Article 10 - Freedom of thought, conscience and religion
Article 52 - Scope and interpretation
Key facts of the case
Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel. Reference for a preliminary ruling — Protection of animals at the time of killing — Particular methods of slaughter prescribed by religious rites — Muslim Feast of Sacrifice — Regulation (EC) No 1099/2009 — Article 2(k) — Article 4(4) — Obligation for ritual slaughtering without stunning to be carried out in approved slaughterhouses which satisfy the requirements of Regulation (EC) No 835/2004 — Validity — Charter of Fundamental Rights of the European Union — Article 10 — Freedom of religion — Article 13 TFEU — Respect for national customs with regard to religious rites.
Outcome of the case
In light of the foregoing considerations, I propose that the Court answer the question referred by the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium) for a preliminary ruling as follows:
Examination of the question referred for a preliminary ruling has revealed nothing that could affect the validity of Article 4(4) read together with Article 2(k) of Council Directive (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, in the light of the right to freedom of religion enshrined in Article 10 of the Charter of Fundamental Rights of the European Union and taken into consideration in Article 13 TFEU with reference to animal welfare.
19) The applicants in the main proceedings have argued that, even assuming that Regulation No 1099/2009 is held to apply to the ritual slaughtering of animals during the Islamic Feast of the Sacrifice — which they dispute ( 13 ) — the validity of the rule laid down in Article 4(4) read together with Article 2(k) of the regulation is questionable, inasmuch as, first of all, it infringes the right to freedom of religion protected by Article 10 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and, secondly, it does not respect Belgian customs relating to the religious rites of the Islamic Feast of the Sacrifice, which are guaranteed by Article 13 TFEU.
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21) It was in those circumstances that the Nederlandstalige rechtbank van eerste aanleg te Brussel (Dutch-language Court of First Instance, Brussels) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 4(4), read in conjunction with Article 2(k) of [Regulation No 1099/2009] invalid due to the infringement of Article 9 [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 Flemish Region to meet the annual demand for the ritual slaughter of unstunned animals on the occasion of the Islamic Festival of the Sacrifice, and the costs of converting temporary slaughter plants, approved and monitored by the authorities, for the purpose of the Islamic Festival of the Sacrifice, 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?’
24) The referring court asks about the validity of Article 4(4) read together with Article 2(k) of Regulation No 1099/2009 in view of an alleged infringement of Article 10 of the Charter, Article 9 ECHR and Article 13 TFEU. A limitation on the exercise of the freedom of religion and on national customs relating to religious rites is alleged to flow from the fact that the provisions in question require that animals ritually slaughtered on the occasion of the Islamic Feast of the Sacrifice be slaughtered only in approved slaughterhouses. These are slaughterhouses which have been approved by the competent national authorities and which, to that end, must comply with all ‘specific requirements’ relating to construction, layout and equipment laid down in Annex III to Regulation No 853/2004.
40) It should be observed that the case in the main proceedings raises the question of whether it is possible to contest, by reference to primary law, and in particular the provisions of the Charter and of the TFEU relating to freedom of religion, the obligation for ritual slaughter without stunning to be carried out in an approved slaughterhouse, given the potential financial impact of that obligation on the possibility of performing such slaughter during the Islamic Feast of the Sacrifice.
45) It must be observed that, in the question which it has referred for a preliminary ruling, the national court alludes to Article 10 of the Charter, Article 9 ECHR and Article 13 TFEU.
46) It seems to me that the Court must be permitted to restrict its assessment to the question whether there is a limitation of the freedom of ‘thought, conscience and religion’ enshrined in Article 10 of the Charter.
47) Indeed, as regards the reference to Article 9 ECHR, it is clear from the settled case-law of the Court that, while, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law, and while Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have 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. ( 19 )
48) Therefore, an examination of the validity of secondary EU law may be undertaken solely in the light of the fundamental rights guaranteed by the Charter. ( 20 ) Nevertheless, it is clear from Article 52(3) of the Charter and the explanation relating to Article 10 of the Charter that the right guaranteed by Article 10(1) of the Charter corresponds to the right guaranteed by Article 9 ECHR. It has the same meaning and the same scope. The interpretation given to that right by the European Court of Human Rights (‘the ECtHR’) may therefore have some relevance for, or at least be a source of inspiration for the interpretation of Article 10 of the Charter. Accordingly, the Court has held that the case-law of the ECtHR must be taken into consideration in the interpretation of the Charter. ( 21 )
50) Even assuming that it may be inferred from the order for reference that what is being referred to is in fact the practice followed in the Flemish Region up to 2014 of permitting the use of temporary, unapproved slaughter plants in order to meet the surge in demand for ritual slaughter on the occasion of the Islamic Feast of the Sacrifice, it seems clear, even if that practice could be regarded as a religious custom, that examining it would essentially be the same thing as examining the validity of the regulatory provisions at issue in light of the right to religious freedom referred to in Article 10 of the Charter.
59) I can only agree with the position expressed by the referring court and by most of the interested parties that the ritual slaughter of an animal on the occasion of the Islamic Feast of the Sacrifice is indeed a ‘religious rite’ within the meaning of Article 2(g) of Regulation No 1099/2009 and thus falls within the scope of the right to freedom of religion enshrined in Article 10 of the Charter and Article 9 ECHR, as an expression of religious conviction.
120) In accordance with Article 52(1) of the Charter, any limitation on the exercise of rights recognised by the Charter must be provided for by law and be proportional.
141) In light of the foregoing considerations, I propose that the Court answer the question referred by the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium) for a preliminary ruling as follows:
