There was a request for a preliminary ruling on Regulation No 1099/2009 by the Dutch-Language Court of First Instance in Brussels, Belgium, to the Advocate General of the EU Court of Justice. This is standard procedure whereby a question is submitted for legal ruling from which a final decision will come next. An analysis of the Advocate-General’s remarks will demonstrate, however, that the preliminary ruling was not neutral as claimed by the council. The justification of ‘temporal difficulties,’ provided to emphasize the neutrality of the regulation seems inadequate in light of the religious practices of the Flemish Muslim community. This commentary will begin by presenting the legal statutes under debate. It will then proceed to an analysis of the Attorney General’s ruling, arguing that his judgment that the Regulation is a “neutral law,” is unsatisfactory. Finally, the assessment will conclude by considering broader discussions in Islamic law on the subject of the Islamic Feast of Sacrifice (‘īd ul-aḍḥa). The analysis will examine these discussions with the aim to offer possible alternative solutions to the issue at hand.
Case C-426/16 was brought forward by various Muslim associations, umbrella organizations of mosques, as well as certain individuals as the main applicants on the one hand, and the Vlaams Gewest or Flemish Region[1] on the other. The dispute arose in the context of the Islamic Feast of Sacrifice (‘īd ul-aḍḥa) where Muslims are required to perform the ritual and obligatory animal sacrifice[2]. Traditionally, and up until 2015, the Belgian government had authorized the establishment of ‘temporary slaughterhouses’ in the communes of that region so as to allow the increased demand for animal slaughter without stunning to be met during this period. Following the Sixth State Reform after the 2010-2011 Belgian government, however, the Flemish minister responsible for animal welfare ruled on September 12, 2014 that from 2015 onward, these temporary slaughterhouses will no longer enjoy authorization to be set up. All slaughtering including ritual sacrifice during ‘īd ul-aḍḥa must henceforth only be performed in approved slaughterhouses.
To understand the legal question and, correspondingly, the Attorney General’s ruling, two pieces of legislation in Regulation 1099/2099 need to be borne in mind. This includes Article 2(k) which stipulates: “-for the purposes of that regulation, ‘slaughterhouse’ means any establishment used for slaughtering terrestrial animals which falls within the scope of Regulation (EC) No 853/2004[3].” The second provision is Article 4(4). The article states, firstly, that “Animals shall only be killed after stunning in accordance with the methods and specific requirements related to the application of those methods set out in Annex I. The loss of consciousness and sensibility shall be maintained until the death of the animal,” and lastly, “ In the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of paragraph 1 shall not apply provided that the slaughter takes place in a slaughterhouse.” The main contention by the applicants is that the recent ruling by the Minister infringes upon the right to freedom of religion which is protected by the Charter and by the European Convention for Protection of Human Rights and Fundamental Freedoms. The disputants also claim that the decision does not respect Belgian customs as they relate to religious rites of ‘īd ul-aḍḥa, a right protected by Article 13 of TFEU. According to the case summary, the inability to perform the sacrifice on the first day of the Feast, according to ritual, prevents many Muslims from fulfilling their duty thus placing a limitation on their religious freedom.
The opinion of the Advocate General was that Regulation No 1099/2099 is a neutral rule and one that cannot be declared invalid for potential infringement upon the right to freedom of religion. For the Advocate, the rule can be upheld on the basis that it applies in any circumstance and in the face of any type of slaughtering chosen (see last part of Article 4)[4]. He notes, “Legislation that applies in a neutral manner, with no conviction to religious convictions, cannot in principle be regarded as a limitation on freedom of religion” (78). The justification for the opinion appears to rest primarily on the reasoning of ‘temporary difficulty’ – the Advocate General presents the dispute in question as one which arises from the occasion of a specific context (the Feast) where surged demand leads to a problem with the capacity of existing slaughterhouses in certain regions. The issue of increased demand also, correspondingly, leads to questions about increased costs and who should bear them if temporary slaughterhouses are to be established.
While the Advocate-General demonstrates a nuanced understanding of the issues arising from the case regarding animal welfare, freedom of religion, and government responsibility, it is not clear how his justification that the problem of insufficient capacity being one of a temporal nature, does not still infringe upon the freedom of Muslims to practice their religious obligations. To make the distinction between ‘temporal difficulties’ and presumably more normative practices seems to be a false dichotomy; what appears to be a temporal problem of temporary slaughterhouses for the government arising from the specific occasion of ‘īd ul-aḍḥa still remains an essential religious feature for Muslims in Belgium, and across the EU. The Court in its decision does not seem to consider the question as to whether the legislation in question disproportionately discriminates against Muslims, a critical, if implicit, issue in this case. Moreover, it is also not self-evident that the rule truly is neutral as claimed by the Council, Commission, and the Attorney General. If the question of types of slaughtering is a contentious one to begin with as the Attorney-General has noted in his discussion of the question of the most humane treatment meted out to animals (98-109), and with religious or human rights groups differing on the most appropriate way to kill animals, then Regulation 1009/2099 might not succeed in remaining completely impartial.
One point that may be a useful consideration is the time frame allowed by Islamic law in the context of ritual sacrifice during ‘īd ul-aḍḥa. This detail does not, it seems, emerge in the case as fully as it could. Whereas the main applicants appear to claim a limitation on their freedom to religion due to the inability to perform the sacrifice on the first day of the Feast, different rulings of madhhabs or schools in Islamic law allow for more flexibility in this regard. In her work, Encyclopedia of Islamic Law: a compendium of the views of the major schools, Laleh Bakhtiar notes the different times allowed for the sacrifice during the Feast of Adha according to the major legal schools. Bakhtiar notes, “As to the occasion of the sacrifice, it is, according to the Maliki, Hanafi, and Hanbali schools, the day of the festival and the two days following it” (218). The Shafii and Jafari schools also seem to hold a similar view (216). The allowances provided by the major schools and Islamic jurists for the time of sacrifice might reduce the scope of the problem faced by both parties involved in the dispute. A longer time period, even one of three days as the majority consensus holds, could alleviate the burden on both Muslims and the institutional, governmental framework of slaughterhouses.
The Flemish government may consider whether a more extended time frame would help facilitate the increased demand to be met by the existing slaughterhouses, making provisions within these institutions if it is not. Alternatively, temporary establishments may prove to be more cost-effective and efficient in this regard, especially considering the annual re-occurrence of the Feast. At the very least it should be clear that an inability to perform the ritual act of sacrifice on the first day of the Feast should not be considered as neglect of religious duty; the question of religious freedom and right to practice freely would only arise in a context where the Muslim community is unable to, or disallowed from, performing the sacrifice after the stipulated three days of the Feast.
[1] One of three regions in the kingdom of Belgium.
[2] See Laleh Bakhtiar’s succinct summary of Islamic legal rulings for this Feast in the Encyclopedia of Islamic Law: “According to the Malikis and the Hanafis, the sacrifice is obligatory for every family once every year. It is, they say, similar to the zakat al-fitr” (215).
[3] I shall not provide the full details and text of Regulation No 853/2004 but for the purposes of this case and commentary it is sufficient to note that the Regulation stipulates specific hygiene rules governing food of animal origin. Moreover, it also notes that Member States may, given certain procedural steps and conditions, adapt the requirements laid down, including those stipulated for the establishment and operations of slaughterhouses.
[4] The manner in which slaughtering is performed is an important detail as Islamic Law does not permit ritual sacrifice to occur through stunning of the animal.