By Dr. Matthijs de Blois, Senior Fellow at thinc.
On 17 December 2020 the Grand Chamber of the Court of Justice of the European Union ruled that a Decree by the Flemish Region that requires animals to be stunned prior to slaughter to reduce their suffering does not contravene European law. This judgement is a serious threat to the freedom of religion in Europe. Against the dark background of European history, which is full of examples of the suppression of Jewish religious practices, including the prohibition of ritual slaughter, this is a sad observation.
In a Judgment of 17 December 2020 the Grand Chamber of the Court of Justice of the European Union (CJEU) ruled that a Decree by the Flemish Region that requires animals to be stunned prior to slaughter to reduce their suffering does not contravene European law.
In doing so it rejected the view of its Advocate General Hogan, who on 10 September 2020 advised the Court that the Flemish Decree unnecessarily infringes the freedom of religion of Jews and Muslims.
The case was brought before the Belgian Constitutional Court, which decided to request the CJEU to give a preliminary ruling on the compatibility of the Flemish legislation with European law. The central issue in 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) which 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.”
Article 4(1) of the Regulation requires stunning of animals prior to slaughter, but paragraph (4) provides that paragraph 1 shall not apply to ritual slaughter that is prescribed by religious rites, provided the slaughter is carried out in a slaughterhouse. The Belgian Court asked the CJEU to decide whether a Member State is entitled to avoid this exception by availing itself of the possibility provided for in Article 26(2) of the Regulation, which states that national rules may require more extensive protection of animals during (inter alia) the slaughtering and related operations of animals in accordance with Article 4(4).
The Court agreed that “the decree at issue in the main proceedings entails a limitation on the exercise of the right of Jewish and Muslim believers to the freedom to manifest their religion, as guaranteed in Article 10(1) of the Charter.” But then it refers to Article 52 CFREU that allows for restrictions of the rights of the Charter, also taking into account the corresponding rights in the European Convention on Human Rights (ECHR). It observes that “any limitation on the exercise of the rights and freedoms recognised by that charter must be provided for by law and respect the essence of those rights and freedoms. The second sentence of Article 52(1) states that, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.” The Court is of the opinion that “national legislation which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, respects the essence of Article 10 of the Charter, since (…), the interference resulting from such legislation is limited to one aspect of the specific ritual act of slaughter, and that act of slaughter is not, by contrast, prohibited as such.”
This observation reveals that the Court does not only consider itself to be an expert in European law, but also in the religious law of the Jewish and Muslim communities concerned. It is, however, beyond the power of the Court to rule on the importance of an aspect of religious regulations. To do so contravenes the very core of the freedom of religion – namely that each religion may determine what practices are important for it.
The Court goes on to observe that the national legislation at issue ”meets an objective of general interest”, noting that “‘Flanders attaches great importance to animal welfare’, that ‘the objective is, therefore, to eliminate all avoidable animal suffering in Flanders’, that ‘the slaughter of animals without stunning is incompatible with that principle’”.  The Court furthermore points to “the existence of different ‘national perceptions’ in relation to animals and to the need to leave a ‘certain flexibility’ or ‘a certain degree of subsidiarity’ to Member States. It held that the EU legislature intended to preserve the specific social context of each Member State in that respect and to give each Member State a broad discretion in the context of the need to reconcile Article 13 TFEU with Article 10 of the Charter, for the purposes of striking a fair balance between, on the one hand, the protection of the welfare of animals when they are killed and, on the other, respect for the freedom to manifest religion.” The Court concluded that “the Flemish legislature was entitled (…) to consider that the limitations placed by the decree at issue in the main proceedings on freedom to manifest religion, by requiring prior stunning which is reversible and cannot result in the animal’s death, meet the condition of necessity.” It added that “the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (…) with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings.”
This openness to modern ideas adopted by the Court (in imitation of the European Court of Human Rights) endangers the freedom of religion which protects rituals that have existed for thousands of years. All in all, the judgement is a serious violation of the enjoyment of the freedom of religion in Europe by religious minorities. Against the dark background of European history, which is full of examples of the suppression of Jewish religious practices, including the prohibition of ritual slaughter, this is a sad observation.
 CJEU 17 December 2020, Case C‑336/19, Centraal Israëlitisch Consistorie van België and Others
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