argued as follows:

1. The basic Regulation lacks legal basis (i.e. Heads of power), for it was adopted on the basis of the Internal Market article of the EU Treaties, while in fact it was animal welfare considerations which led to the initiative. The Court disagreed: Member States had differing regulations in place with respect to seal products, or were planning them. This threatened a clear EU view on the matter and hence disruption of that internal market, whence justifying Article 114 TFEU (at the time: Article 95 EC). Watertight conclusion under EU law – even if paradoxically in order to safeguard the Internal Market, the EU effectively resorted to scrapping that very market.

2. Failing argument 1, the Regulation at any rate is disproportionate and incompatible with the principle of subsidiarity. The latter was dismissed on similar grounds as the review of the legal basis, referred to above. The former seems to have not been helped by the vagueness of the claims of applicants. In particular, they had put forward the view that the Inuit exemption is dead letter, for the communities concerned have to rely on commercial outlets to market their products, not having any such outlets themselves. The Court rejected this argument as too vague and unsubstantiated. It also rejected labelling (testifying to the killing having been done ‘humanely’) as an alternative, for the feasibility of such an option was examined and rejected in the run-up to the legislation.

3. Human rights. Right to property arguments were rejected by the Court, for viz the Inuit, they could still trade in the products concerned and the Court had already established that the ‘dead letter’ argument was unsubstantiated. Viz the applicants which are commercial operations, the Court referred to its earlier case-law the guarantees accorded by the right to property cannot be extended to protect mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity.

4. Ultra vires. The arguments that the Commission implementing Regulation exceeded what the Commission was entitled to regulate, in particular, that its enforcement measures were such as to make trade in Inuit seal products effectively impossible, even if it was instructed to lay down rules leading to a viable Inuit trade, were swiftly rejected by the Court. Again, it referred to a complete lack of data in the file substantiating the claim that all such trade would effectively be impossible.

The actions at the ECJ cannot of course be seen completely detached from the ongoing litigation against the EU over at the World Trade Organisation, on which Robert Howse has posted near-complete records of the hearings which this week finished in Geneva: that Panel report is one to look forward to (although judging by the sounds coming out of Geneva, the Panel would not exactly seem on top of things).

Geert.