By Dr. Matthijs de Blois, Senior Fellow, thinc.

Introduction

On 10 September 2020 Advocate General (AG) Hogan delivered his much anticipated Opinion in an important case concerning ritual slaughter pending before the Court of Justice of the EU (CJEU). The case concerns the judicial review of a Decree by the Flemish Region that requires animals to be stunned prior to slaughter to reduce their suffering, thereby effectively prohibiting the slaughter of animals according to Jewish and Muslim rites. The case was brought before the Belgian Constitutional Court, which decided to stay the proceedings and request the CJEU to give a preliminary ruling on the compatibility of the Flemish legislation with European law. 

AG Hogan suggests that the Flemish Law proscribing slaughter of animals without stunning, including religious slaughter rites, is incompatible with EU law. He proposes that Member States should be allowed to adopt stricter rules than those contained in EU law on animal slaughter, but the prescribed derogation protecting religious rites must be protected.

Animal Welfare and the Religious Rites Exception

Central to this case is the interpretation of the Articles 4(4) and 26(2) of Regulation 1099/2009 on the protection of animals at the time of killing, in the light of Article 10 of the Charter of Fundamental Rights of the EU (CFREU) that protects freedom of religion, and Article 13 of the Treaty on the Functioning of the European Union (TFEU). The latter provides that Member States should pay full regard to animal welfare  “while respecting the [law] and customs of member States relating in particular to religious rites, cultural traditions and regional heritage.” Accordingly, while Article 4(1) of the Regulation prescribes stunning of animals prior to slaughter, paragraph (4) does provide for a noteworthy exception, namely that paragraph 1 shall not apply in case of ritual slaughter prescribed by religious rites, provided the slaughter is carried out in a slaughterhouse. The Belgian Court inquired whether this exception could be bypassed in cases where a Member States chooses to avail itself of the possibility provided for in Article 26(2) of the Regulation, namely to adopt national rules providing more extensive protection of animals during, amongst others, the slaughtering and related operations of animals in accordance with Article 4(4).

AG Hogan referred to an earlier judgment of the Court of Justice in which it upheld the validity of Article 4(4) of the Regulation, having regard to Article 10 of the CFREU. His Opinion follows the same track, clarifying the relationship between Articles 4(4) and 26(2) of the Regulation. In his view Article 4(4) reflects the desire of the EU legislature to balance the respect for freedom of religion and the right to religious practice and observance, on the one hand,  with animal welfare and specifically the prevention of suffering caused in the context of ritual slaughter, on the other. This provision, in his view, effectuates the EU’s commitment to a tolerant and pluralist society in which different views and beliefs must coexist (para 57).

He further observes, as to the adoption of stricter rules (Article 26(2)(c)), that account must be taken of the context and nature of the derogation provided for by Article 4(4). In other words, Article 26(2) should be read in light of Article 4(4) and given effect in a way that would not nullify the derogation provided for in Article 4(4). After all, this derogation itself is aimed at safeguarding the religious freedoms of those faiths for whom ritual slaughter of animals is fundamental to the observance of religious tradition, practice and, indeed, central to the religious identity (para 70).

Concerning the question posed by the Belgian Constitutional Court, AG Hogan concludes that Article 26(2), read together with Article 4(1) and(4) of the Regulation and having regard to Article 10 CFREU and Article 13 TFEU,  must be interpreted holistically. As a consequence, Member States are not permitted to adopt rules that prohibit the ritual slaughter of animals without stunning, neither may they provide for an alternative stunning procedure for ritual slaughter based on reversible stunning (para 77-88). Thus, the religious rites exception under Article 4(4) should be upheld.

Conclusion

Having regard to the importance of the protection of the freedom of religion in a pluralist society, it is to be hoped that the Court will follow the Opinion of the Advocate General. This Opinion is especially pertinent for Belgium, where both the Flemish and the Wallonia Region have outlawed  religious slaughter. It is also relevant for other EU Member States that prohibit  ritual slaughter (Denmark, Sweden), as well as for  The Netherlands where a bill is presently pending before Parliament to outlaw ritual slaughter. A ruling of the Court declaring that the prohibition of ritual slaughter is contrary to European Law would deal a deathblow to these laws and proposals that restrict the freedom of religion in an unjustified way. But most of all, it would underline that the European Union is still taking the protection of religious freedom, also of Jews and Muslims, seriously.