JUSTICE - No. 66

47 Spring 2021 Human rights are not the only consideration in play, since animal welfare is also regarded as an important EU value. The principle of animal welfare was recognized by Article 13 of the Treaty on the Functioning of the European Union (“TFEU”) which provides that [i]n formulating and implementing the Union's agriculture, fisheries […] policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage. Council Regulation (EC) No 1099/2099 of 24 September 2009 on the protection of animals at the time of killing (the “Regulation”) provides the most specific legal framework for the issue in question. Three provisions of the Regulation require special attention: First, Article 4(1) of the Regulation provides that “[a]nimals shall only be killed after stunning.” Second, Article 4(4) of the Regulation provides a clear exception to this general rule: “[i]n the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of paragraph 1 shall not apply provided that the slaughter takes place in a slaughterhouse.” Article 4(4) of the Regulation should have provided full defense for kosher shechita. In fact, this was clearly its intention. The problem is that Article 26(2) of the Regulations – the third provision in play – provides an exception to the Article 4(4) religious rite exception: Member States may adopt national rules aimed at ensuring more extensive protection of animals at the time of killing than those contained in this Regulation in relation to the following fields: […] (c) the slaughtering and related operations of animals in accordance with Article 4(4). A simple reading of Article 26(2) clearly indicates that member states may adopt rules that would ensure more extensive protection of animals without completely banning methods of slaughter prescribed by religious rites. Indeed, this was also the understanding of Advocate General Hogan, and likely also the implicit understanding of the CJEU. If this is the case, we expect that the two have come to different conclusions because they based their analysis on different assumptions regarding kosher shechita. The Opinion of Advocate General Hogan In our view, the key premise on which the entire opinion of Advocate General Hogan (the “Opinion”) was based is to be found in a short paragraph in his preliminary remarks. The Advocate General stated that “a secular court cannot choose in relation to the matters of religious orthodoxy,”and that accordingly, it must be assumed that “prior reversible stunning which does not lead to the death of an animal” does not satisfy “the particular methods of slaughter prescribed by religious rites of both the Muslim and Jewish faiths.”This is so because“there is a significant body of adherents to both the Muslim and Jewish faiths for whom the slaughter of animals without such stunning is regarded by them as an essential aspect of a necessary religious rite.” This statement is central to the legal analysis because without it, there indeed can be no legal justification to using methods which do not grant animals the most extensive protection possible. The Advocate General further stated that Article 26(2) of the Regulation “cannot be read in such a manner” that would result in the“elimination or quasi elimination by Member States of the practice of ritual slaughter” (Opinion, paragraph 67). He emphasized that Article 26(2) “permits the adoption of stricter national rules […] provided that the ‘core’ of the religious practice […] is not encroached upon,” since any other reading“would constitute a limitation on the freedom of religion guaranteed by Article 10(1) of the Charter” (Opinion, paragraphs 70-73). Combining the key premise that the lack of stunning is an essential aspect of a necessary religious rite, with the plain reading of the Regulation and the Charter, could only lead to one conclusion: the Flemish Region was not legally permitted to adopt the Decree (Opinion, paragraphs 77 and 88). The Judgment of the CJEU Surprisingly, the CJEU disagreed. In our view, the CJEU’s key mistake is found in one short sentence: “the interference resulting from such legislation [i.e. from the Decree] is limited to one aspect of the specific ritual act of slaughter, and the act of slaughter is not, by