In Liga van Moskeeen en Islamitische Organisaties Provincie Antwerpen VZW and Others [2018] EUECJ C-426/16, the Court was asked for a preliminary ruling on the validity of Article 4(4) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals in relation to the Flemish Regional Government’s decision no longer to approve temporary slaughterhouses during the Muslim Feast of Sacrifice.

The law

Regulation (EC) No 853/2004 on hygiene rules for “food of animal origin” applies to “all types of establishments, including small businesses and mobile slaughterhouses” and Article 4(1) provides that products of animal origin manufactured in the EU can be marketed only if they have been prepared and handled exclusively in establishments that meet the relevant requirements of the Regulation and have been registered and/or approved by the competent authority. Recital 15 guarantees respect for the legislative or administrative provisions and customs of the Member States relating, inter alia to religious rites and states that “It is therefore appropriate to exclude from the scope of this Regulation cultural events, where compliance with animal welfare requirements would adversely affect the very nature of the event concerned”. Recital 18 notes that Council Directive 93/119/EC granted a derogation from stunning in case of religious slaughter in slaughterhouses and that though “it is important that derogation from stunning animals prior to slaughter should be maintained”, Member States have “a certain level of subsidiarity” in the matter:

“As a consequence, this Regulation respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union.”

The facts of the case

A large number of practising Muslims in Belgium consider it their religious duty to slaughter an animal or to have an animal slaughtered on their behalf during the annual three-day Feast of Sacrifice. They eat some of the meat and give away the remainder to the poor and to neighbours and more distant family relatives [10 & 11] – and the slaughter must be carried out without pre-stunning [12]. Under Belgian law, ritual slaughter can be carried out only in permanent “approved” slaughterhouses or in “temporary” slaughterhouses “approved by the Minister responsible for agriculture, after consultation with the Minister responsible for public health” [13]; and in every year since 1998 the Belgian Federal Minister has approved temporary slaughterhouses in order to meet the increased demand for ritual slaughtering during the Feast of Sacrifice [14].

Matters of animal welfare were transferred on 1 July 2014 to the regions [16]. On 12 September 2014, the Flemish Regional Minister announced that, from 2015 onwards, he would no longer approve temporary slaughterhouses during the Feast of Sacrifice because such approvals were contrary to Regulation No 1099/2009 and, specifically, the rule in Article 4(4) together with Article 2(k), under which religious slaughter without pre-stunning might only take place in slaughterhouses satisfying the requirements of Regulation No 853/2004 [17].

Before the Court of First Instance of the Dutch-speaking community in Brussels [Nederlandstalige rechtbank van eerste aanleg Brussel] the applicants challenged the applicability of Regulation No 1099/2009 to ritual slaughter on the grounds that

• Article 1(3)(a)(iii) excluded from the scope of the Regulation the slaughter of animals during “cultural or sporting events”;
• Article 4(4) of Regulation No 1099/2009, read together with Article 2(k), infringed the freedom of religion protected by Article 10 of the Charter of Fundamental Rights of the EU and Article 9 ECHR; and
• the ruling failed to comply with Belgian customs relating to the religious rituals for the Feast of Sacrifice guaranteed by Article 13 TFEU [21].

The referring court observed that ritual slaughter carried out for the Feast of Sacrifice fell within the scope of Regulation No 1099/2009 because it was a “religious ritual” within the meaning of Article 2(g) and was therefore subject to the rule in Article 4(4) of the Regulation [22]; nevertheless, the Flemish Regional Minister’s circular restricted freedom of religion and undermined Belgian customs with regard to religious rituals because there were insufficient permanent slaughterhouses in the Flemish Region to satisfy the increased demand for halal meat during the Feast of Sacrifice:

“Thus, the requirement to carry out ritual slaughter in approved slaughterhouses prevents many practising Muslims from complying with their religious duty to slaughter an animal or to have an animal slaughtered on the first day of the Feast of Sacrifice in accordance with the prescriptions for the ritual” [23].

The referring court also argued that the restriction was disproportionate because, between 1998 and 2014, “the approved temporary slaughterhouses succeeded in ensuring that animal suffering was reduced to a sufficient extent and to comply with public health requirements” and converting the temporary slaughterhouses into slaughterhouses compliant with Regulation No 853/2004 would be disproportionately expensive in relation to the temporary nature of the ritual slaughter carried out there [24].

The court stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

“Is Article 4(4) of [Regulation No 1099/2009], read in conjunction with Article 2(k) thereof, invalid due to the infringement of Article 9 of [the ECHR], Article 10 of the [Charter] and/or Article 13 [TFEU], in that it provides 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 … Feast of Sacrifice, and the costs of converting temporary slaughter establishments, approved and monitored by the authorities, into slaughterhouses falling within the scope of [Regulation No 853/2004], do not appear relevant to achieving the objectives pursued of animal welfare and public health and do not appear proportionate thereto?” [26].

The judgment

The Grand Chamber rejected the contention of the Flemish Region, the Netherlands and United Kingdom Governments, the Council of the EU and the Commission that the question referred for a preliminary ruling was inadmissible [36]; moreover, ritual slaughter was covered by the concept of “religious rite” within the meaning of Article 4(4) of Regulation No 1099/2009 and was therefore within the scope of Article 10(1) of the Charter [49]. As to the substantive issues in play:

• on a combined reading of Article 4(1) and (4) of Regulation No 1099/2009 and Article 2(k), ritual slaughter without prior stunning was authorised by way of derogation so long as it took place in an establishment authorised by the competent national authorities and compliant with the technical requirements relating to the construction, layout and equipment required by Regulation No 853/2004 [55];
• as confirmed by recital 18, the derogation did not lay down any prohibition on the practice of ritual slaughter in the EU; rather, it gave expression to the positive commitment of the EU legislature to allow ritual slaughter without pre-stunning in order to ensure effective observance of the freedom of religion as laid down in Article 10 of the Charte [56 & 57];
• the obligation to carry out ritual slaughter in an approved slaughterhouse simply aimed to organise and manage, from a technical point of view, the freedom to carry out slaughter without prior stunning for religious purposes [58]; and
• that technical framework did not, in itself, restrict the right to freedom of religion for practising Muslims [59].

The mere fact that the application of Article 4(4) and Article 2(k) was likely to affect the freedom to practice ritual slaughter in one region of one Member State could not affect the validity of that provision under Article 10 of the Charter. Because Regulation No 1099/2009 had an impact in all Member States, its validity had to be examined taking into account not the situation in all EU Member States [74]. Moreover, the potential costs mentioned by the referring court had not prevented five former temporary slaughterhouses in the Flemish Region from complying with the rule under Articles 4(4) and 2(k) [75]. In short:

“a lack of slaughter capacity in a region of a Member State which occurs temporarily, related to the increase in demand for ritual slaughter over several days during the Feast of Sacrifice, arises from a combination of domestic circumstances which cannot affect the validity of Article 4(4) of that regulation, read together with Article 2(k)” [78].

The Grand Chamber ruled as follows:

“Examination of the question has not disclosed any issues capable of affecting the validity of Article 4(4) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 2(k) thereof, having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU.“