Opinion of the Advocate General — ECLI:EU:C:2020:695
Date: 2020-09-10
Language of the case: Dutch
Subject matter: Agriculture and Fisheries;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-336/19 — 1 
Case C-336/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
18 April 2019 
Referring court:  
Grondwettelijk Hof (Belgium) 
Date of the decision to refer:  
4 April 2019 
Applicants:  
Centraal Israëlitisch Consistorie van België and Others 
Unie Moskeeën Antwerpen VZW 
Islamitisch Offerfeest Antwerpen VZW 
JG 
KH 
Executief van de Moslims van België and Others 
Coördinatie Comité van Joodse Organisaties van België. Section 
belge du Congrès juif mondial et Congrès juif européen VZW and 
Others 
Intervening parties:  
LI 
Vlaamse regering 
Waalse regering 
Kosher Poultry BVBA and Others 
Global Action in the Interest of Animals VZW 
EN 
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Subject matter of the main proceedings 
The main proceedings concern various actions for the annulment of the decreet 
van het Vlaamse Gewest van 7 juli 2017 houdende wijziging van de wet van 14 
augustus 1986 betreffende de bescherming en het welzijn der dieren, wat de 
toegelaten methodes voor het slachten van dieren betreft (Decree of the Flemish 
Region of 7 July 2017 amending the Law of 14 August 1986 on the protection and 
welfare of animals, regarding permitted methods of slaughtering animals; ‘the 
Decree of 7 July 2017’), instituted by the Centraal Israëlitisch Consistorie van 
België (Central Israelite Consistory of Belgium) and others, by the not-for-profit 
association ‘Unie Moskeeën Antwerpen’ (‘Union of Mosques, Antwerp’) and the 
not-for-profit association ‘Islamitisch Offerfeest Antwerp’ (‘Islamic Feast of 
Sacrifice, Antwerp’), by JG and KH, by the Executief van de Moslims van België 
(Muslim Executive of Belgium) and others, and by the not-for-profit association 
‘Coördinatie Comité van Joodse Organisaties van België. Section belge du 
Congrès juif mondial et Congrès juif européen’ (‘Coordinating Committee of 
Belgian Jewish Organizations. Belgian Section of the World Jewish Congress and 
the European Jewish Congress’) and others. 
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling concerns the question whether the prohibition 
of slaughter without stunning in the context of slaughter conducted during a 
religious rite, and the introduction of an alternative stunning procedure for such 
slaughter, as contained in the Decree of 7 July 2017, are compatible with EU law, 
more specifically with point (c) of the first subparagraph of Article 26(2) of 
Council Regulation No 1099/2009 of 24 September 2009 on the protection of 
animals at the time of killing, and with Article 10(1) (freedom of religion), 
Articles 20 and 21 (right to equality and non-discrimination), and Article 22 
(principle of religious diversity) of the Charter of Fundamental Rights of the 
European Union. 
The request is made pursuant to Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Should point (c) of the first subparagraph of Article 26(2) of Council 
Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of 
animals at the time of killing be interpreted as meaning that Member States are 
permitted, by way of derogation from the provision contained in Article 4(4) of 
that regulation and with a view to promoting animal welfare, to adopt rules such 
as those contained in the decreet van het Vlaamse Gewest van 7 juli 2017 
‘houdende wijziging van de wet van 14 augustus 1986 betreffende de 
bescherming en het welzijn der dieren, wat de toegelaten methodes voor het 
slachten van dieren betreft’ (Decree of the Flemish Region of 7 July 2017 
‘amending the Law of 14 August 1986 on the protection and welfare of animals, 
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regarding permitted methods of slaughtering animals’), rules which provide, on 
the one hand, for a prohibition of the slaughter of animals without stunning that 
also applies to the slaughter carried out in the context of a religious rite and, on 
the other hand, for an alternative stunning procedure for the slaughter carried out 
in the context of a religious rite, based on reversible stunning and on condition 
that the stunning should not result in the death of the animal? 
2. If the first question referred for a preliminary ruling is to be answered in the 
affirmative, does point (c) of the first subparagraph of Article 26(2) of Regulation 
No 1099/2009, in the interpretation referred to in the first question, infringe 
Article 10(1) of the Charter of Fundamental Rights of the European Union? 
3. If the first question referred for a preliminary ruling is to be answered in the 
affirmative, does point (c) of the first subparagraph of Article 26(2) read in 
conjunction with Article 4(4) of Regulation No 1099/2009, in the interpretation 
referred to in the first question, infringe Articles 20, 21 and 22 of the Charter of 
Fundamental Rights of the European Union, since, in the case of the killing of 
animals by particular methods prescribed by religious rites, provision is only made 
for a conditional exception to the obligation to stun the animal (Article 4(4), read 
in conjunction with Article 26(2)), whereas in the case of the killing of animals 
during hunting and fishing and during sporting and cultural events, for the reasons 
stated in the recitals of the regulation, the relevant provisions stipulate that those 
activities do not fall within the scope of the regulation, or are not subject to the 
obligation to stun the animal when it is killed (Article 1(1), second subparagraph, 
and Article 1(3))? 
Provisions of EU law and international law cited 
Treaty on the Functioning of the European Union: Articles 13, 26, 28 to 36, 49, 56 
to 62, and 267 
Treaty on European Union: Article 4(3)  
Charter of Fundamental Rights of the European Union: Articles 10, 12, 15, 16, 20, 
21, 22 and 52 
Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection 
of animals at the time of killing (OJ 2009 L 303, p. 1): recitals 4, 11, 14, 15, 16, 
18, 20; Articles 1, 2, 3, 4, 7, 18, 20, 21 and 26 
European Convention on Human Rights: Articles 8, 9, 11 and 14 
International Covenant on Civil and Political Rights: Articles 2, 18, 26 and 27 
Universal Declaration of Human Rights: Articles 18 and 27 
International Covenant on Economic, Social and Cultural Rights: Article 15 
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Provisions of national law cited 
Grondwet (Constitution): Articles 10, 11, 19, 21, 23 and 27 
Wet van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren 
(Law of 14 August 1986 on the protection and welfare of animals (B.S., 
3.12.1986, p. 16382): Articles 3, 14a, 15, 16, 36 and 45b 
Decreet van het Vlaamse Gewest van 7 juli 2017 houdende wijziging van de wet 
van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren, wat 
de toegelaten methodes voor het slachten van dieren betreft (Decree of the 
Flemish Region of 7 July 2017 amending the Law of 14 August 1986 on the 
protection and welfare of animals, regarding permitted methods of slaughtering 
animals (B.S., 18.7.2017, p. 73317): Articles 1, 3, 4, 5 and 6 
Decreet van het Waalse Gewest van 18 mei 2017 tot wijziging van de artikelen 3, 
15 en 16 en tot invoeging van een artikel 45 ter in de wet van 14 augustus 1986 
betreffende de bescherming en het welzijn der dieren (Decree of the Walloon 
Region of 18 May 2017 amending Articles 3, 15 and 16 and introducing an 
Article 45b in the Law of 14 August 1986 on the protection and welfare of 
animals (B.S., 1.6.2017, p. 60638) 
Brief summary of the facts and the procedure in the main proceedings 
1 On 7 July 2017, the Flemish Region adopted the Decree of 7 July 2017. That 
decree introduces a prohibition in principle of the slaughter without stunning of 
vertebrate animals, even when the slaughter takes place in the context of a 
religious rite. It also stipulates that the stunning procedure in the case of ritual 
slaughter must be reversible and must not result in the death of the animal. 
2 In January 2018, the applicants brought proceedings before the Grondwettelijk 
Hof (Constitutional Court, Belgium) for annulment of the Decree of 7 July 2017. 
3 LI, the Flemish Government, the Walloon Government, and the bvba Kosher 
Poultry and others intervened in the proceedings. 
The essential arguments of the parties in the main proceedings  
4 In support of their actions for annulment, the applicants in essence plead 
infringement of: 
(1) Regulation No 1099/2009, read in conjunction with the principle of equality 
and non-discrimination, in that Jewish and Muslim believers are being deprived of 
the guarantee contained in Article 4(4) of Regulation No 1099/2009 to the effect 
that ritual slaughter cannot be made subject to the requirement of prior stunning, 
and in that the Decree of 7 July 2017, contrary to Article 26(2) of the 
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aforementioned regulation, was allegedly not notified to the European 
Commission in time; 
(2) freedom of religion, by making it impossible for Jewish and Muslim believers, 
on the one hand, to slaughter animals in accordance with the rules of their religion 
and, on the other hand, to obtain meat from animals slaughtered in accordance 
with those religious rules; 
(3) the principle of separation of Church and State, because the provisions of the 
Decree of 7 July 2017 allegedly prescribe the manner in which a religious rite is to 
be carried out; 
(4) the right to work and to the free choice of occupation, freedom to conduct a 
business and the free movement of goods and services, because it is impossible for 
religious butchers to practise their occupation, in that it is impossible for butchers 
and butcher’s shops to offer meat to their customers with the guarantee that it 
comes from animals that have been slaughtered in accordance with religious rules, 
and because it distorts competition between slaughterhouses located in the 
Flemish Region and slaughterhouses located in the Brussels Capital Region or in 
another Member State of the European Union where the slaughter of animals 
without stunning is permitted; 
(5) the principle of equality and non-discrimination, in that 
– Jewish and Muslim believers are treated, without reasonable justification, in the 
same way as people who are not subject to the specific dietary laws of a 
religion; 
– the people who kill animals while hunting or fishing or controlling harmful 
organisms, on the one hand, and the people who kill animals according to 
special slaughter methods prescribed by the customs of religious worship, on 
the other hand, are treated differently without reasonable justification, and 
– Jewish believers, on the one hand, and Muslim believers, on the other hand, are 
treated in the same way without reasonable justification. 
5 In response to the applicants’ arguments, the Flemish Government and the 
Walloon Government make the following submissions: 
(1) The Flemish Government argues that Article 26(2) of Regulation 
No 1099/2009 explicitly states that Member States may adopt national rules aimed 
at ensuring more extensive protection of animals at the time of killing, including 
slaughter according to ritual methods. In other words, EU law does not guarantee 
that slaughtering by ritual methods cannot be subject to the obligation of prior 
stunning. The Walloon Government takes the view that the arguments put forward 
by the applicants deprive Article 26(2) of Regulation No 1099/2009 of any 
meaning.  
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(2) The Flemish Government argues that it follows from the case-law of the 
European Court of Human Rights (ECtHR) that freedom of religion does not 
include the right to slaughter an animal according to religious rules (judgment of 
the ECtHR of 27 June 2000, Cha’are Shalom Ve Tsedek v. France, 
CE:ECHR:2000:0627JUD002741795). It also considers that the prohibition of 
slaughter without stunning, in so far as there is interference with freedom of 
religion, is necessary in a democratic society, meets an imperative social need and 
is proportionate to the objectives pursued. The Walloon Government points out 
that the contested provisions pursue a legal objective, namely, the promotion of 
animal welfare.  
(3) The Flemish Government argues that freedom of religious organisation does 
not prevent the government, when organising the operation of the State, from 
intervening in the practice of religion to the extent that this is compatible with 
religious harmony and tolerance. The Walloon Government is of the opinion that 
the legislature did not intend in any way to pass judgement on the religious rites 
and practices of any religion.  
(4) The Flemish Government argues that the general prohibition of the slaughter 
of animals without stunning does not result in a restriction on the right to work. In 
so far as a restriction may be considered to exist, it is justified by the objective of 
preventing all avoidable suffering in the slaughter of animals. The Walloon 
Government considers that it has not been shown that the applicants who are 
employed as butchers would experience the loss of their economic activity 
because the provisions in question do not apply a criterion based on nationality or 
the State of origin and because the objective of pursuing animal welfare is 
specifically mentioned in Article 13 TFEU. It also argues that restrictions on the 
free movement of goods can be justified on the basis of mandatory requirements 
such as the protection of the environment.  
(5) The Flemish government argues that there is no question of discrimination. In 
the alternative, it argues that the fact that the Decree of 7 July 2017 does not 
distinguish between adherents of the Jewish faith and those who are not subject to 
specific dietary laws is reasonably justified because numerous scientific studies 
have shown that the slaughter of animals without prior stunning seriously 
compromises animal welfare. As regards the difference in treatment in relation to 
hunting, fishing and the control of harmful organisms, it considers that such 
activities are not comparable to those of the applicants since, given the nature of 
such activities, it is impossible to comply with an obligation of prior stunning.  
As regards the argument that Jewish and Muslim believers are being discriminated 
against, the Walloon Government argues that the contested provisions are 
appropriate to achieving the intended objective of animal welfare and that the 
difference in treatment alleged by the applicants is reasonably justified. As regards 
the difference in treatment relating to hunting, fishing and the control of harmful 
organisms, it argues that that context is different from that concerning the 
slaughter of animals.  
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6 LI argues, in essence, that the contested decree does not infringe freedom of 
religion because the Jewish faith contains no prohibition of the slaughter of 
animals with stunning. In addition, he argues that any difference in treatment 
between killing animals during hunting and fishing, on the one hand, and 
slaughtering in accordance with religious rites, on the other, is justified because in 
the first case there is no possibility of stunning the animal in advance. 
7 The vzw Global Action in the Interest of Animals argues, in particular, that the 
contested decree does not infringe the principle of the separation of Church and 
State, respects freedom of religion and is proportionate to the objective pursued, 
namely the removal of unnecessary suffering and pain in animals.  
8 The bvba Kosher Poultry and others emphasise that the slaughter of animals in 
accordance with Jewish religious rules is more animal-friendly than regular 
slaughter methods. Furthermore, the exception to the requirement of slaughter 
with stunning provided for in Regulation No 1099/2009 is aimed at ensuring that 
freedom of religion is respected.  
Brief summary of the reasons for the referral 
Question 1 
9 Article 3 of the Decree of 7 July 2017 provides that vertebrate animals may only 
be killed after prior stunning. Exceptions to this are force majeure, hunting or 
fishing and the control of harmful organisms. That article also stipulates that when 
animals are slaughtered using special methods required for religious rites, the 
stunning must be reversible and the death of the animal must not result from 
stunning. In other words, the Decree of 7 July 2017 provides for a ban on ritual 
slaughter without stunning.  
10 EU law also imposes restrictions on slaughtering practices. Thus, in accordance 
with Regulation No 1099/2009, when slaughtering, it is, in principle, compulsory 
to stun the animals concerned. That obligation is contained in Article 4(1) of that 
regulation, which provides that ‘animals shall only be killed after stunning in 
accordance with the methods and specific requirements related to the application 
of those methods set out in Annex I’. Ritual slaughter without prior stunning is 
allowed as an exception. In fact, Article 4(4) of Regulation No 1099/2009 
provides that, in the case of animals subject to particular methods of slaughter 
prescribed by religious rites, the requirements of Article 4(1) of that regulation are 
not to apply provided that the slaughter takes place in a slaughterhouse. That 
exception is based on the principle of freedom of religion, guaranteed by the 
Charter.  
11 The referring court observes that, in accordance with point (c) of the first 
subparagraph of Article 26(2) of Regulation No 1099/2009, Member States have a 
certain degree of policy freedom to adopt national rules with regard to religious 
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slaughter aimed at ensuring more extensive protection of animals than those 
contained in the regulation. The second subparagraph of Article 26(2) requires 
Member States to bring those national rules to the attention of the Commission, 
which, according to the referring court, has happened.  
12 By its first question referred for a preliminary ruling, the referring court in essence 
wishes to know from the Court of Justice whether the permission contained in 
Regulation No 1099/2009 for Member States to provide more extensive protection 
for animals can be interpreted as meaning that Member States may introduce a 
general ban on slaughter without stunning, as contained in the Flemish decree. 
After all, one possible interpretation is — as various applicants claim — that 
Member States of the European Union cannot use point (c) of the first 
subparagraph of Article 26(2) of Regulation No 1099/2009 to render ineffective 
the exception to the obligation of slaughtering with stunning contained in 
Article 4(4) of the regulation. 
Question 2 
13 By its second question referred for a preliminary ruling, the referring court wishes 
to know whether, if the first question is to be answered in the affirmative, point (c) 
of the first subparagraph of Article 26(2) of the aforementioned regulation, in the 
interpretation referred to in the first question, is contrary to Article 10(1) of the 
Charter, according to which everyone has the right to freedom of religion.  
14 The referring court states, first of all, that the exception to the principle of the 
obligation to stun animals before slaughter provided for in Article 4(4) of 
Regulation No 1099/2009 is based on the principle of freedom of religion, as 
guaranteed by Article 10(1) of the Charter.  
15 However, according to the referring court, Member States may derogate from the 
aforementioned exception. After all, point (c) of the first subparagraph of 
Article 26(2) of Regulation No 1099/2009 authorises Member States, with a view 
to promoting animal welfare, to derogate from the provision contained in 
Article 4(4) of that regulation. In that regard, no limits are specified within which 
the Member States of the European Union are required to remain.  
16 The referring court observes that the question therefore arises as to whether point 
(c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009 may be 
interpreted as authorising Member States of the European Union to adopt national 
rules such as those contained in the contested decree, and whether that provision, 
if interpreted in that way, is compatible with freedom of religion, as guaranteed by 
Article 10(1) of the Charter. 
Question 3 
17 Several applicants submit that if point (c) of the first subparagraph of 
Article 26(2) of Regulation No 1099/2009 is interpreted as allowing Member 
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States of the European Union to take measures such as those contained in the 
contested decree, then that provision is contrary to the principle of equality and 
non-discrimination, as guaranteed by Articles 20 and 21 of the Charter, and the 
principle of religious diversity, as guaranteed by Article 22 of the Charter. 
18 The referring court notes that Regulation No 1099/2009 provides only for a 
conditional exception to the obligation of prior stunning as regards the killing of 
animals by ritual slaughter methods (Article 4(4), read in conjunction with 
Article 26(2) of Regulation No 1099/2009), whereas the killing of animals during 
hunting, fishing and sporting and cultural events is fully exempt from the same 
obligation (Article 1(3) of Regulation No 1099/2009). 
19 In that regard, the referring court wishes to know whether, if the first question is 
to be answered in the affirmative, point (c) of the first subparagraph of 
Article 26(2), read in conjunction with Article 4(4), of Regulation No 1099/2009 
is contrary to Articles 20, 21 and 22 of the Charter. In other words, it questions 
whether in that case the regulation causes unjustified discrimination by allowing 
Member States to restrict the exception in the case of religious slaughter, whereas 
the killing of animals without stunning is permitted in hunting, fishing and 
sporting or cultural events.