Posts Tagged ECHR
Unstunned slaughter and EU law. CJEU suggests total ban would be unjustified. Also keep an eye on tomorrow’s case re organic labelling and unstunned slaughter.
Wahl AG advised late November and the Court held late May in C-426/16 – see my post on his Opinion at the time and 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.
The CJEU as readers will know practices judicial economy. On the face of it, the case only deals with the Flemish decision no longer to authorise, from 2015 onwards, the ritual (sic; why the EU institutions stubbornly refuse to name the practice by its proper name of religious slaughter is beyond me) slaughter of animals without stunning in temporary slaughterhouses in the that region during the Muslim Feast of Sacrifice (Eid al-Adha).
Readers best consult the text of the judgment for it is as concise as it is complete. As the Court points out at 56, the derogation authorised by Article 4(4) of Regulation 1099/2009 does not lay down any prohibition on the practice of religious slaughter in the EU but, on the contrary, gives expression to the positive commitment of the EU legislature to allow such slaughter of animals without prior stunning in order to ensure effective observance of the freedom of religion, in particular of practising Muslims during the Feast of Sacrifice. That is a clear indication of the CJEU being against a total ban (or at the least giving expression to the reality of the EU legislator not approving of such a ban).
That technical framework, the CJEU holds, is not in itself of such a nature as to place a restriction on the right to freedom of religion of practising Muslims. Whether the specific circumstances in Flanders, including the investment needed to convert temporary spaces into licensed abattoirs, in effect hinder Muslims’ practice of their faith in forum externum (at 44), is neither here nor there for the argument under consideration, which is that Article 4(4) itself is incompatible with the Charter on Fundamental rights.
One issue nota bene which was not sub judice, is the incomprehensible discrimination between ‘culture’ (exempt as a whole from the Regulation), and religion (regulated). In short: if myself and a bunch of locals slaughter animals without stunning on a Flemish medieval square, citing local custom, the Regulation does not catch me. But if I do so because I am religiously motivated not to stun, the Regulation’s regime kicks in.
Finally, I introduced my students at American University Washington, College of Law this morning to Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case (hearing at Kirchberg tomorrow) 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. That case turns around scope of application, I would suggest, albeit that the shadow of the human rights implications hangs over it.
Thank you Tobias Lutzi for alerting us to the ECtHR drawing the final curtain (legally speaking at least) over the tragic events surrounding the Krombach case. The case is a classic viz ordre public, recognition and enforcement issues. Current decision however relates to the criminal law aspects of the case and the ne bis in idem principle in particular.
The Court declared Krombach’s complaint inadmissible.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.4.
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!
Right to be forgotten v Right to know. In Townsend v Google Inc and Google UK the Northern Irish High Court emphasises public interest in open justice.
In  NIQB 81 Townsend v Google Inc. & Anor the Northern Ireland High Court refused service our of jurisdiction in relation to a request for Google (UK and Inc.) to de-list a number of urls relating to reports on sexual and other criminal offences committed by plaintiff.
Plaintiff seeks an injunction inter alia requiring the defendants and each of them to withdraw and remove personal data relating to the plaintiff, making reference to or tending to reveal sexual offences committed by the plaintiff while a child, from their data processing and indexing systems and to prevent access to such personal data in the future. The Court references ia Vidal-Hall and Google Spain. I will leave readers to digest the ruling largely for themselves for there is a lot in there: consideration of Article 8 ECHR; Directive 95/46; aforementioned precedent; tort law etc.
Of particular note is Stephens J’s finding at 61 that ‘(t)here is a clear public interest in open justice. There is a clear right to freedom of expression. In such circumstances the processing was not unwarranted and that there is no triable issue in relation to any allegation that Google Inc. has not satisfied this condition.’
A judgment to add to the growing pile of internet, jurisdiction and balancing of interests in privacy considerations.
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 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.
Others have reported in some detail, and I am happy to refer, on Arlewin v Sweden at the ECtHR – the second Strasbourg conflicts ruling I report on in more or less one week. Epra have a short and sweet review, based mostly on the Court’s press release but useful nevertheless: they for instance suggest that Strasbourg have extended e-Date Advertising’s centre of interests rule for infringement of personality rights via the internet, to transmission by satellite. Dirk Voorhoof takes the media regulation angle. Dr Takis has the most extensive review over at Profs Peers and Barnard’s EU law analysis.
The case is a good illustration of an important port of entry for the ECHR into EU conflicts law in commercial litigation at least (I am not talking here of family law): Article 6’s right to fair trial. (See here for more extensive review of the Convention’s impact on European private international law). Strasbourg and Luxemburg are playing combination football here: the ECtHR approving of the CJEU’s application of the Brussels I Regulation in the case of libel and defamation. Especially with the EC’s recent shift of focus to the plaintiff’s position rather than the defendant’s, nothing guarantees of course that in the future EU law at this point might not be at odds with human rights law.
(Handbook of) EU private international law, 2nd ed, 2016, Chapter 2, Heading 188.8.131.52.4 .
Refusal of recognition for failure to serve. ECtHR tests the Brussels regime against Strasbourg in AVOTIŅŠ v Latvia
In AVOTIŅŠ v Latvia |Avotins v LAtvia, the Grand Chamber of the ECtHR at Strasbourg held late May that Article 6 ECHR (right to fair trial) was engaged but not infringed by the Latvian’s Supreme Court’s application of Article 34(2( Brussel I (now Article 45(1) b Brussels I Recast).
The Article reads ‘A judgment shall not be recognised: (…) 2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;…
In the case at issue applicant sought refusal by the Latvian court of recognition of a Cypriot judgment issued against him. After review of the Regulation’s core pedigree of mutual recognition and mutual trust, burden of proof particularly exercised the Court: at 121:
‘The fact that the applicant relied on that Article (34(2), GAVC) without having challenged the judgment as required necessarily raised the question of the availability of that legal remedy in Cyprus in the circumstances of the present case. In such a situation the Senate was not entitled simply to criticise the applicant, as it did in its judgment of 31 January 2007, for not appealing against the judgment concerned, and to remain silent on the issue of the burden of proof with regard to the existence and availability of a remedy in the State of origin; Article 6 § 1 of the Convention, like Article 34(2) in fine of the Brussels I Regulation, required it to verify that this condition was satisfied, in the absence of which it could not refuse to examine the applicant’s complaint. The Court considers that the determination of the burden of proof, which, as the European Commission stressed (see paragraph 92 above), is not governed by European Union law, was therefore decisive in the present case. Hence, that point should have been examined in adversarial proceedings leading to reasoned findings. However, the Supreme Court tacitly presumed either that the burden of proof lay with the defendant or that such a remedy had in fact been available to the applicant. This approach, which reflects a literal and automatic application of Article 34(2) of the Brussels I Regulation, could in theory lead to a finding that the protection afforded was manifestly deficient such that the presumption of equivalent protection of the rights of the defence guaranteed by Article 6 § 1 is rebutted. Nevertheless, in the specific circumstances of the present application the Court does not consider this to be the case, although this shortcoming is regrettable.’
Those ‘specific circumstances’ include in particular the applicant’s professional background: at 124:
‘the applicant, who was an investment consultant, should have been aware of the legal consequences of the acknowledgment of debt deed which he had signed. That deed was governed by Cypriot law, concerned a sum of money borrowed by the applicant from a Cypriot company and contained a clause conferring jurisdiction on the Cypriot courts. Accordingly, the applicant should have ensured that he was familiar with the manner in which possible proceedings would be conducted before the Cypriot courts (…). Having omitted to obtain information on the subject he contributed to a large extent, as a result of his inaction and lack of diligence, to bringing about the situation of which he complained before the Court and which he could have prevented so as to avoid incurring any damage’.
I am not convinced by the Court’s view on the burden of proof and on the national court’s duty to assess the law in the State of origin sua sponte. Judges Lemmens and Briede, jointly concurring but for different reasons as the court, in my view have the better argument where they say
‘If the applicant wanted to argue that no remedy had in fact been available to him in Cyprus, in our opinion it would have been for him to raise this issue explicitly before the Supreme Court. We question whether he could expect the Supreme Court to raise that issue of its own motion. And we definitely consider that he cannot complain under Article 6 § 1 of the Convention about the lack of an explicit response to an argument that was not explicitly made.’
The end result is the same at the ECtHR. For future application of the Brussels I (Recast) Regulation however it makes a big difference.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16, Heading 184.108.40.206.4 (p.198).