Executief van de Moslims van België and Others v. Belgium: the ECtHR’s perspective on balancing animal welfare with religious freedom

by dr. Elien Verniers

In February, the European Court of Human Rights (ECtHR) delivered a landmark judgment with significant animal welfare implications in Belgium and beyond in the case of Executief van de Moslims van België and Others v. Belgium. The ECtHR decided, in line with the previous judgment of the European Court of Justice (ECJ), to uphold the Flemish (and Walloon) ban on slaughter without prior stunning, as no violation of Article 9 (Freedom of thought, conscience and religion), nor of Article 14 (Prohibition of discrimination) could be identified. This blog post will delve deeper into this judgment and will especially offer an animal welfare viewpoint on this particular topic. However, the aim of this blogpost is not to advocate against religious freedom, but to give more context to the ban and its underlying animal welfare rationale.

Facts

The case was initiated by organisations representing Muslims in Belgium and Belgian nationals of the Muslim and Jewish faiths, challenging decrees of the Flemish and Walloon Region in Belgium which installed a prohibition on animal slaughter without prior stunning. The applicants had already lodged applications with the Belgian Constitutional Court in 2018 and 2019 to set aside these decrees as they held that the prohibition violated their dietary restrictions which they believe to be an integral part of practicing their religion. The Constitutional Court decided to ask the Court of Justice of the European Union (CJEU) for a preliminary ruling. In its judgement of 17 December 2020 the CJEU found that the newly installed prohibition was compatible with Article 10 (on freedom of thought, conscience and religion) of the EU’s Charter of Fundamental Rights. Taking into account the CJEU’s ruling, the Belgian Constitutional Court in September 2021 dismissed the applicants’ appeals against the decrees.

ECtHR rules in favour of animal welfare

Similar to the Belgian Constitutional Court and the CJEU, the ECtHR upholds the Flemish and Walloon ban on animal slaughter without prior stunning. The ECtHR did acknowledge the admissibility of the applicants’ complaints as they indeed could rely on Article 9 of the ECHR since the ritual slaughter of animals falls within the scope of the right to manifest one’s religion as a matter of ‘observance’ within the meaning of Article 9. Next, the ECtHR analysed whether or not there had been an interference with the applicants’ freedom of religion and if so, whether the interference was justified. As will be analysed more in depth hereafter, the ECtHR eventually ruled that there had been an interference, but that this interference was justified.

In addition, the ECtHR also investigated a potential violation of Article 14 of the ECHR, in particular the comparison of (i) Jewish and Muslim believers with hunters and fishermen, (ii) Jewish and Muslim believers with the general population and (iii) Jewish believers with Muslim believers. In its examination of Article 14, the ECtHR reiterated that the compatibility of hunting and fishing with animal welfare was a matter which went beyond the scope of the case (i) and that it was not for the court to rule on the precise content of dietary precepts in religious matters (iii). However, the ECtHR did take into account that the Walloon and Flemish ban on animal slaughter without prior stunning also provided for an alternative stunning method where special slaughter methods prescribed by religious rites were to be used (ii). The ECtHR thus unanimously contented that in each of the three situations no discrimination could be detected. Yet, from an animal welfare point of view at least two discriminations arise. Firstly, the ECtHR attributes a higher level of protection of animal welfare to farm animals compared to wild animals. However, an explanation can be found in a series of European Conventions primarily targeting farm animals which the Council of Europe enacted already in the late sixties and seventies. Examples are the European Convention for the Protection of Animals kept for Farming Purposes and the European Convention for the Protection of Animals for Slaughter. Yet, what is more striking is the different treatment of farmed land animals with farmed fish. The fact that farmed fish are kept in an aquatic environment does not change the fact that they too have welfare requirements which need to be protected. In this regard, the food and safety authority within the European Union (EFSA) has published many scientific opinions discussing the welfare aspects of stunning and killing methods for farmed fish. Also the World Organisation for Animal Health (WOAH) incorporated a chapter (7.3) on welfare aspects of stunning and killing of farmed fish for human consumption in their Aquatic Animal Health Code (2023).

The intertwining of the protection of animal welfare and the concept of public morals

After declaring the applicants’ complaint admissible, the ECtHR noted that  the absence of stunning prior to slaughter constituted an aspect of the religious ritual which attained a certain level of cogency, seriousness, cohesion and importance, and that therefore the new animal welfare provisions of certain Belgian Regions prohibiting ritual slaughter without stunning is an interference with the freedom of religion, protected by Article 9 of the ECHR. Consequently, the ECtHR conducted its three-pronged test to determine whether or not the interference was justified. It was clear that the new Walloon and Flemish ban was expressly prescribed by accessible and foreseeable legislation. The more compelling question was whether the interference also pursued a legitimate aim. To answer this question, the ECtHR for the first time examined if the protection of animal welfare could be linked to one of the aims in Article 9 (2) of the Convention. After all, Article 9 is no absolute right and can be subject to limitations. One of these grounds for limitation pertains to the protection of public morals. It is this limitation ground that the ECtHR used to defend the restriction on the freedom to manifest one’s religion of the present case. This reasoning is not completely new as in EC Seals, the WTO appellate body also accepted an EU import ban on seal products based on animal welfare grounds as part of public morality (Article XX (a) GATT). In the assessment whether the public concern on seal welfare was sufficiently anchored in the morality of European societies it was contented that the legislative history of the EU Seal Regime as well as other evidence convincingly demonstrated that animal welfare is an issue of ethical or moral nature in the European Union. Furthermore, the general exception of public morals within GATT allowed to subsume animal welfare as the EU public animal welfare involved standards of right and wrong. In addition, the ECtHR also relied on the statement of the Belgian Constitutional Court stipulating that: ‘the protection of and respect for the welfare of animals as sentient beings can be regarded as a moral value shared by numerous people in the Flemish and Walloon Region’. As a sidenote, it is worth mentioning that the ECtHR accepts not only Judaism and Islam as convictions protected under Article 9, but its predecessor, the European Commission of Human Rights, has also accepted veganism as a coherent and sincerely-held philosophical conviction (W. v. the United Kingdom, Commission decision of 10 February 1993). In a third step, the ECtHR assessed whether the measures taken were necessary in a democratic society. The ECtHR, as did the CJEU, granted a large margin of appreciation to the Member States as, on the one hand, there existed no clear consensus on this particular topic, and on the other hand, as has also been pointed out by the CJEU, an increasing number of European countries attached much importance to animal welfare as a more recently emerged ethical value. Furthermore, the fact that both Flemish and Walloon legislators had sought a proportionate alternative to the obligation of prior stunning (i.e. reversible non-lethal stunning) and that extensive scientific studies and consultation with interested parties had been carried out, led to the ECtHR’s final conclusion that no violation of Article 9 (nor Article 14) has occurred.

Finally, it is worth noting that two separate opinions were annexed to the judgement. Judge Koskelo, joined by Judge Kūris, expressed a concurring opinion, as did Judge Yüksel. However, neither of these opinions addressed the core topics of religious freedom or animal welfare.

Conclusion

In conclusion, the ECtHR’s judgment represents a nuanced consideration of the intersection between religious freedom and animal welfare. The ECtHR found that the Belgian authorities had struck a fair balance between these competing interests in imposing restrictions on ritual slaughter without outright prohibiting it by providing for an alternative method of reversible stunning. Nonetheless, balancing animal welfare and religious freedom will continue to be a delicate question and the subject of ongoing discussion and concern. To this end, the European Parliament Research Services published in July 2023 a study report on reconciling animal welfare with freedom of religion or belief. Such research can be encouraged to develop a set (legal) framework to deal with balancing competing rights and interests prevalent in a pluralistic society. For now the ECtHR seems to attach great importance to animal welfare as a relatively recent upcoming ethical value in various democratic societies. The Court indeed acknowledged the legitimate aim of promoting animal welfare and preventing unnecessary suffering. It emphasised that while religious freedom is protected under Article 9 (1) of the ECHR it is not absolute and may be subject to limitations to protect the rights and freedoms of others, including the welfare of animals which can be lodged under ‘public morals’ (Article 9 (2)). This decision carries significant implications for the legal and ethical treatment of animals, in particular in the context of religious practices across Europe.