DID THE E.C.J BUTCHER RELIGIOUS FREEDOM AND ANIMAL WELFARE?
Source : Global Journal Of Animal Law
https://ojs.abo.fi/ojs/index.php/gjal/article/view/1774
Siddhanth Prasad
Lecturer, School of Law
About Author
Mr. Siddhanth Prasad has three years of experience in academia and research primarily in the field of environmental law and policy. He holds an LLM from the University of Cambridge in 2019 and an LLB from the University of Edinburgh in 2018. Mr. Prasad has received a number of academic awards including the Scots Law Society Prize and the Hasties Stable Prize. He was also conferred with university colours at Cambridge for his performances in cricket. He also spent an exchange year at the National University of Singapore in 2016.
At Sai University, Mr. Prasad will be engaged in developing and teaching courses in Law and in research in his area of interest along with fostering engagement with students both in the classroom and outdoors.
INTRODUCTION
The member states of the European Union are not the first and will not be the last to grapple
with the prickly issue of balancing animal welfare against religious freedom.1 Given the
significant constitutional protections enjoyed by the latter across the world, the Court of Justice
for the European Union (“CJEU”) is also unlikely to be the last court to have to untangle the
knots created by the conflict. The decision of the CJEU in Centraal Israëlitisch Consistorie
van België and Others v. Vlaamse Regering (“Centraal”) is thus but the latest episode in the
global saga that is unfolding.2
The role of a court in this conflict, however, is necessarily limited. Unlike the legislature or the
executive, the court’s judicial and moral reach is circumscribed by the facts of any particular
dispute. In a recent article, Jeremy Rovinsky contended that the CJEU in Centraal was deficient
on both counts, that is to say, both in its judicial analysis and in its moral principles.3 Rovinsky
argued that by concurring with the decision of the Flemish Parliament to ban non-stunned ritual
slaughter and in deciding that it would not be discriminatory to not apply the same rules to
cultural and sporting events, the CJEU struck a disproportionate (or to use Rovinsky’s words,
‘no balance’) balance between religious freedom and animal welfare and undercut its own
moral high ground vis-à-vis animal welfare.4
Instead, he argues, it would have been far more
appropriate for the court to reject the ban and counter-propose a labelling initiative that would
help consumers distinguish between stunned and non-stunned meat.
NO BALANCING
The pivotal question in Centraal was whether the obligation to stun animals prior to ritual
slaughter unjustifiably limited the right of Jewish and Muslim believers to freely manifest their
religion.6
In other words, there was no doubt that the obligation constituted an interference with
the freedom contained in Article 10(1) of the European Charter of Fundamental Rights (“the
Charter”) that needed to be closely scrutinized.
Scrutiny under the Charter requires a step-by-step approach taking into consideration the
conditions listed under Articles 52(1) and (3) of the Charter and Article 9(2) of the European
Convention for Human Rights (“ECHR”).7 These broadly require that the limitation be
prescribed for by law, be necessary in a democratic society in pursuance of a legitimate
objective and satisfy the test of proportionality.
DID THE CJEU UNDERCUT ITS OWN MORALITY?
Another question in Centraal was whether the EU legislature infringed the principle of nondiscrimination by not requiring prior stunning for animals killed during hunting and
recreational fishing, or cultural and sporting activities.
26 The court held that the EU did not, on
the ground that these activities resulted in a marginal and economically insignificant production
of meat or animal products and because these were non-comparable situations that warranted
differential treatment.27
Rovinsky argues, however, that this decision undermines the court’s entire premise of animal
welfare. He states, “Whether something is moral or not should not – and does not – depend on
whether it is ‘economically significant’ in the aggregate”.28 He continues by launching a further assault on the court’s moral compass and states, “If a person believes that slaughtering animals
for consumption purposes without pre-stunning is cruel, logic dictates that every such act is
cruel…”.29 This raises the moral question: Is it morally inconsistent for a person who believes
that slaughtering animals without pre-stunning is cruel to reject its extension to all acts of
killing that result in animal produce?
THE LABELLING FALLACY
For Rovinsky, a real and fair balance could be struck by preferring a labelling requirement.35
This presumably is the least restrictive option in Rovinsky’s book. This also happens to be the
course favoured by the Advocate General in his submission to the court.36 The idea is simple.
All meat products should be labelled so that consumers can know with certainty whether the
animal was stunned before slaughter or whether it was not and is kosher or halal compliant.
Such an approach, the Advocate General argues, “is neutral and non-discriminatory” and will
“advance the case of animal welfare by reducing the suffering of animals at the time of killing
while at the same time also protecting freedom of religion”.
CONCLUSION
Did the CJEU in Centraal butcher both religious freedom and animal welfare? Did it in the
process undercut its own morality? Should proponents of animal welfare lament on what could
have been? This article has argued that Rovinsky fails to establish any such case. Perhaps more
disconcertingly, however, his arguments misrepresent the nature of the CJEU’s judgment,
obfuscate crucial distinctions in fact and law, and deflect attention from the real issue at hand.
If Rovinsky fails to make a convincing case in support of his proposition, what then should we
make of the CJEU’s decision?