Posts Tagged Belgium

Unstunned slaughter. Belgian ban goes up to the CJEU for final (?) test on compatibiliy with freedom of religious expression.

Update 29 April 2019 I bumped into the amicus brief of the Becket Fund for Religious Liberty, in the New Zealand case which raised similar issues, here.

I have of course posted regularly on the issues of unstunned slaughter, freedom of religious expression and animal welfare (search tag ‘shechita’ should pull out the relevant postings). The Belgian Constitutional court, to the expectations I assume of counsel in the case, yesterday referred to the CJEU for preliminary reference (cases 52 and 53/2019).

The subject of the litigation is the Flemish decree banning unstunned slaughter outright (for standing reasons the similar Walloon regime is no longer sub judice). The Belgian court requests the CJEU to clarify its judgment in C-426/16, on which I reported here,

Q1: does Regulation 1099/2009 allow Member States to introduce an outright ban; Q2 in the affirmative, is that compatible with the Charter’s right to religious expression; Q3 in the event of an affirmative answer to Q1: the elephant in the Regulation’s room which I flagged years back: is it not discriminatory to allow Member States to restrict religious slaughter, while simply exempting hunting, fishing and ‘sporting and cultural events’ from the Regulation altogether.

Readers will know my answer to these questions.

Geert.

 

 

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Unstunned slaughter and organic labelling. CJEU gets it wrong on Shechita (kosjer) and zabihah (halal).

“Laws are like sausages, it is better not to see them being made” is a quote widely attributed to German statesman Otto von Bismarck. It is not a wise perception. If, like laws,  we want sausages, then it is paramount we see how they are made, starting from the rearing of the animal, via the transport to and processing in abattoirs, through to food processing.

In Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs the Court held that the particular methods of slaughter prescribed by religious rites that are carried out without pre-stunning and that are permitted by Article 4(4) of Regulation No 1099/2009 (on which more here) are not tantamount, in terms of ensuring a high level of animal welfare at the time of killing, to slaughter with pre-stunning which is, in principle, required by Article 4(1) of that regulation. No organic label under Council Regulation 834/2007 and Commission implementing Regulation 889/2008 may therefore be attached to said meat.

The AG had opined the matter is outside the scope of harmonisation of the organic labelling rules. The CJEU however essentially employs Regulation 1099/2009 as a conjoined piece of law and holds that organic labelling must not be assigned to meat originating from animals unstunned prior to slaughter.

The Court is wrong.

At 41 the Court itself acknowledges that ‘no provision of Regulation No 834/2007 or Regulation No 889/2008 expressly defines the method or methods for the slaughtering of animals that are most appropriate to minimise animal suffering and, consequently, to give concrete expression to the objective of ensuring a high level of animal welfare’.

At 47, the Court refers to Wahl AG’s statement in para 43 of his opinion, suggesting the AG ‘ stated, in essence, in point 43 of his Opinion, scientific studies have shown that pre-stunning is the technique that compromises animal welfare the least at the time of killing.’

What the AG actually said is ‘In the first place, it seems to me to be accepted that, while every killing is problematic from the viewpoint of animal welfare, the use of pre-stunning methods when animals are slaughtered may, at least in theory, and as a considerable number of scientific studies show, [FN omitted, GAVC] help to minimise that suffering when those methods are used in the proper conditions. that unstunned slaughter, properly carried out, meets with the ethos of organic farming.’ (emphasis added).

The AG in footnote refers to 2 studies in particular (he suggests there are more). Other studies show the exact opposite. Yet the wider relevance of what he opined lies in the ‘slaughter in the books’ admission. ‘In theory at least’ a perfectly carried out pre-slaughter stun minimises pain. That is very much the same with a perfectly carried out shechita or zabihah incision, particularly where it is carried out with the religiously-inspired stewardship ethos in mind.

In practice, pre-stunning goes horribly wrong in a considerable amount of cases for small and large animals alike. I am not the only one to have witnessed that. And as frequently occurring footage of abattoirs shows, there is little respect for animal welfare in commercial abattoirs, regardless of an eventual stun or not.

Of wider relevance in my view therefore is the problematic enforcement by certification bodies of generally formulated standards  – admittedly not an issue that may be solved by a court case.

Consider Wahl AG’s point made at 45 of his Opinion: ‘the certification ‘halal’ says very little about the slaughtering method actually employed.’ That is exactly the same for pre-stunning. The EU but more particularly its Member States and regions (which given subsidiarity ought to have a big say in this) will not achieve animal welfare if they do not properly address the wider relationship between food professional and animal, between upscale agro-industry and mass meat production.

Finally and evidently, this case is of no consequence to the acceptability of unstunned slaughter from the point of view of expression of freedom of religion.

Geert.

 

 

 

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Happy Flights v Ryanair. Belgian Supreme Court (only) confirms proper lex causae for validity of choice of court under Article 25 Brussels Ia.

Thank you alumna and appreciated co-author Jutta Gangsted for flagging Charles Price’s (former learned colleague of mine at Dibb Lupton Alsop) and Sébastien Popijn’s alert on the Belgian Supreme Court’s ruling of 8 February last in C.18.0354.N Happy Flights v Ryanair. Happy Flights are a Belgium-based online claim agency to which disgruntled passengers may assign claims for compensation under Regulation 261/2004.

At issue is the validity of Ryanair’s choice of court in its general terms and conditions, referring consumers to Irish courts. The Brussels Commercial court on 30 May 2018 seemingly first of all did not assess whether the agency may be considered a ‘consumer’ within the terms of Irish consumer protection law (itself an implementation of Directive 93/13), having been assigned the consumers’ claims. The May 2018 decision itself is unreported <enters his usual rant about the lack of proper reporting of Belgian case-law>.

The Supreme Court (at 2, line 47) notes this lack of assessment by the lower court. It does not however complete the analysis sticking religiously to its role to interpret the law only, not the facts. Per CJEU Schrems mutatis mutandis I would suggest an affirmative answer (the agency having been assigned the consumers’ rights).

Do note that the use of the word ‘consumer’ in this context must not confuse: the consumer title of Brussels Ia itself does not apply unless the contract is one of combined travel and accommodation (or other services); the Regulation excludes contracts for travel only, from the scope of application of the consumer title.

The Brussels Commercial court subsequently and again from what one can infer from the Supreme Court’s ruling, discussed the validity of choice of court under Article 25 Brussels Ia, reviewing its formal conditions (formation of consent) yet judging the material validity under the lex fori, Belgian law, not the lex fori prorogati, Irish law. This is a clear violation of A25 juncto recital 20 Brussels Ia. The Supreme Court suggests that the relevant Irish implementation of the unfair consumer terms Directive 93/13 does imply invalidity of the clause (again: if the claim is held to fall under the consumer title, this analysis will become superfluous).

Note that the SC omits recital 20’s renvoi instruction, keeping entirely schtum about it: clearly misapplying the Regulation.

The Court’s judgment unlike the understandably enthusiastic briefing by Happy Flight’s counsel does not quite yet mean that Ryanair’s terms and conditions on this issue have been invalidated. However it is likely they will be upon further assessment on the merits – with hopefully the Court of Appeal not omitting Brussels Ia’s renvoi instruction. As I note above first up there will be the issue of assignment rather than the issue of A25.

For your interest, I gave a Twitter tutorial on a related issue (consumer law, lex causae, compulsory referral to arbitration) recently.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.4.

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Publish and rule. The Belgian Supreme Court on scholarship and the judiciary.

Thank you Jelle Flo for alerting us to the succinct Belgian Supreme Court ruling of 21 November 2018. A judge had published a scholarly piece on an issue of law, in tempore non suspecto, expressing a point of view which the Advocate General at the Court (here effectively acting as an amicus curiae) in a later specific case, agrees with.

The judiciary does publish regularly-ish. As do solicitors and barristers. For those of us who teach as well as practice, this at most leads to interesting times when opposing counsel or the bench points out a scholarly piece seemingly expressing a different point of view than our submissions; ordinarily, things are distinguishable…

For the judiciary, the Supreme Court sees no issue as long as the piece meets with scientific standards: ‘Le fait qu’un juge ait adopté un point de vue sur une question juridique dans une publication scientifique n’implique pas qu’il ne dispose plus de l’impartialité requise pour connaître d’un litige abordant ce sujet, pourvu qu’il ait développé sa pensée dans le respect des règles de la science du droit.’

The Court does not express guidance on what such standard might be – peer review perhaps comes to mind.

Geert.

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Glaxo v Sandoz. Collateral use of evidence. Discovery (‘disclosure’) shopping at the High Court.

Update 22 March 2019 for a similar application in the US, see Postalis, No. 18-mc-497 (JGK), analysed by Laura Kelly.

Glaxo Welcome v Sandoz et al  [2018] EWHC 3229 (Ch),  puts the spotlight on an important part of international forum shopping, namely discovery /disclosure, in particular collateral use of document obtained in one jurisdiction, in litigation in another. What is fundamentally at stake is that the launch of proceedings in a discovery friendly jurisdiction, may be simply employed as a jack for obtaining evidence to be used in a discovery-heavy jurisdiction. (A few months back the principles were also applied in Buzzfeed v Gubarev [2018] EWHC 1201 (QB)

Claimants apply for an order permitting the second claimant to use certain documents disclosed by some of the defendants (“the Sandoz Defendants”) in the claim in the English courts, in a claim in Belgium between the second claimant and Sandoz NV (“Sandoz Belgium”). The two claims are part of global litigation between members of the GlaxoSmithKline and Sandoz groups of companies. In Europe there are claims in several jurisdictions including England and Wales, The Republic of Ireland, Germany, The Netherlands and Belgium. The disclosure exercise between the claimants and the Sandoz Defendants has been very substantial. It involved the Sandoz Defendants reviewing 406,300 documents using 50 legally qualified reviewers. This led to the subsequent disclosure of slightly in excess of 75,000 documents to the claimants.

As Marsh CM notes at 11, ‘There is a marked contrast in the manner in which litigation is conducted in England and Wales on the one hand and Belgium (and most other Civil law countries) on the other hand. In England and Wales, the ability to obtain disclosure that is adverse to the other party’s claim is an important feature of litigation. However, the evidence provided in connection with the application shows that disclosure is only available in a very limited form in Belgium. One of the issues to be determined is whether disclosure obtained in this jurisdiction should be made available to a party that is engaged in litigation in a jurisdiction where disclosure, if not unknown, is very limited in scope.’

He is of course spot on: obtaining relevant documentation from the other party is not easily done in Belgium (and elsewhere) and often needs to be deduced from final filings of submissions or indeed at the hearing stage.

Relevant authority is discussed at 22 ff., and is really quite relevant: the discussion shows among others great consideration of rule of law concerns, mutual trust between EU Member States and Council of Europe parties, and the relevance of applicable law in the assessment (at 22(5): ‘The Belgian Claim proceeds under harmonised EU law as set out in the Trade Mark Directive. It follows that the English court is in a better position to consider initial relevance of the documents to the issues in the Belgian Claim than would be the case were the claim to be one brought under domestic Belgian law’).’

Final conclusion is in favour of collateral use of a substantial amount of documents. It is worth copying Marsh CM’s reasons in full: at 60:

(1)    The parties to this claim, and associated companies, are engaged in litigation on a very wide scale in many jurisdictions. They are part of very substantial businesses with equal resources. There is no suggestion that the application is oppressive.

(2)    Although the legal basis for this claim and the Belgian Claim are markedly different, there are similarities between some of the issues that are engaged.

(3)    The claimants have been able to satisfy the court that the majority of the documents they seek to use are likely to be relevant to the Belgian Claim. The interests of justice would therefore militate in favour of the claimants having an opportunity to obtain advice about their use in the Belgian Claim.

(4)    Use of the documents to enable the second claimant to consider whether, having obtained advice, a claim against additional parties should be pursued is, to my mind, more compelling than use of documents in connection with the Belgian Claim. There are no risks of adversely affecting the existing proceedings. The court should be slow to stand in the way of a party who wishes to obtain advice about pursuing a lawful course of action.

(5)    There is now an agreed procedure for the orderly progress of the appeal in Brussels with the second claimant filing an additional brief followed by Sandoz Belgium. The disruption, if any, by the introduction of additional documents has been minimised.

(6)    The number of documents the claimants seek to use is relatively small. Those that may be used in the Belgian Claim are not disproportionate in volume to what is at stake in those proceedings. There is no real danger that the Belgian Claim will be overwhelmed with additional documents even if all of them are deployed and Sandoz Belgium considers it is necessary to file additional documents to counter documents having been ‘cherry picked’ by the claimants.

(7)    The difference of approach between litigation in England and Belgium is a factor, but one of limited weight. There is no suggestion that the use of documents obtained in disclosure is an abuse of this court’s process. The risk of the Belgian Court’s process being subverted by the introduction of disclosure documents is marginal, particularly bearing in mind the involvement of the Belgian lawyers and the procedure that has been agreed.

(8)    I accept Mr Hickman’s submission in relation to the documents exhibited to Morris 7. The documents that are exhibited were extensively discussed in the witness statement which was read by the Deputy Judge. Although the claimants do not make an application for a declaration that they are permitted to use those documents as of right, the documents have been legitimately deployed for the purposes of an application heard in open court (subject only to the pro tem confidentiality order).

(9)    It is not open to the Sandoz Defendants to say, and they have not submitted, that if the order permitting use of the documents is made, their position in the Belgian Claim is prejudiced, in the sense that the likelihood of them successfully prosecuting the claim and/or defending the counterclaim is reduced. The interests of justice require that material which is likely to be relevant should be permitted for proper purposes. A reduction in their prospects of success is an immaterial consideration in their favour and, if anything, it weighs in the balance in favour of the claimant.

 

Geert.

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The Brussels International Business Court – Council of State continues to resist.

Update 21 March 2019 the proposal has now been torpedoed by one of the parties formerly serving in Belgium’s government – the BIBC will not be created for the time being.

Update 12 December 2018. The most recent proposal, the one actually adopted in Committee, is here. Note i.a. (Article 20) that the Committee has thankfully (see below) not followed the silly rules on languages. Whether the proposal will lead to law, remains to be seen: as we speak, the Belgian Government has turned into a minority government and not much is certain to go ahead before the next elections (May 2019).

I have reported twice before on the BIBC – once viz the initial version and a second time with my short report for the Parliamentary Hearing. I have now had a minute to review the Council of State’s comments on the amended version – among others with a view to preparing for next week’s conference on hybrid courts in Doha. Note that the Council of State here acts in its advisory function: essentially its opinions aim to improve draft statute so as to avoid future litigation.

What is clear from these recent comments is that the Council does not at all embrace the regulatory competition incentives which lie at the heart of the proposal, in particular in its view on how a matter may be made ‘international’ so as to justify engagement of the BIBC. Its view (let alone the Justice Council’s fear for forum shopping?!: encouraging such shopping being the very raison d’etre of the Act) contradicts the CJEU’s flexible stance on the issue as apparent eg in Vinyls Italia. As I noted in my comments before the Committee, it is a rather odd indeed parochial requirement to insist on parties having used English in their correspondence, before they can validly engage the BIBC. Even the suggested amendment that the use of languages other than Belgium’s three official ones (French, Dutch, German) should suffice, is not convincing to the Council. One hopes the drafters will ignore the Council’s hesitation at this point.

The Council does not of course engage in the political discussions surrounding the proposal: in particular, whether in a country in which the court system arguably does not operate to satisfaction, the creation of an international commercial court may compound, rather than remedy issues.

Geert.

 

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Unstunned slaughter and organic labelling. Wahl AG opines in light of scope of harmonisation.

Wahl AG advised  last week in Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case an NGO requests a certification body to stop certifying as ‘organic’, products obtained from religious slaughter, even though neither Council Regulation 834/2007 nor the Commission implementing Regulation 889/2008 on organic production and labelling of organic products with regard to organic production, labelling and control, mention stunned or unstunned slaughter.

I suggested earlier that the case turns around scope of application, albeit that the shadow of the human rights implications hangs over it. The Advocate General agrees: at 33: ‘the Court is therefore not strictly speaking required to rule on a question of interference with the freedom to manifest one’s religion’. In essence, what is not forbidden is allowed: the legislation on organic farming is silent on the question of ritual slaughter; (at 91) this silence on the matter is not the result of oversight for the ‘slaughter’ of animals is mentioned on several occasions in the legislation – is it just simply not regulated.

A certification body therefore is not in a position to impose conditions that do not appear in the relevant legislation in order to obtain an ‘organic farming’ certification. Provided that the provisions governing the methods of raising and slaughtering of animals in order to obtain the ‘organic farming’ label are complied with, the certification body is in principle required to issue that label without adding conditions that are not laid down in the legislation.

I believe the AG is right. I also, on substance, believe that unstunned slaughter, properly carried out, meets with the ethos of organic farming.

Geert.

 

 

 

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