Applying the right to freedom of religion under the Charter, having regard to the Convention – judgment of the CJEU in the case of Centraal Israëlitisch Consistorie van België and Others

In the case of Centraal Israëlitisch Consistorie van België and Others (17.12.2020 C-336/19) the CJEU ruled that in order to promote animal welfare in the context of ritual slaughter, Member States may, without infringing the fundamental rights enshrined in the EU-Charter, require a reversible stunning procedure which cannot result in the animal’s death. The CJEU reached this conclusion after striking a balance between freedom of religion, guaranteed by Article 10 of the EU-Charter, and animal welfare, as set out in Article 13 TFEU and given specific expression to in Regulation No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing.

From a Convention perspective, several aspects of the ruling of the CJEU are worth mentioning. They represent interesting steps as regards the methodology to be applied in respect of fundamental rights which the Convention and the Charter have in common.

First, in interpreting Article 10 of the Charter the CJEU draws to a significant extent on the case-law of the European Court of Human Rights relating to Article 9 of the Convention. It did so relying on Article 52(3) of the Charter, in the following terms:

In that regard, it should be borne in mind that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. Account must, therefore, be taken of the corresponding rights of the ECHR for the purpose of interpreting the Charter, as the minimum threshold of protection …. Since it is apparent from the explanations relating to Article 10 of the Charter that the freedom guaranteed in paragraph 1 thereof corresponds to the freedom guaranteed in Article 9 of the ECHR, that freedom must be taken into account for the purpose of interpreting Article 10(1) of the Charter. (§ 56)

The fact that the reference to the corresponding rights of the Convention as the minimum threshold of protection comes after a reminder about the need not to affect adversely the autonomy of EU law and of the CJEU might suggest, apparently for the first time in the Luxembourg case-law, that it is now being accepted that this autonomy cannot lead to the protection of fundamental rights under EU law to fall below the level of protection under the Convention. This would be in keeping with the Explanations relating to Article 52(3) of the Charter, according to which “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.”

Secondly, when it comes to examining the limitations applied in the present case to the exercise of the rights under Article 10 of the Charter, the CJEU stresses in § 58 of the ruling the similarities existing in this regard between the Convention (Art. 9 § 2) and the Charter (Art. 52(1)). Interestingly, and here again, apparently for the first time in the Luxembourg case-law, the CJEU then goes on to indicate that the justification of these limitations should be assessed having regard at the same time to both Article 52(1) and (3) of the Charter:

It is in the light of those considerations that it must be examined whether national legislation, which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, fulfils the conditions laid down in Article 52(1) and (3) of the Charter, read in conjunction with Article 13 TFEU. (§ 59)

Last but not least, the ruling contains another first-time reference which is another step towards the Convention protecting system, i.e. the endorsement of the well-known Strasbourg living instrument doctrine:

Like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. (§ 77)