Religious Slaughtering and Organic Labels: Œuvre d’assistance aux bêtes d’abattoirs

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Abstract: In Œuvre d’assistance aux bêtes d’abattoirs (judgment of 26 February 2019, case C-497/17 [GC]) the Court of Justice held that the EU organic label cannot be placed on meat products if the animal has been slaughtered in accordance with religious rites, when the animal was not stunned before killing. According to the Court, this is not compatible with the high animal welfare standards of EU legislation.

Keywords: animal welfare – Art. 13 TFEU – organic farming label – religious rites – halal – animal protection.
 

I. Introduction

In a Grand Chamber ruling of 26 February 2019,[1] the Court of Justice clarified that an (EU-)organic farming logo may not be placed on meat derived from animals that have been slaughtered in accordance with religious rites (“halal”).[2] Despite the little interest the media and the legal doctrine have shown towards this decision, it is of great importance for the future interpretation and application of the horizontal clause on the protection of animals (Art. 13 TFEU).

The judgment’s explicit recognition of the significance of EU standards on animal welfare, when issuing biological and organic labelling, is without doubt a major step forward for animal protection. With this judgment, the Court followed its recent case law in Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen,[3] Zuchtvieh,[4] and European Federation for Cosmetic Ingredients,[5] where it recognized the importance of animal welfare and its potential to justify infringements of other legal interests. In Œuvre d’assistance aux bêtes d’abattoirs the Court, however, gave a misleading idea of animal welfare standards in regard to slaughter. It further expanded wrongfully the requirements for an organic farming indication. The Court provided a general reminder that animal welfare legislation must be interpreted in the light of Art. 13 TFEU, which obliges Member States as well as the EU-institutions to pay full regard to animal welfare.

The following note summarises the background and facts of the case, followed by an overview of the judgment itself. Finally, the important aspects of the case are determined and commented on.

II. Background and facts

On 24 September 2012, the Œuvre d’assistance aux bêtes d’abattoirs (OABA) requested le Ministre de l’Agriculture, de l’Agroalimentaire et de la Forêt (Minister) to end the advertising and marketing of beef products which were produced by “Tendre France”. Their products were certified as “halal” as well as “organic farming” in accordance with EU secondary law, in particular Regulation 834/2007[6] and Regulation 899/2008.[7] In addition, OABA submitted to the Institut national de l’origine et de la qualité (INAO) the request to exclude beef which has been derived from animals slaughtered, without prior stunning, from organic farming labels. This request targeted, in principle, animals which are slaughtered in conformity with religious rites. Following the implicit refusal of the requests by both entities, OABA brought an action before the Conseil d’État. The Conseil rejected the claims for annulment of the national regulatory authority’s refusal to prohibit the use of the indication “organic farming” for beef products derived from animals which have been slaughtered without prior stunning. According to the Conseil, the issuance of an EU-organic farming label was governed comprehensively by EU law.[8] The EU legislation at hand defined the rules on organic farming exhaustively. Thus, the regulatory authority lacked jurisdiction to lay down national provisions reiterating, clarifying or supplementing that legislation.[9] The Conseil d’État referred certain aspects of the matter to the tribunal administrative de Montreuil, which dismissed them by judgment of 21 January 2016.

Subsequently, OABA appealed against the decision of the tribunal administrative before the cour administrative d’appel de Versailles. OABA supported its claim by referring to “the high animal welfare standards” established in Arts 3 and 5 Regulation 834/2007 which are said to be violated by slaughtering animals without prior stunning. Additionally, the certification issued to meat as “halal” and “organic farming” at once may result in a breach of the principle of consumer confidence in organic products; consumers expect high animal welfare standards when it comes to meat products using an organic farming indication. The defendants countered that the applicable EU legislation does not define slaughter methods which are compatible with high standards of “animal welfare”. To support their arguments the Minister and INAO referred to Regulation 1099/2009 on the protection of animals at the time of killing[10] which shall be linked with the two already mentioned regulations. This regulation allows killing in conformity with religious rites explicitly as long as certain animal welfare standards are respected.

The cour administrative d’appel decided to stay proceedings and referred the matter to the Court of Justice. In particular, it posed the following question: In EU law, does beef qualify for the label “organic farming” when derived from animals which have been slaughtered in accordance with religious rites without first being stunned and when the slaughter is conducted according to the applicable EU legislation?[11]

III. Judgment

After some remarks concerning the nature of the organic farming label in question, which essentially referred to the “organic logo” of the EU for the purposes of Art. 25 Regulation 834/2007 and Art. 57 Regulation 889/2008, the Grand Chamber held, first, that Regulation 834/2007 and Regulation 889/2008 had to be linked with Regulation 1099/2009. In addition, the EU legislation concerning organic farming labels had to be read in the light of Art. 13 TFEU.[12] Second, Arts 3 and 14, para. 1, let. b), viii, of Regulation 834/2007 were to be interpreted as not authorising the placing of an organic farming indication on products which derive from animals which have been slaughtered in accordance with religious rites without prior stunning.[13]

The Court based its conclusion on a link between the regulations concerning the organic farming indication and Regulation 1099/2009 on the protection of animals at the time of killing. According to the Court, Regulation 834/2007 must not be interpreted without including the relevant provisions of Regulation 1099/2009. This derived especially from the fact that Regulation 834/2007 on organic production and labelling of organic products and its implementing Regulation 899/2008 did not define expressly the methods for slaughtering of animals in order to qualify for an organic label.[14] Regulation 1099/2009, however, gave the necessary insights concerning this matter. Hence, the three regulations had to be read in unity.[15]

The Court highlighted that the production of organic (meat) products constitutes an overall system of farm management and food production: “A sustainable system for agriculture that […] respects high animal welfare standards” should be ensured not only in terms of breeding, husbandry and handling of the animals, but also concerning their killing.[16] According to the Court, this includes the respect of high animal welfare standards during slaughter, namely by using the “most painless” method (para. 36, 38, 44). As laid down in Art. 3, Regulation 1099/2009, the animal’s pain, distress and suffering should, therefore, be reduced to a minimum during killing. In this context, the Court further referred to Art. 4, para. 1, Regulation 1099/2009, which stipulates that animals shall only be slaughtered after stunning to allow for a “painless” killing. It stressed that “to ensure the avoidance of evitable suffering for the animal, stunning techniques are to be used”.[17] Other slaughter methods than the ones embedded in Arts 3 and 4, para. 1, Regulation 1099/2009 did not meet the requirements for the “most painless” slaughter.[18]

Despite the Court’s recognition of the exception laid down in Art. 4, para. 4, Regulation 1099/2009, where killing in accordance with religious rites is allowed if performed in a professional slaughterhouse,[19] the Court held that this form of slaughter was insufficient given the animal’s pain during the slaughter. It rather “minimised” the animal’s suffering; however, it did not keep it to a “minimum” as required by Art. 14, para. 1, let. b), viii, Regulation 834/2007. This “minimum” of pain required the use of a pre-stunning method in order to make the animal lose consciousness and sensibility. The Court implied that the methods of slaughter prescribed by religious rites according to Art. 4, para. 4, Regulation 1099/2009 are not of equal value in terms of ensuring a high level of animal welfare at the time of killing in comparison to methods where pre-stunning is applied. Due to the insufficient proof of the protection of animal welfare, this kind of religious slaughter did not fulfil the high animal welfare standards required for the issuance of an organic label in accordance with EU law. Hence, only the methods defined in Art. 4, para. 1, Regulation 1099/2009 were capable of reducing the animal’s suffering to a minimum.[20]

Further, the Court touched upon consumer confidence. Consumers should be reassured that products bearing the label “organic farming” have been obtained in observance of the highest animal welfare standards, which include stunning prior to the slaughtering of an animal for the food production chain.[21]

Finally, it should be acknowledged that the judgment under consideration did not relate directly to the question of interference with the freedom of religion by the denial of access to organic labelling for “halal” meat.[22] A potential infringement of the freedom of religion was neither addressed by the national court nor by the Court of Justice. Though the judgment may have an immense influence on the relation between animal protection and religious freedom in the future, this relation shall not be further elaborated.

IV. Comment
IV.1. The misleading idea of “organic slaughtering”

To determine whether the production of meat qualifies for an organic farming indication several requirements have to be met. In Œuvre d’assistance aux bêtes d’abattoirs, the Court focused especially on the compliance with “high animal welfare standards” which are to be ensured during the killing of an animal (Art. 2, let. I), Regulation 834/2007).[23] However, neither the Regulation 834/2007 nor the Regulation 889/2008 define when a slaughtering method complies with these “high animal welfare standards”. The Court of Justice referred to the Regulation 1099/2009 which lays down general rules governing the slaughter of animals, in particular those being killed for food production (Art. 1, para. 1, Regulation 1099/2009).[24] In this regard, the Court followed the argument of AG Wahl.

In his Opinion, the AG outlined that Art. 1, para. 4, Regulation 834/2007 clarifies that the regulation has to be applied without prejudice to other provisions that come within its scope, i.e. Regulation 1099/2009.[25] Despite the lack of an explicit link between the different regulations, the recourse to the Regulation 1099/2009 is convincing and necessary for the interpretation of the legislation concerning organic farming indications.

While acknowledging this link the Court, however, ignored widely the exception laid down in Art. 4, para. 4, Regulation 1009/2009. Whereas Art. 4, para. 1, Regulation 1009/2009 provides for the general obligation to stun an animal before the killing in order to spare any avoidable pain, distress or suffering – stunning leads to the loss of consciousness and sensibility – (Art. 3, para. 1, and recital 2), its para. 4 allows for an exception. In case the animal is subject to slaughter in accordance with religious rites, the requirements of para. 1 do not apply. In order to still ensure high animal welfare standards, the killing has to be performed in a certified slaughterhouse.[26] The regulation indeed follows the tenor that the use of stunning techniques may reduce pain or suffering to an animal during slaughter and are, therefore, to be used (recital 2, Regulation 1099/2009). However, the EU legislator also acknowledged in the regulation’s recitals the potential pain and suffering provoked by the stunning method itself (recital 2, Regulation 1099/2009). Against this background, and in the light of the freedom of religion, which would be heavily infringed should religious slaughter be absolutely prohibited, both slaughter methods remain permissible as long as they fulfil certain high standards of animal welfare and protection (recital 18 Regulation 1099/2009). Hence, both forms of slaughtering are permissible.

Nevertheless, in its judgment the Court introduced a “hierarchy” between the different methods of slaughter defined in Art. 4 Regulation 1099/2009. According to the Court, ritual killing without prior stunning falls short in comparison to other killing methods in regard to the minimisation of the animal’s pain and suffering.[27] As ritual slaughter without prior stunning allows only for a “minimisation” of suffering, but not for the “minimum” of pain and suffering, it is less “animal friendly” than other forms of slaughter which include stunning methods (para. 49). In doing so the Court overlooked that, in fact, the provision does not assess the “animal friendliness”[28] of the different forms of killing nor does it define a hierarchy. Instead, Art. 4, Regulation 1099/2009 creates a general framework for slaughter methods that shall be considered in conformity with the EU’s (minimum) animal welfare standards (recitals 2 and 18 Regulation 1099/2009).[29] Ritual slaughter follows (in principle) the same standards concerning animal welfare as all other forms of slaughter; it is permissible as long as it ensures the limitation of the suffering of the animal to a minimum (recital 2 Regulation 1099/2009). Coherently – as AG Wahl pointed out in his opinion – it must be acknowledged that there is no “one regime” of animal welfare protection, but there can be two existing side by side which both uphold a high level of animal welfare: the general regime and the exceptional regime that includes ritual slaughter without pre-stunning.[30] Both regimes require the person in charge of the slaughtering to comply with high animal welfare standards and take necessary actions in order to reduce animal suffering to a minimum during slaughter. In order to meet these standards, the person in charge has to show a certain expertise in slaughtering techniques;[31] additionally, “religious” slaughter has to be performed in a certified slaughterhouse. These requirements allow for tight controls of the killing methods, the qualification of the person in charge as well as the compliance with animal welfare standards during the process of slaughter for food production within the facility.[32]

Consequently, the “rule” – killing including prior stunning – and the “exception” – killing in accordance with religious rites without prior stunning – are both permissible under the Regulation 1099/2009, when they comply with the provisions ensuring high animal welfare standards.

IV.2. New conditions for organic farming labels

The Court required the verification of the performance of stunning prior to slaughter in order to qualify for an organic farming label.[33] Meat produced in accordance with religious rites, which do not include pre-stunning, is thereby excluded from the EU’s organic label.

As stated above, neither the Regulation 834/2007 nor the Regulation 899/2008 define the method of slaughter as a requirement for placing an organic label on meat products, but are designed to ensure compliance with high animal welfare standards in general. To declare the certification of “halal” incompatible with the organic farming indication as soon as an animal was not pre-stunned, equates to introducing a new requirement, which is to be met in order to receive the label. As the national court in the case at hand pointed out, EU secondary legislation concerning the organic farming indication is exhaustive. Therefore, further conditions that do not appear within the provisions must not be imposed.[34] The authorising body is required to issue an organic farming label as soon as the requirements laid down in the Regulation 834/2007 and the Regulation 899/2008 are fulfilled. The request for an additional (unwritten) condition which is not provided for in the EU secondary legislation in regard to the issuance of the organic label exceeds the authority’s – and the Court of Justice’s – competence.

IV.3. Art. 13 TFEU and religious rites

In the present judgment the Court indicated that meat which was derived in accordance with religious rites – when performed without prior stunning – cannot fulfil high animal welfare standards.[35] It implied that “halal slaughter” in principle is not in conformity with the legal framework of animal protection the EU provides. Even though the Court mentioned Art. 13 TFEU only in passing, the provision acted as main source of interpretation for animal welfare standards.[36] Art. 13 TFEU obliges the Union and the Member States to take full account of the welfare of animals as “sentient beings” when defining and implementing Union policies in the fields of agriculture, fisheries, transport, the internal market, research, technological development and space, while respecting the laws, regulations and administrative provisions and national practices of the Member States.[37] The accommodation of animal welfare needs has to respect, however, the Member States’ religious rites and heritage as well as cultural practices (Art. 13 TFEU). The needs of animal welfare are, therefore, to be embedded in a domestic context when designing and applying animal welfare law.[38] The provision clarifies that the EU does not prioritize animal welfare considerations per se, but only within the limits provided by the article.[39] Consequently, animal protection may have to yield in the implementation and application of an EU legal act on animal welfare due to the customs and traditions of the Member States.[40]

Prima facie, Art. 13 TFEU becomes a (potentially general) justification for the “devaluation” of certain slaughtering methods in accordance with religious rites in relation to organic label indications in the case at hand. By questioning the (general) compatibility of religious slaughter with animal welfare standards the Court prioritises animal welfare needs vis-à-vis the free exercise of religion. This is not only in direct contrast with recital 18, Regulation 1009/2009 which underlines that the derogation from stunning animals prior to slaughter should be maintained in order to respect the freedom of religion, but also with Art. 13 TFEU which allows for the maintenance of religious rites in national law.[41] Considering other more recent judgments regarding Art. 13 TFEU,[42] in which the Court of Justice also implied the priority of the horizontal clause on animal protection vis-à-vis the exercise of fundamental freedoms, i.e. freedom of religion,[43] the Court supported this approach in the judgment at hand. This presents, however, a risk that the judgment will likely serve as authority to justify priority of animal welfare over religious freedom in future cases. Whether the present judgment really paves the way for future preference in conflicts between animal welfare and religious freedom remains, however, to be seen.

V. Final remarks

Despite the preceding criticism the judgment in Œuvre d’assistance aux bêtes d’abattoirs is, in general, a welcome victory for animal welfare within the EU and joins a by now rather long list of cases which have been ruled in favour of animal protection.[44] The steps taken by the Court towards high animal welfare standards within the EU and the guarantee of their application are to be highly appreciated and are necessary in order to render operational the horizontal clause on the protection of animals. The still rather young provision depends on decisions like the one at hand in order to become effective. A general priority of Art. 13 TFEU should, however, be avoided. Nevertheless, the Court should refrain from defining “new” substantive law in order to make effective these high animal welfare standards in EU secondary law or even national law. Additional obligations and conditions, which are not provided for in EU secondary legislation, should not be developed single-handed by the Court.

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European Papers, Vol. 4, 2019, No 1, European Forum, Insight of 6 May 2019, pp. 297-305
ISSN
2499-8249 - doi: 10.15166/2499-8249/294

* PhD Candidate and Assistant, Institute of European Law, University of Fribourg, lena.hehemann@unifr.ch.

[1] Court of Justice, judgment of 26 February 2019, case C-497/17, Œuvre d’assistance aux bêtes d’abattoirs [GC].

[2] Meat can be labelled “halal“ if the animal was slaughtered in the manner prescribed by Islamic law (dhabīḥah). This kind of ritual slaughter requires a swift, deep incision with a sharp knife on the throat, cutting the wind pipe, jugular veins and carotid arteries. This results in the drainage of all blood. It used to be performed without prior stunning of the animal; however, in view of the raising concerns regarding animal welfare the majority of animals being killed “halal” are stunned before in many (European) countries. In the EU, in 2012, no more than 8% of bovine animals were killed without stunning: ec.europa.eu. On the different aspects of halal slaughter in Arabic countries, see A. Benzerthia, B. Kieronczyk, M. Rawski, A. Josefiak, Cultural and practical aspects of halal slaughtering in food production, in Medcycna Weterynaryjna, 2018, p. 371 et seq.; A. Fuseini, G. Knowles, P.J. Hadley, S.B. Wotton, Halal stunning and slaughter: Criteria for the assessment of dead animals, in Meat Science, 2016, p. 133 et seq. On pre-stunning of “halal” meat, see A. Fuseini, G. Knowles, P.J. Hadley, S.B. Wotton, Food and companion animal welfare: the Islamic perspective, in CAB Reviews, 2017, p. 1 et seq.

[3] Court of Justice, judgment of 29 May 2018, case C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen.

[4] Court of Justice, judgment of 23 April 2015, case C-424/13, Zuchtvieh.

[5] Court of Justice, judgment of 21 September 2016, case C-592/14, European Federation for Cosmetic Ingredients.

[6] Council Regulation (EC) 834/2007 of 28 June 2007 on organic production and labelling of organic products.

[7] Council Regulation (EC) 889/2008 of 5 September 2008 on rules governing organic production, labelling and control. Regulations 834/2007 and 889/2008 define the requirements for the qualification of the label “organic farming” and “organic production”; cf. recitals 1, 3, 5, 17, 22 and Arts 1, 3, 14 of Regulation 834/2007; recital 10 and Art. 18 of Regulation 889/2008.

[8] Decision No 365447 of 20 October 2014 (FR:CESSR:2014:365447.20141020).

[9] Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 19.

[10] Council Regulation 1099/2009 of 24 September 2009on the protection of animals at the time of killing.

[11] See in general for the discussion whether Art. 13 TFEU allows for the infringement of the exercise of religious freedom S. Horanyi, Das Schächtverbot zwischen Tierschutz und Religionsfreiheit, Basel: Helbing & Lichtenhahn, 2004; C.M. Zoethout, Ritual Slaughter and the Freedom of Religion: Some Reflections on a Stunning Matter, in Human Rights Quarterly, 2013, p. 651 et seq.; P. Watson, P. Oliver, Is the Court of Justice of the European Union Finding its Religion?, in Fordham International Law Journal, 2018, p. 847; K. Sowery, Sentient beings and tradable products: The curious constitutional status of animals under Union law, in Common Market Law Review, 2018, p. 55 et seq.

[12] Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., paras 34 and 44.

[13] Ibid., para. 49.

[14] Ibid., para. 41.

[15] Ibid., para. 42.

[16] Ibid., para. 36.

[17] Ibid., para. 46.

[18] Ibid., para. 49.

[19] See Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, cit., para. 59 et seq., where the Court ruled that religious slaughtering shall only be permitted in properly authorised slaughterhouses.

[20] Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 36.

[21] Ibid., para. 56.

[22] Opinion of AG Wahl delivered on 20 September 2018, case C-497/17, Œuvre d’assistance aux bêtes d’abattoirs [GC], para. 31.

[23] Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 38 et seq. Cf. Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs, cit., para. 31.

[24] Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 36.

[25] Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs, cit., para. 70.

[26] Cf. recitals 2, 15, 18, 44, and Art. 4, para. 4, Regulation 1099/2009; Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, cit., paras 53 and 58 et seq.

[27] The “modern” production of halal meat often involves stunning methods prior to slaughter, though. See A. Fuseini, G. Knowles. P.J. Hadley, S.B. Wotton, Halal stunning and slaughter, cit., p. 132; A. Fuseini, G. Knowles. P.J. Hadley, S.B. Wotton, Food and companion animal welfare, cit., p. 1 et seq.

[28] As a general side note, it shall be acknowledged that there is no more or less animal friendly way of slaughter. The only option allowing for “animal friendly slaughter” is no slaughter at all; see Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 81 et seq.

[29] Following the Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 74 et seq., in particular para. 77. See the documents of the Commission ec.europa.eu. This also has been indicated by the Court of Justice in Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, cit., para. 56 et seq.; there, however, the Court of Justice mainly addressed the question of animal protection and religious freedom. See A. Peters, De-humanisation? Court of Justice, Liga von Moskeeën en islamitische Organisaties Provincie Antwerpen on Religious Slaughter, in Ejil: Talk!, 26. June 2018, www.ejiltalk.org; P. Watson, P. Oliver, Is the Court of Justice of the European Union Finding its Religion?, cit., p. 847 et seq.

[30] Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 81.

[31] These requirements are defined in Art. 14 et seq. Regulation 1099/2009. See recitals 8 and 28 et seq. Regulation 1099/2009.

[32] Cf. recitals 8, 9, 28 et seq. Regulation 1099/2009.

[33] Following the Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 96 et seq.

[34] Opinion of AG Wahl, Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 101 et seq.; cf. above II.

[35] Œuvre d’assistance aux bêtes d’abattoirs [GC], cit., para. 48 et seq.

[36] Ibid., para. 49.

[37] M. Kotzur, Art. 13 TFEU, in R. Geiger, D.-E. Khan, M. Kotzur (eds), European Union Treaties, Munich-Oxford: C.H. Bech and Hart, 2015, p. 225 et seq.; J.P. Terhechte, Art. 13 TFEU, in H. von der Groeben, J. Schwarze, A. Hatje (eds), Europäisches Unionsrecht, 2015, p. 212 et seq., point 12 et seq.

[38] K. Sowery, Sentient beings and tradable products, cit., p. 55 et seq.

[39] Ibid.

[40] Terhechte, Art. 13 TFEU, cit., point 12 et seq.

[41] M. Kotzur, Art. 13 TFEU, cit.

[42] Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, cit.; European Federation for Cosmetic Ingredients, cit.; Zuchtvieh, cit.; Court of Justice, judgment of 12 July 2001, case C-189/01, Jippes.

[43] See only Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, cit.

[44] Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, cit.; European Federation for Cosmetic Ingredients, cit.; Zuchtvieh, cit.; Jippes, cit.

 

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