Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, VZW and Others v Vlaams Gewest.
Date: 2018-05-29
30


It must be recalled from the outset that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it refers to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24, and of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 15).
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It follows that questions referred for a preliminary ruling concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25).
38


As a preliminary point, it must be recalled that the European Union is a union based on the rule of law in which all acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights (judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 60 and the case-law cited).
40


In that connection, it should be pointed out that whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44; of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45; and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 45).
41


The examination of the validity of Article 4(4) of Regulation No 1099/2009, read together with Article 2(k) thereof, requested by the referring court, must therefore be carried out having regard to Article 10 of the Charter (see, by analogy, judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 46 and the case-law cited).
43


In that connection, it must be recalled that, according to settled case-law, the right to freedom of conscience and religion enshrined in Article 10(1) of the Charter includes, inter alia, the freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance (see, to that effect, judgments of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 27, and of 14 March 2017, Bougnauoi and ADDH, C‑188/15, EU:C:2017:204, paragraph 29).
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Furthermore it must be observed that the Charter uses the word ‘religion’ 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 (judgments of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 28, and of 14 March 2017, Bougnauoi and ADDH, C‑188/15, EU:C:2017:204, paragraph 30).
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It follows that that slaughter is covered by the concept of ‘religious rite’ within the meaning of Article 4(4) of Regulation No 1099/2009. Therefore, it falls within the scope of Article 10(1) of the Charter.
55


Thus, it is clear from a combined reading of Article 4(1) and (4) of Regulation No 1099/2009 and Article 2(k) thereof that the practice of ritual slaughter without prior stunning is authorised by way of derogation in the European Union, so long as such slaughter takes place in an establishment which is subject to authorisation granted by the competent national authorities and which, for those purposes, complies with the technical requirements relating to the construction, layout and equipment required by Regulation No 853/2004.
56


In that connection, it must be stated that the derogation authorised by Article 4(4) of Regulation No 1099/2009 does not lay down any prohibition on the practice of ritual slaughter in the European Union but, on the contrary, gives expression to the positive commitment of the EU legislature to allow the ritual slaughter of animals without prior stunning in order to ensure effective observance of the freedom of religion, in particular of practising Muslims during the Feast of Sacrifice.
57


That interpretation is confirmed by recital 18 of Regulation No 1099/2009 which clearly states that that regulation lays down an express derogation from the requirement for stunning animals prior to slaughter, specifically for the purposes of ensuring respect for the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as laid down in Article 10 of the Charter.
63


On one hand, the protection of animal welfare is the main objective pursued by Regulation No 1099/2009 and, in particular, by Article 4(4) thereof, as is clear from the title of the regulation and recital 2 thereof.
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Thus, as the Court has already noted, the importance of animal welfare has resulted, inter alia, in the adoption by the Member States of Protocol (No 33) pursuant to which, in formulating and implementing the European Union’s policies, the European Union and the Member States are to pay full regard to the welfare requirements of animals (see, to that effect judgments of 19 June 2008, Nationale Raad van Dierenkwekers en Liefhebbers and Andibel, C‑219/07, EU:C:2008:353, paragraph 27, and of 23 April 2015Zuchtvieh-Export, C‑424/13, EU:C:2015:259, paragraph 35).
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In that connection, it should be stated from the outset however that, according to settled case-law, the validity of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted and cannot depend on retrospective assessments of its efficacy. Where the EU legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question (judgments of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 50, and of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 50).
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The validity of a provision of EU law is to be assessed according to the characteristics of those provisions themselves and cannot depend on the particular circumstances of a given case (see, to that effect, judgment of 28 July 2016, Ordre des barreaux francophnes and germanophones and Others, C‑543/14, EU:C:2016:605, paragraph 29).
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Thus, the mere fact that the application of Article 4(4) of Regulation No 1099/2009, read together with Article 2(k) thereof, is likely to affect the freedom to practice ritual slaughter in one region of one Member State in particular cannot affect the validity of that provision with regard to Article 10 of the Charter. Since Regulation No 1099/2009 has an impact in all Member States, its validity must be examined taking into account not the particular situation of a single Member State, but that of all EU Member States (see, by analogy, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraph 103 and the case-law cited).