Centraal Israëlitisch Consistorie van België e.a. and Others.
Date: 2020-12-17
However, in accordance with Article 4(4) of that regulation, the obligation to stun does not apply to the slaughter of animals carried out in accordance with particular methods prescribed by religious rites. According to recital 18 of that regulation, that exception is dictated by the objective of respecting freedom of religion, guaranteed in Article 10(1) of the Charter, as the Court noted in the judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others  (C‑426/16, EU:C:2018:335, paragraphs 56 and 57).
In that regard, it should be borne in mind, first of all, that Article 4(1) of Regulation No 1099/2009, read in conjunction with recital 20 of that regulation, lays down the principle that an animal should be stunned prior to being killed and goes so far as to establish this as an obligation, since scientific studies have shown that prior stunning is the technique that compromises animal welfare the least at the time of killing (see, to that effect, judgment of 26 February 2019, Œuvre d’assistance aux bêtes d’abattoirs, C‑497/17, EU:C:2019:137, paragraph 47). As follows from recital 4 of that regulation, the principle of prior stunning provided for in that provision reflects an EU value, namely animal welfare, as now enshrined in Article 13 TFEU, according to which the European Union and the Member States must pay full regard to the welfare requirements of animals, when formulating and implementing animal welfare policy.
That principle of prior stunning meets the main objective of the protection of animal welfare pursued by Regulation No 1099/2009, as is clear from the very title of that regulation and from recital 2 thereof, in accordance with Article 13 TFEU (see, to that effect, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraphs 63 and 64).
Next, Article 4(4) of Regulation No 1099/2009 provides that the principle of prior stunning does not apply to animals subject to particular methods of slaughter prescribed by religious rites, provided that slaughter takes place in a slaughterhouse. Although that provision, read in the light of recital 18 of Regulation No 1099/2009, permits the practice of ritual slaughter in accordance with which an animal may be killed without first being stunned, that form of slaughter is, however, authorised only by way of derogation in the European Union and solely in order to ensure observance of freedom of religion. This is because that form of slaughter cannot eliminate  any pain, distress and suffering on the part of the animal as effectively as slaughter with prior stunning, which, in accordance with Article 2(f) of that regulation, read in the light of recital 20 thereof, is necessary to cause the animal to lose consciousness and sensibility in order significantly to reduce its suffering (see, to that effect, judgment of 26 February 2019, Œuvre d’assistance aux bêtes d’abattoirs, C‑497/17, EU:C:2019:137, paragraph 48).
That derogation is based, as is apparent from recital 15 of Regulation No 1099/2009, on the need to respect the legislative or administrative provisions and customs of the Member States relating, in particular, to religious rites, cultural traditions and regional heritage when formulating and implementing the European Union’s policies on, inter alia, agriculture and the internal market. It thus gives expression, in accordance with Article 10(1) of the Charter, to the positive commitment of the EU legislature to ensure effective observance of freedom of religion and the right to manifest religion or beliefs in practice and observance, in particular for practising Muslims and Jews (see, to that effect, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraphs 56 and 57).
The  Charter uses the word ‘religion’, referred to in that provision, in a broad sense, covering both the forum internum, that is, the fact of having a belief, and the forum externum, that is, the manifestation of religious faith in public, and the Court has already held that ritual slaughter falls within the scope of freedom to manifest religion, guaranteed in Article 10(1) of the Charter (judgment of 29 May 2018, Liga van Moskeeën en Islamitische  Organisaties Provincie Antwerpen and Others, C‑426/16, EU:C:2018:335, paragraphs 44 and 49).
In that regard, it should be borne in mind that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union.  Account must, therefore, be taken of the corresponding rights of the ECHR for the purpose of interpreting the Charter, as the minimum threshold of protection (see, to that effect, judgments of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 72 and the case-law cited, and of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 124). Since it is apparent from the explanations relating to Article 10 of the Charter that the freedom guaranteed in paragraph 1 thereof corresponds to the freedom guaranteed in Article 9 of the ECHR, that freedom must be taken into account for the purpose of interpreting Article 10(1) of the Charter.
It is clear both from the case-law of the Court (see, to that effect, judgments of 17 January 2008, Viamex Agrar Handel and ZVK, C‑37/06 and C‑58/06, EU:C:2008:18, paragraph 22; of 19 June 2008, Nationale Raad van Dierenkwekers en Liefhebbers and Andibel, C‑219/07, EU:C:2008:353, paragraph 27; of 10 September 2009, Commission v Belgium, C‑100/08, not published, EU:C:2009:537, paragraph 91; and of 23 April 2015, Zuchtvieh-Export, C‑424/13, EU:C:2015:259, paragraph 35), and from Article 13  TFEU that the protection of animal welfare is an objective of general interest recognised by the European Union.
In the fourth place, as regards observance of the principle of proportionality, that principle requires that the limitations on freedom to manifest religion, brought about by the decree at issue in the main proceedings, do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by that legislation; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, judgment of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 46 and the case-law cited, and of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332 paragraph 55).
Where several fundamental rights and principles enshrined in the Treaties are at issue, such as, in the present case, the right guaranteed in Article 10 of the Charter and animal welfare enshrined in Article 13 TFEU, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them (see, to that effect, judgment of 19 December 2019, Deutsche Umwelthilfe, C‑752/18, EU:C:2019:1114, paragraph 50 and the case-law cited).
First of all, it must be borne in mind that the prohibition on discrimination is merely a specific expression of the general principle of equality which is one of the fundamental principles of EU law, and that that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgments of 19 October 1977, Ruckdeschel and Others, 117/76 and 16/77, EU:C:1977:160, paragraph 7, and of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23).