Successive scrutiny of the same legislation in Luxembourg and Strasbourg: judgment of the ECtHR in the case of Executief van de Moslims van België and Others v. Belgium

In the case of Executief van de Moslims van België and Others v. Belgium (16760/22 and 10 Others, 13.02.2024), the European Court of Human Rights found that the Belgian law, i.e. the Flemish and Walloon regional decrees, which only allows vertebrates to be put to death in the context of ritual slaughter by using reversible non-lethal stunning, does not breach the freedom of religion enshrined in Article 9 of the Convention. This finding is very similar to the one made by the CJEU on the very same legislation in the case of Centraal Israëlitisch Consistorie van België and Others.

This similarity very well illustrates two important aspects of fundamental rights in Europe today.

First, it shows the importance of a sufficient level of consistency between the jurisprudences at national, Union and Convention level, in view of the fact that the compatibility with fundamental rights of a same piece of legislation can, as in the present case, be checked at three different successive levels, the last one being Strasbourg. As pointed out by the ECtHR, in the case at hand the scrutiny of the same Belgian legislation indeed went all the way from the Belgian Constitutional Court to the CJEU and to the ECtHR. Contradictions or incompatibilities between these levels would have damaged legal certainty as much as the authority of the invoked fundamental rights themselves, quite apart from the difficulties they would have created for the national judges dealing with that kind of issues and subject to all three levels of scrutiny.

Secondly, this case also shows how beneficial it is for the cross-system consistency of the case-law on fundamental rights when the case-law of the ECtHR is taken on board from the beginning of the journey of a case through the judicial instances. Indeed, the last stop of such a case is in Strasbourg and its ultimate benchmark is the Convention, it being understood that this benchmark only represents a minimum protection level which can be raised (Art. 53 of the Convention). From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway.

So there can be no doubt that seeing the CJEU extensively rely in Centraal Israëlitisch Consistorie van België on the Strasbourg case-law and acknowledge its benchmark function by qualifying it as “the minimum threshold of protection” (§ 56; see also this post) greatly facilitated reliance by the ECtHR on the fact that, having regard to the principle of subsidiarity, it should duly take into account the outcome of the “double control” which had already taken place in Brussels and Luxembourg prior to its own scrutiny (§ 112).

Under these circumstances, it came as no surprise that, in a welcome unisono with the CJEU, the ECtHR held that the obligations imposed by the Belgian legislation at stake were not disproportionate and therefore were not in breach of Article 9 of the Convention.