Posts Tagged Public Morals
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.
I believe the AG is right. I also, on substance, believe that unstunned slaughter, properly carried out, meets with the ethos of organic farming.
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; update November 2018 see my reiew of the AG Opinion here) 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.
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!
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.
After leaks, the Panel’s ruling in EU Seals is finally out. As it was only released this afternoon, I have not as yet had time to read it thoroughly. However diagonal reading reveals that by and large the regime was found to qualify for the public morals exception under the GATT Agreement (and not to be more trade restrictive than necessary to protect same under the TBT Agreement) however the pro Inuit exceptions have proven to be the Regulation’s Achiless heel. As I have suggested in the past in other areas, this may well mean that the EU has no choice but to resort to stricter rules, leaving out the exceptions.
Further analysis and post later in the week hopefully.