Case c-336/19 – Centraal Israëlitisch Consistorie van België and Others

By October 28, 2020No Category

Date lodged: 18 April 2019
Referring court: Grondwettelijk Hof (Belgium)
Date of the decision to refer: 4 April 2019
Applicants: Centraal Israëlitisch Consistorie van België and Others, Unie Moskeeën Antwerpen VZW Islamitisch Offerfeest Antwerpen VZW, JG, KH Executief van de Moslims van België and Others, Coördinatie Comité van Joodse Organisaties van België, Section belge du Congrès juif mondial et Congrès juif européen VZW and Others
Intervening parties: LI, Vlaamse regering, Waalse regering, Kosher Poultry BVBA and Others
Global Action in the Interest of Animals VZW

Brief summary of the facts and the procedure in the main proceedings
1 On 7 July 2017, the Flemish Region adopted the Decree of 7 July 2017. That decree introduces a prohibition in principle of the slaughter without stunning of vertebrate animals, even when the slaughter takes place in the context of a religious rite. It also stipulates that the stunning procedure in the case of ritual slaughter must be reversible and must not result in the death of the animal.
2 In January 2018, the applicants brought proceedings before the Grondwettelijk Hof (Constitutional Court, Belgium) for annulment of the Decree of 7 July 2017. 3 LI, the Flemish Government, the Walloon Government, and the bvba Kosher Poultry and others intervened in the proceedings.

The essential arguments of the parties in the main proceedings
4 In support of their actions for annulment, the applicants in essence plead infringement of:

(1) Regulation No 1099/2009, read in conjunction with the principle of equality and non-discrimination, in that Jewish and Muslim believers are being deprived of the guarantee contained in Article 4(4) of Regulation No 1099/2009 to the effect that ritual slaughter cannot be made subject to the requirement of prior stunning, and in that the Decree of 7 July 2017, contrary to Article 26(2) of the aforementioned regulation, was allegedly not notified to the European Commission in time;
(2) freedom of religion, by making it impossible for Jewish and Muslim believers, on the one hand, to slaughter animals in accordance with the rules of their religion and, on the other hand, to obtain meat from animals slaughtered in accordance with those religious rules;
(3) the principle of separation of Church and State, because the provisions of the Decree of 7 July 2017 allegedly prescribe the manner in which a religious rite is to be carried out;
(4) the right to work and to the free choice of occupation, freedom to conduct a business and the free movement of goods and services, because it is impossible for religious butchers to practise their occupation, in that it is impossible for butchers and butcher’s shops to offer meat to their customers with the guarantee that it comes from animals that have been slaughtered in accordance with religious rules, and because it distorts competition between slaughterhouses located in the Flemish Region and slaughterhouses located in the Brussels Capital Region or in
another Member State of the European Union where the slaughter of animals without stunning is permitted;
(5) the principle of equality and non-discrimination, in that:

– Jewish and Muslim believers are treated, without reasonable justification, in the same way as people who are not subject to the specific dietary laws of a religion;
– the people who kill animals while hunting or fishing or controlling harmful organisms, on the one hand, and the people who kill animals according to special slaughter methods prescribed by the customs of religious worship, on
the other hand, are treated differently without reasonable justification, and – Jewish believers, on the one hand, and Muslim believers, on the other hand, are treated in the same way without reasonable justification.

5 In response to the applicants’ arguments, the Flemish Government and the
Walloon Government make the following submissions:
(1) The Flemish Government argues that Article 26(2) of Regulation No 1099/2009 explicitly states that Member States may adopt national rules aimed at ensuring more extensive protection of animals at the time of killing, including slaughter according to ritual methods. In other words, EU law does not guarantee that slaughtering by ritual methods cannot be subject to the obligation of prior stunning. The Walloon Government takes the view that the arguments put forward by the applicants deprive Article 26(2) of Regulation No 1099/2009 of any meaning.

(2) The Flemish Government argues that it follows from the case-law of the European Court of Human Rights (ECtHR) that freedom of religion does not include the right to slaughter an animal according to religious rules (judgment of the ECtHR of 27 June 2000, Cha’are Shalom Ve Tsedek v. France, CE:ECHR:2000:0627JUD002741795). It also considers that the prohibition of slaughter without stunning, in so far as there is interference with freedom of religion, is necessary in a democratic society, meets an imperative social need and is proportionate to the objectives pursued. The Walloon Government points out that the contested provisions pursue a legal objective, namely, the promotion of animal welfare.

(3) The Flemish Government argues that freedom of religious organisation does not prevent the government, when organising the operation of the State, from intervening in the practice of religion to the extent that this is compatible with religious harmony and tolerance. The Walloon Government is of the opinion that the legislature did not intend in any way to pass judgement on the religious rites and practices of any religion.

(4) The Flemish Government argues that the general prohibition of the slaughter of animals without stunning does not result in a restriction on the right to work. In so far as a restriction may be considered to exist, it is justified by the objective of preventing all avoidable suffering in the slaughter of animals. The Walloon Government considers that it has not been shown that the applicants who are employed as butchers would experience the loss of their economic activity because the provisions in question do not apply a criterion based on nationality or the State of origin and because the objective of pursuing animal welfare is specifically mentioned in Article 13 TFEU. It also argues that restrictions on the free movement of goods can be justified on the basis of mandatory requirements
such as the protection of the environment.

(5) The Flemish government argues that there is no question of discrimination. In the alternative, it argues that the fact that the Decree of 7 July 2017 does not distinguish between adherents of the Jewish faith and those who are not subject to specific dietary laws is reasonably justified because numerous scientific studies have shown that the slaughter of animals without prior stunning seriously compromises animal welfare. As regards the difference in treatment in relation to hunting, fishing and the control of harmful organisms, it considers that such activities are not comparable to those of the applicants since, given the nature of such activities, it is impossible to comply with an obligation of prior stunning. As regards the argument that Jewish and Muslim believers are being discriminated against, the Walloon Government argues that the contested provisions are appropriate to achieving the intended objective of animal welfare and that the difference in treatment alleged by the applicants is reasonably justified. As regards the difference in treatment relating to hunting, fishing and the control of harmful organisms, it argues that that context is different from that concerning the slaughter of animals.

(6) LI argues, in essence, that the contested decree does not infringe freedom of religion because the Jewish faith contains no prohibition of the slaughter of animals with stunning. In addition, he argues that any difference in treatment between killing animals during hunting and fishing, on the one hand, and slaughtering in accordance with religious rites, on the other, is justified because in the first case there is no possibility of stunning the animal in advance.

(7) The vzw Global Action in the Interest of Animals argues, in particular, that the contested decree does not infringe the principle of the separation of Church and State, respects freedom of religion and is proportionate to the objective pursued, namely the removal of unnecessary suffering and pain in animals.

(8) The bvba Kosher Poultry and others emphasise that the slaughter of animals in accordance with Jewish religious rules is more animal-friendly than regular slaughter methods. Furthermore, the exception to the requirement of slaughter with stunning provided for in Regulation No 1099/2009 is aimed at ensuring that freedom of religion is respected.

Subject matter of the main proceedings
The main proceedings concern various actions for the annulment of the Decree of the Flemish Region of 7 July 2017 amending the Law of 14 August 1986 on the protection and welfare of animals, regarding permitted methods of slaughtering animals; ‘the Decree of 7 July 2017’), instituted by the Centraal Israëlitisch Consistorie van België (Central Israelite Consistory of Belgium) and others, by the not-for-profit association ‘Unie Moskeeën Antwerpen’ (‘Union of Mosques, Antwerp’) and the not-for-profit association ‘Islamitisch Offerfeest Antwerp’ (‘Islamic Feast of Sacrifice, Antwerp’), by JG and KH, by the Executief van de Moslims van België (Muslim Executive of Belgium) and others, and by the not-for-profit association ‘Coördinatie Comité van Joodse Organisaties van België. Section belge du Congrès juif mondial et Congrès juif européen’ (‘Coordinating Committee of Belgian Jewish Organizations. Belgian Section of the World Jewish Congress and the European Jewish Congress’) and others.

Subject matter and legal basis of the request for a preliminary ruling
The request for a preliminary ruling concerns the question whether the prohibition of slaughter without stunning in the context of slaughter conducted during a religious rite, and the introduction of an alternative stunning procedure for such slaughter, as contained in the Decree of 7 July 2017, are compatible with EU law, more specifically with point (c) of the first subparagraph of Article 26(2) of Council Regulation No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, and with Article 10(1) (freedom of religion), Articles 20 and 21 (right to equality and non-discrimination), and Article 22 (principle of religious diversity) of the Charter of Fundamental Rights of the European Union.

Questions referred for a preliminary ruling

  1. Should point (c) of the first subparagraph of Article 26(2) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing be interpreted as meaning that Member States are permitted, by way of derogation from the provision contained in Article 4(4) of that regulation and with a view to promoting animal welfare, to adopt rules such as those contained in the decreet van het Vlaamse Gewest van 7 juli 2017 ‘houdende wijziging van de wet van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren, wat de toegelaten methodes voor het slachten van dieren betreft’ (Decree of the Flemish Region of 7 July 2017 ‘amending the Law of 14 August 1986 on the protection and welfare of animals, regarding permitted methods of slaughtering animals’), rules which provide, on the one hand, for a prohibition of the slaughter of animals without stunning that
    also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on condition that the stunning should not result in the death of the animal?
  2. If the first question referred for a preliminary ruling is to be answered in the affirmative, does point (c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009, in the interpretation referred to in the first question, infringe Article 10(1) of the Charter of Fundamental Rights of the European Union?
  3. If the first question referred for a preliminary ruling is to be answered in the affirmative, does point (c) of the first subparagraph of Article 26(2) read in conjunction with Article 4(4) of Regulation No 1099/2009, in the interpretation referred to in the first question, infringe Articles 20, 21 and 22 of the Charter of Fundamental Rights of the European Union, since, in the case of the killing of animals by particular methods prescribed by religious rites, provision is only made for a conditional exception to the obligation to stun the animal (Article 4(4), read in conjunction with Article 26(2)), whereas in the case of the killing of animals during hunting and fishing and during sporting and cultural events, for the reasons stated in the recitals of the regulation, the relevant provisions stipulate that those activities do not fall within the scope of the regulation, or are not subject to the obligation to stun the animal when it is killed (Article 1(1), second subparagraph, and Article 1(3))?

Provisions of EU law and international law cited
Treaty on the Functioning of the European Union: Articles 13, 26, 28 to 36, 49, 56 to 62, and 267

Treaty on European Union: Article 4(3).

Charter of Fundamental Rights of the European Union: Articles 10, 12, 15, 16, 20, 21, 22 and 52
Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ 2009 L 303, p. 1): recitals 4, 11, 14, 15, 16, 18, 20; Articles 1, 2, 3, 4, 7, 18, 20, 21 and 26 European Convention on Human Rights: Articles 8, 9, 11 and 14.

International Covenant on Civil and Political Rights: Articles 2, 18, 26 and 27
Universal Declaration of Human Rights: Articles 18 and 27 International Covenant on Economic, Social and Cultural Rights: Article 15

Provisions of national law cited
Grondwet (Constitution): Articles 10, 11, 19, 21, 23 and 27
Wet van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren (Law of 14 August 1986 on the protection and welfare of animals (B.S., 3.12.1986, p. 16382): Articles 3, 14a, 15, 16, 36 and 45b
Decreet van het Vlaamse Gewest van 7 juli 2017 houdende wijziging van de wet van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren, wat de toegelaten methodes voor het slachten van dieren betreft (Decree of the Flemish Region of 7 July 2017 amending the Law of 14 August 1986 on the protection and welfare of animals, regarding permitted methods of slaughtering animals (B.S., 18.7.2017, p. 73317): Articles 1, 3, 4, 5 and 6 Decreet van het Waalse Gewest van 18 mei 2017 tot wijziging van de artikelen 3, 15 en 16 en tot invoeging van een artikel 45 ter in de wet van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren (Decree of the Walloon Region of 18 May 2017 amending Articles 3, 15 and 16 and introducing an Article 45b in the Law of 14 August 1986 on the protection and welfare of animals (B.S., 1.6.2017, p. 60638).

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