Case C-426/16, Liga van Moskeeën – ritual killing

Belgian Muslims ritually kill sheep and lambs for the Islamic Festival of Sacrifice. Ritual suggests that these animals be slaughtered without anaesthetic or first being stunned. This contradicts general Belgian and EU animal welfare law. However, Belgian law has an exception for a ritual killing. A ritual killing will be allowed if it happens in State-recognised slaughterhouses. The problem is that in Flanders these cannot cope with the demand. Consequently, temporary slaughterhouses are being used, and extra costs are being incurred by Flemish Muslims and mosques. Therefore, the legal question is whether this situation is compatible with legal obligations to protect freedom of religion.

Background
In Belgium, animal welfare law dictates that animals are to be stunned or otherwise anaesthetised prior to being killed. In contrast, many Belgian Muslims of Turkish extraction like animals to be killed without a preliminary stun, particularly when they slaughter sheep to celebrate the Islamic Festival of Sacrifice.

In theory, that is not a problem. Both Belgian and EU law allow the killing of animals for ritual purposes without a stun, providing it happens within State-recognised slaughterhouses.

There is, though, a practical problem. In the Flanders Region of Belgium the slaughterhouses claim they cannot cope with the Muslims’ seasonal demand for non-stunned slaughter.

Consequently, temporary slaughter establishments have been used. In 2014, there were no fewer than 59 temporary slaughter establishments in the Flanders Region of Belgium alone. But for these temporary slaughter establishments to comply with Belgian law, they still needed to be recognised by the Belgian State and that cost a great deal of money. Flanders’ Muslims and mosques were left picking up the tab.

Faced with growing discontent at the position adopted by the Region of Flanders, in 2015 an association of Belgian mosques called for no sheep to be slaughtered in areas of Belgium like Flanders where the slaughterhouses were unable to cope with the extra demand. As a result, only 6500 sheep were slaughtered in Flanders’ state-recognised slaughterhouses, and a mere 313 sheep were slaughtered in just 7 temporary state-recognised slaughterhouses. (However, in those temporary state-recognised slaughterhouses, sheep were being killed only after they had first been stunned.)

As the year wore on, Belgium’s Muslim communities began to prepare for the 2016 Islamic Festival of Sacrifice. Unusually, a part of the preparations involved instructing lawyers. They sought an injunction in the event that a Belgian Minister of State would decide to end the use of temporary slaughterhouses. The lawyers foresaw that any such decision would then restrict ritual killings without a pre-stun, to just state-recognised slaughterhouses. Given the existing capacity-problem, the lawyers forecast that some Belgian Muslims would simply be unable to fulfil their religious obligations.

Dressed up in more legal language, the claim was made that the EU and Belgian slaughterhouse legislation was invalid. This is because it is said to be contrary to EU law; contrary to Belgian constitutional law that separates religion from the state; contrary to the legal principle of non-discrimination (as enshrined in the EU Charter, the ECHR and Belgian law); and contrary to the Belgian State’s obligations to guarantee freedom of religion (as enshrined in Article 9 ECHR and Article 10 of the EU Charter). The claimants concluded their pleadings by pointing out that since they were challenging the validity of EU legislation, the Brussels court should make a preliminary reference to the CJEU.

While the Brussels court of first instance did grant the request for a preliminary reference to the CJEU, it also went against the Belgian Association of Mosques and Muslim groupings by allowing an animal-welfare organisation to intervene in the litigation.

For the rest, the Brussels court acknowledged that although the freedom of religion was not an absolute freedom, the measures of the Flanders Region did seem disproportionate since the financial costs involved with getting a temporary slaughterhouse to be recognised by the state were not relevant to attaining the policy goals of either human health or animal welfare.

Question Referred
According to Monday’s Official Journal (OJ [2016] C383), the Brussels court of first instance has asked:

Is Article 4(4), read in conjunction with Article 2(k), of Council Regulation (EC) No 1099/2009 […] of 24 September 2009 on the protection of animals at the time of killing invalid due to the infringement of Article 9 of the European Convention on Human Rights, Article 10 of the Charter of Fundamental Rights of the European Union and/or Article 13 of the Treaty on the functioning of the European Union, in that they provide that animals may be slaughtered in accordance with special methods required by religious rites without being stunned only if such slaughter takes place in a slaughterhouse falling within the scope of Regulation No 853/2004, […] whereas there is insufficient capacity in the Vlaams Gewest (Flemish Region) to meet the annual demand for the ritual slaughter of unstunned animals on the occasion of the Islamic Festival of Sacrifice, and the costs of converting temporary slaughter establishments, approved and monitored by the authorities, for the purpose of the Islamic Festival of Sacrifice, into slaughterhouses falling within the scope of Regulation (EC) No 853/2004, do not appear relevant to achieving the objectives pursued of animal welfare and public health and do not appear proportionate thereto?

Comment
This preliminary reference comes hot on the heels of a recent animal-welfare judgment from the CJEU; see further, Case C-592/14, European Federation for Cosmetic Ingredients – ingredients tested on animals.

However, this fresh preliminary reference is politically more sensitive still. To begin with, the dispute originates in the Flanders region of Belgium. This region is home to a legally-recognised political movement which is not pro-Islam; see for example the facts leading up to Case C-201/13, Johan Deckmyn – parody in EU law.

Belgian parochial politics aside, this preliminary reference sits atop a far more profound issue – the relationship between ritual and EU law. It is an issue that is already at the heart of two other preliminary references which are currently pending before the CJEU, and both of them concern whether an employer can stop the wearing of Islamic head-scarves in the workplace; see further, the Belgian preliminary reference docketed as Case C-157/15, Achbita; and the French preliminary reference docketed as Case C-188/15, Bougnaoui.