JUSTICE - No. 66

46 No. 66 JUSTICE ntroduction On July 7, 2017, the Flemish Region in Belgium promulgated a decree (the “Decree”) amending the Law of August 14, 1986 on the protection and welfare of animals regarding permitted methods of slaughtering animals (the“Law”). The Decree amended Article 15 of the Law to provide that “a vertebrate may only be killed after prior stunning.”The Decree provided for a few exceptions to this general rule. “[A] vertebrate may be killed without prior stunning in the case of hunting or fishing,”and“[i]f the animals are slaughtered according to special methods required for religious rites, the stunning must be reversible […]. ”The Decree essentially prohibited Jewish kosher shechita (as well as traditional Muslim slaughtering, dhabihah), since Jewish halacha — Orthodox law — prohibits the stunning of an animal prior to its slaughter, even if such stunning is reversible. The Central Israelite Consistory of Belgium challenged the conformity of the Decree with EU law. The International Association of Jewish Lawyers and Jurists (IJL) joined the proceedings in the Court of Justice of the European Union (CJEU) on this issue by filing an amicus curiae brief (the “Brief”), which was authored by Professor Joseph Weiler. The Brief advocated against the imposition of an outright ban on Jewish (and Muslim) religious slaughter, while acknowledging the need for lesser restrictive measures that would reduce and minimize animals’ suffering. Gerard William Augustine Hogan, the Advocate General of the European Court of Justice at the time, concluded – as was argued by the IJL – that member states are not permitted to adopt rules which provide for a prohibition of the slaughter of animals without stunning (including reversible stunning) when such slaughtering is taking place as part of a religious rite. 1 In a controversial judgment issued on December 17, 2020 (the“Judgment”), the CJEU disagreed and upheld the Decree. This judgment is disturbing. It legitimatizes the imposition of significant limitations on the freedom of Jews to practice religion, by upholding a prohibition of a religious rite which was observed by Jews in Europe for hundreds of years. Moreover, other EU member states may well now be inclined to adopt such limitations, as well as other restrictions (see below regarding circumcision). It is thus important to understand and analyze the applicable legal framework as well as the legal thinking of both Advocate General Hogan and the CJEU. The Legal Framework Article 10 of The Charter of Fundamental Rights of the European Union (the“Charter”) provides that“[e]veryone has the right to freedom of thought, conscience and religion. This right includes […] 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.” The Charter includes additional provisions aimed at preventing religious based discrimination. Thus, Article 21 of the Charter provides that “discrimination based on any ground such as […] religion or belief […] shall be prohibited.”Article 22 of the Charter further provides that the“Union shall respect […] religious […] diversity.” However, such rights and prohibitions are not absolute. In fact, almost no right is. Accordingly, Article 52 of the Charter provides that [a]ny limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others. Kosher Shechita in Europe Under Legal Threat I Isaac Shragay 1. Mr. Justice Hogan is expected to return to Ireland after being nominated for appointment as Supreme Court judge.