JUSTICE - No. 66

48 No. 66 JUSTICE contract, prohibited as such” (Judgment, paragraph 61). The CJEU failed (either deliberately or by mistake) to understand that as a result of the Decree, the Jewish religious rite of slaughtering cannot be performed at all by Orthodox Jews. The lack of stunning is not “one aspect of the ritual act”; it is an inherent part of the ability to perform the entire act. Based on this clearly wrong premise, the CJEU also found that the Decree “respects the essence of Article 10 of the Charter” (Judgment, paragraph 61), and is proportional since“Jewish and Muslim believers would still be able to manifest their religion” (Judgment, paragraph 80), since even with prior stunning the death of the animal “will be solely due to bleedings”as required by their religious laws (Judgment, paragraph 75). The CJEU, which is a secular court, thus decided for millions of Jewish and Muslim adherents that they may consume meat produced as a result of slaughter which included prior stunning, contrary to their own deep beliefs and the guidance of their spiritual leaders. It did so because this was the only way to justify the Decree. It is thus clear that even the CJEU understood that a complete prohibition on kosher shechita does not comply with EU law. Hence, to uphold the Decree, the CJEU had to conclude that it does not impose an outright ban on kosher shechita. The CJEU was wrong. It is not for the CJEU to determine for millions of EU citizens their faith and beliefs. It is for the CJEU to protect these faiths and beliefs in accordance with laws of the European Union, specifically Article 10 of the Charter, to which the CJEU paid little respect. Epilogue The legal debate over kosher shechita and other religious rites will not end with this Judgment. It is due to continue. Generally, the legal fight for freedom of religion and the freedom to exercise religious rites will no doubt continue. We would like to suggest the following structure for future legal analysis of the right to practice and observe religious rites, which is protected by Article 10 of the Charter: n The exercise of a religious rite which does not directly conflict with a fundamental right that is protected by the Charter may not be limited, even if such a rite conflicts with certain values or general interests, if the religious rite is necessary and the relevant component is essential to the exercise of that religious rite (the“necessity and essentiality test”). n The question whether the necessity and essentiality test is met shall be considered in light of the views of the adherents of the respective religious faith, and it would be sufficient that the test is met for a significant body of adherents of such faith. In our view, kosher shechita meets the necessity and essentiality test and does not directly conflict with a fundamental right that is protected by the Charter but rather only conflicts with protected values under EU law (animals welfare which is protected by Article 13 of the TFEU). n Any limitation which does not meet this standard would fail (by definition) to respect the essence of the right to practice and observe religious rites, and cannot be considered proportional. n Only when the exercise of a certain religious rite directly conflicts with a fundamental right that is protected by the Charter itself, can a proportional limitation be imposed, in order to protect the rights and freedom of others (see Article 52(1) of the Charter). Indeed, even using this test, certain religious rites may be subject to judicial review – circumcision being the best example coming to mind. This is because it is a religious rite that can be perceived as being in direct conflict with the fundamental right of the integrity of the person (see Article 3 of the Charter). Just like with slaughtering, a significant body of adherents believe that this rite cannot be performed in any way other than the traditional one and are against any additional protection to the child (such as local anesthesia) at the time of the brit. In the eyes of the believers, the brit is of far greater importance than shechita. One does not have to consume meat and one can decide to be vegetarian. However, every Jew is commanded to circumcise his son(s). It is hence a necessary religious rite, with essential components, which prima facie conflicts with a fundamental right, which is protected by the Charter. Nevertheless, in our view circumcision should not be forbidden. There is a legal distinction between shechita and circumcision which necessitates a different analysis. The distinction is found, in our view, in the object in which the religious rite is performed. This is another important consideration for the purpose of our legal analysis. An animal does not have any desire to be consumed by observant Jews. It is indifferent to the beliefs of the person who will consume it. On the other hand, baby boys who are born to Jewish families may have a vested interest to become part of the greater Jewish family.