On 8 July 2020, the CJEU heard arguments in Case C-336/19 Centraal Israëlitisch Consistorie van België, a preliminary reference on a case brought by Belgian Muslim and Jewish communities challenging a national ban on slaughter without prior stunning. At issue is the discretion given to Member States to impose stricter requirements on religious slaughter than those mandated by Union law. Is this the end of national bans on all forms of slaughter without prior stunning?

Balancing religious freedom and animal welfare

Over the past few decades, animal welfare concerns have become an increasingly contentious issue in European politics. Calls for restrictions on ritual slaughter on animal welfare grounds have led to a variety of limitations on religious slaughter across the Union (in the process creating odd bedfellows, such as the Dutch far-right Party for Freedom and the far-left Party for the Animals). In Belgium, the Flemish legislature’s total ban on slaughter without prior stunning resulted in the reference for a preliminary ruling from the Belgian Constitutional Court. The key question referred to the CJEU is whether the broad discretion granted by Union law to Member States to restrict religious slaughter complies with the freedom of religion enshrined in Article 10 of the Charter. The coming judgment is likely to have far-reaching consequences for the balance between religious freedom and animal welfare in the Union, particularly as Member States like the Netherlands are facing renewed calls for a total ban on slaughter without prior stunning.

The starting point: A Union-wide ban on slaughter without prior stunning

Several political debates in the Member States essentially revolve around Member States’ implementation of Regulation (EC) 1099/2009 on the protection of animals at the time of killing. This Regulation contains a three-tiered approach to religious slaughter: firstly, Article 4(1) imposes a general ban on slaughter without prior stunning across the Union; secondly, Article 4(4) exempts religious slaughter from the stunning obligation if executed in slaughterhouses; and, thirdly, Article 26(2)(c) allows Member States discretion to implement restrictions on religious slaughter in order to provide ‘more extensive protection of animals’.

The pending Belgian case will not be the first time the Court gives a verdict on the protection of religious slaughter under the Regulation. In Liga van Moskeeën, the Court found that technical requirements – such as the obligation to carry out religious slaughter in slaughterhouses – that merely organise religious slaughter do not violate the protection granted to religious rites under Article 4(4). Thus, scope exists for regulation of religious slaughter that does not constitute a restriction of religious freedom.

What room for ‘stricter national measures’?

Of the questions referred, this blog post focuses on the question on the legality of Article 26(2)(c) of the Regulation: does the discretion granted to Member States to adopt stricter national measures on religious slaughter violate Article 10 of the Charter? An affirmative answer by the Court to this question seems highly unlikely, because the invalidation of Article 26(2)(c) would not only run counter to the legislative intent of the Regulation, but also reflect a potentially overbroad approach to the curtailment of discretion.

Firstly, invalidation of Article 26(2)(c) would run counter to the putative aim of the Regulation: creating a balance between animal welfare and religious freedom. Member States would be barred from mitigating the potential harmful effects on animal welfare by adopting one of the measures – such as the ‘post-cut stunning’ practised in Austria and elsewhere – on the spectrum between a total ban and the technical organising measures upheld in Liga van Moskeeën. Secondly, invalidation of Article 26(2)(c) would sit awkwardly with the ECtHR’s finding in Cha’are Shalom that limitations exist to religious slaughter that do not constitute interferences with the right to freedom of religion. The invalidation of Article 26(2)(c) on the basis of Article 10 of the Charter would strip Member States of their ability to impose measures to protect animal welfare that do not, under current law, restrict or violate the freedom to manifest one’s religion.

The more fundamental question behind the challenge to Article 26(2)(c) is, however, whether the possibility that Member States misuse discretion may lead to the invalidation of a provision. In that light, the invalidation of Article 26(2)(c) seems an untailored means of limiting discretion, especially as there is a less intrusive alternative: harmonious interpretation of Article 26(2)(c) and the Charter. Thus, instead of taking away all discretion from Member States regardless of the peculiarities of national circumstances or permitting Member States to use their discretion to effectively end religious slaughter, discretion should be confined by Article 10 of the Charter.

The Charter and Regulation 1099/2009: Harmonious interpretation?

The harmonious interpretation approach has a number of benefits for the Court beyond its aesthetic legal appeal. It would enable Member States to enact exactly those measures that are somewhere in between the technical requirements of Liga van Moskeeën and the total ban at issue in the case before the Court. Member States would be able to implement certain restrictions that may reduce animal suffering – such as temporal or geographic conditions on slaughter, or limitations on production beyond what is needed for national domestic consumption – while being constrained by the proportionality assessment required by the Charter to protect the balance between religious freedom and animal welfare.

At the same time, this approach would thus prevent Member States from rendering the protection for religious rites of Article 4(4) of the Regulation and Article 10 of the Charter obsolete. A harmonious reading of Article 26(2)(c) and Article 10 of the Charter moves the basis of assessment from the ambiguous boundaries of technical requirements to a holistic proportionality test. It thus creates a more durable base for the protection of religious liberties, as national implementing measures would be required to satisfy an Article 10 Charter analysis on a case-by-case basis.

What would the harmonious interpretation approach mean for the case presently before the Court? In light of Cha’are Shalom, the Belgian total ban on slaughter without prior stunning might seem lawful, given that importation of Halal and Kosher meat remains possible. However, with the proliferation of ritual slaughter bans and export restrictions (like that contained in the Dutch religious slaughter covenant), importation may be in danger of becoming a merely theoretical possibility. Moreover, with its post-Cha’are Shalom judgment in Eweida, the ECtHR seems to have broadened the scope of its interpretation of an interference with the right to manifest one’s religion. Read, then, in light of the third limb of the proportionality test – proportionality strictu sensu – it seems impossible to present a total ban in the Belgian model as striking the required balance of legitimate aims.

Conclusion

All in all, it seems highly unlikely that the upcoming judgment will end national discretion to adopt stricter measures for the protection of animals under Article 26(2)(c) of Regulation 1099/2009. The mere possibility that Member States misuse their discretion cannot justify the invalidation of that provision altogether, given that the exercise of that discretion may in certain instances be compatible with the Charter. By instead confirming the validity of Article 26(2)(c), while insisting on a case-by-case proportionality assessment in light of the Charter, the Court of Justice can preserve the coherence of its existing case law on animal welfare and provide a more durable and dynamic ground for the protection of religious rites.

This post was inspired by questions raised during the 2019-2020 ELMC moot court. The authors thank the coaches of the Leiden ELMC team.