Oeuvre d'assistance aux betes d'abattoirs (Protection of animals at the time of killing - Judgment) [2019] EUECJ C-497/17 (26 February 2019)

Judgment This request for a preliminary ruling concerns the interpretation of Article 13 TFEU, Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1), Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Regulation No 834/2007 (OJ 2008 L 250, p. 1), as amended by Regulation (EU) No 271/2010 of 24 March 2010 (OJ 2010 L 84, p. 19), (‘Regulation No 889/2008’) and Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ 2009 L 303, p. 1). The request has been made in proceedings between the association Œuvre d’assistance aux bêtes d’abattoirs (‘OABA’) and the ministre de l’Agriculture et de l’Alimentation (Minister for Agriculture and Food; ‘the Minister for Agriculture’), Bionoor SARL, Ecocert France SAS (‘Ecocert’) and the Institut national de l’origine et de la qualité (‘INAO’) in relation to an application from OABA for the prohibition of the advertising and marketing of beef products bearing the brand ‘Tendre France’, certified ‘halal’ and showing the indication ‘organic farming’ (‘the “organic farming” indication’). Legal context EU law Regulation No 834/2007 Recitals 1 and 3 of Regulation No 834/2007 state: ‘(1) Organic production is an overall system of farm management and food production that combines best environmental practices, a high level of biodiversity, the preservation of natural resources, the application of high animal welfare standards and a production method in line with the preference of certain consumers for products produced using natural substances and processes. The organic production method thus plays a dual societal role, where it on the one hand provides for a specific market responding to a consumer demand for organic products, and on the other hand delivers public goods contributing to the protection of the environment and animal welfare, as well as to rural development. ... (3) The [EU] legal framework governing the sector of organic production should pursue the objective of ensuring fair competition and a proper functioning of the internal market in organic products, and of maintaining and justifying consumer confidence in products labelled as organic. It should further aim at providing conditions under which this sector can progress in line with production and market developments.’ Article 1 of that regulation, headed ‘Aim and scope’, provides: ‘1. This Regulation provides the basis for the sustainable development of organic production while ensuring the effective functioning of the internal market, guaranteeing fair competition, ensuring consumer confidence and protecting consumer interests. It establishes common objectives and principles to underpin the rules set out under this Regulation concerning: (a) all stages of production, preparation and distribution of organic products and their control; (b) the use of indications referring to organic production in labelling and advertising. ... 3. This Regulation shall apply to any operator involved in activities, at any stage of production, preparation and distribution, relating to the products set out in paragraph 2. ... 4. This Regulation shall apply without prejudice to other [provisions of EU law] or national provisions, in conformity with [EU] law concerning products specified in this Article, such as provisions governing the production, preparation, marketing, labelling and control, including legislation on foodstuffs and animal nutrition.’ Article 2 of that regulation, headed ‘Definitions’, provides: ‘For the purposes of this Regulation, the following definitions shall apply: (a) “organic production” means the use of the production method compliant with the rules established in this Regulation, at all stages of production, preparation and distribution; (b) “stages of production, preparation and distribution” means any stage from and including the primary production of an organic product up to and including its storage, processing, transport, sale or supply to the final consumer, and where relevant labelling, advertising, import, export and subcontracting activities; ... (i) “preparation” means the operations of preserving and/or processing of organic products, including slaughter and cutting for livestock products, and also packaging, labelling and/or alterations made to the labelling concerning the organic production method; ...’ Article 3 of that regulation sets out the objectives of organic production in the following terms: ‘Organic production shall pursue the following general objectives: (a) establish a sustainable management system for agriculture that: ... (iv) respects high animal welfare standards and in particular meets animals’ species-specific behavioural needs; ... (c) aim at producing a wide variety of foods and other agricultural products that respond to consumers’ demand for goods produced by the use of processes that do not harm the environment, human health, plant health or animal health and welfare.’ Article 5 of Regulation No 834/2007, headed ‘Specific principles applicable to farming’, states, in point (h) thereof, that organic farming is to be based on the specific principle of ‘the observance of a high level of animal welfare respecting species-specific needs’. Article 14 of that regulation, the subject of which is ‘livestock production rules’, provides, in paragraph 1: ‘In addition to the general farm production rules laid down in Article 11, the following rules shall apply to livestock production: ... (b) with regard to husbandry practices and housing conditions: ... (viii) any suffering, including mutilation, shall be kept to a minimum during the entire life of the animal, including at the time of slaughter; ...’ Article 25 of that regulation, concerning ‘organic production logos’, states: ‘1. The [organic production logo of the EU] may be used in the labelling, presentation and advertising of products which satisfy the requirements set out under this Regulation. The [organic production logo of the EU] shall not be used in the case of in-conversion products and food as referred to in Article 23(4)(b) and (c). 2. National and private logos may be used in the labelling, presentation and advertising of products which satisfy the requirements set out under this Regulation. 3. The Commission shall, in accordance with the procedure referred to in Article 37(2), lay down specific criteria as regards presentation, composition, size and design of the [organic production logo of the EU].’ Regulation No 889/2008 Recital 10 of Regulation No 889/2008 states that one of the priorities of organic farming is to ‘serve a high level of animal welfare’. Article 57 of that regulation, headed ‘Organic production logo of the European Union ’, provides that: ‘In accordance with Article 25(3) of Regulation [No 834/2007], the organic production logo of the European Union (hereinafter “Organic logo of the EU”) shall follow the model set out in Part A of Annex XI to this Regulation.’ The Organic logo of the EU shall only be used if the product concerned is produced in accordance with the requirements of Regulation [No 2092/91] and its implementing regulations or Regulation [No 834/2007] and the requirements of this Regulation.’ Regulation No 1099/2009 Recitals 2, 4, 18, 20, 24 and 43 of Regulation No 1099/2009 state: ‘(2) Killing animals may induce pain, distress, fear or other forms of suffering to the animals even under the best available technical conditions. Certain operations related to the killing may be stressful and any stunning technique presents certain drawbacks. Business operators or any person involved in the killing of animals should take the necessary measures to avoid pain and minimise the distress and suffering of animals during the slaughtering or killing process, taking into account the best practices in the field and the methods permitted under this Regulation. Therefore, pain, distress or suffering should be considered as avoidable when business operators or any person involved in the killing of animals breach one of the requirements of this Regulation or use permitted practices without reflecting the state of the art, thereby inducing by negligence or intention, pain, distress or suffering to the animals. ... (4) Animal welfare is an EU value that is enshrined in the Protocol (No 33) on protection and welfare of animals annexed to the [EC Treaty] ... The protection of animals at the time of slaughter or killing is a matter of public concern that affects consumer attitudes towards agricultural products. In addition, improving the protection of animals at the time of slaughter contributes to higher meat quality and indirectly has a positive impact on occupational safety in slaughterhouses. ... (18) Derogation from stunning in case of religious slaughter taking place in slaughterhouses was granted by [Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing (OJ 1993 L 340, p. 21)]. Since [EU] provisions applicable to religious slaughter have been transposed differently depending on national contexts and considering that national rules take into account dimensions that go beyond the purpose of this Regulation, it is important that derogation from stunning animals prior to slaughter should be maintained, leaving, however, a certain level of subsidiarity to each Member State. As a consequence, this Regulation respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union . ... (20) Many killing methods are painful for animals. Stunning is therefore necessary to induce a lack of consciousness and sensibility before, or at the same time as, the animals are killed. Measuring the lack of consciousness and sensibility of an animal is complex and needs to be performed under scientifically approved methodology. Monitoring through indicators, however, should be carried out to evaluate the efficiency of the procedure under practical conditions. ... (24) Depending on how they are used during the slaughtering or killing process, some stunning methods can lead to death while avoiding pain and minimising distress or suffering for the animals. Other stunning methods may not lead to death and the animals may recover their consciousness or sensibility during subsequent painful procedures. Such methods should, therefore, be completed by other techniques that lead to certain death before the recovery of the animals. It is, therefore, essential to specify which stunning methods need to be completed by a killing method. ... (43) Slaughter without stunning requires an accurate cut of the throat with a sharp knife to minimise suffering. In addition, animals that are not mechanically restrained after the cut are likely to endure a slower bleeding process and, thereby, prolonged unnecessary suffering. Animals of bovine, ovine and caprine species are the most common species slaughtered under this procedure. Therefore, ruminants slaughtered without stunning should be individually and mechanically restrained.’ Article 2 of Regulation No 1099/2009, headed ‘Definitions’, states: ‘For the purposes of this Regulation, the following definitions shall apply: ... (f) “stunning” means any intentionally induced process which causes loss of consciousness and sensibility without pain, including any process resulting in instantaneous death; (g) “religious rite” means a series of acts related to the slaughter of animals and prescribed by a religion; ...’ Article 3 of that regulation, headed ‘General requirements for killing and related operations’, provides in paragraph 1: ‘Animals shall be spared any avoidable pain, distress or suffering during their killing and related operations.’ Article 4 of that regulation, which concerns ‘stunning methods’, states: ‘1. 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. The methods referred to in Annex I which do not result in instantaneous death (hereinafter referred to as simple stunning) shall be followed as quickly as possible by a procedure ensuring death such as bleeding, pithing, electrocution or prolonged exposure to anoxia. ... 4. 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.’ French law Article L. 641-13 of the code rural et de la pêche maritime (Rural and Maritime Fishing Code), in the version applicable to the dispute in the main proceedings, provides: ‘The “organic farming” indication can be used in respect of processed and unprocessed agricultural products satisfying the requirements under [EU] law for organic production and the labelling of organic products or, where appropriate, the conditions established in technical specifications approved by order of the ministry or ministries concerned at the request of [INAO].’ The dispute in the main proceedings and the question referred for a preliminary ruling On 24 September 2012, OABA sent to the Minister for Agriculture an application requesting that he take measures to end the advertising and marketing of minced beef patties under the ‘Tendre France’ brand, certified ‘halal’ and bearing the ‘organic farming’ indication, the latter being the subject of Article L. 641-13 of the Rural and Maritime Fishing Code and issued by Ecocert, a private-law certification body operating on behalf of and under the authority of INAO. On the same date, OABA requested that INAO prohibit the use of the ‘organic farming’ indication for beef and veal derived from animals slaughtered without first being stunned. Those applications having been implicitly dismissed, OABA brought an action by application of 23 January 2013 before the Conseil d’État (Council of State, France) alleging misuse of powers. By judgment of 20 October 2014, the Conseil d’État (Council of State) held, inter alia, first, with regard to OABA’s application for annulment of the implicit refusal by the Minister of Agriculture and INAO to prohibit the use of the ‘organic farming’ indication for products containing beef and veal derived from animals slaughtered without first being stunned, that EU law defined exhaustively the rules relating to the organic farming of cattle without reference to the adoption of implementing legislation by Member States and without such legislation being necessary in order for that law to be fully effective. Therefore, the French legislature is not competent to enact national provisions reiterating, clarifying or supplementing EU law. Consequently, the Conseil d’État (Council of State) rejected the form of order sought by OABA. Second, the Conseil d’État (Council of State) found that OABA’s application for annulment of Ecocert’s implicit refusal to take measures to end the advertising and marketing of products under the ‘Tendre France’ brand, certified ‘halal’ and bearing the ‘organic farming’ indication, in accordance with Regulation No 834/2007, could not be referred to it as a court of first instance from which no appeal lies. Consequently, it remitted that aspect of the case to the tribunal administratif de Montreuil (Administrative Court, Montreuil, France). By judgment of 21 January 2016, the tribunal administratif de Montreuil (Administrative Court, Montreuil) dismissed that application. OABA brought an appeal against that judgment before the referring court, the cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles, France). In support of that appeal, it claims that the ‘organic farming’ indication must not be placed on products derived from animals that have been slaughtered without first being stunned, as that slaughtering method does not comply with the ‘high animal welfare standards’ established in Articles 3 and 5 of Regulation No 834/2007. In addition, it submits that, although Article 4(4) of Regulation No 1099/2009 establishes a derogation from the principle of stunning prior to slaughter in the context of the ritual killing of livestock, that derogation is included only in pursuance of the objectives of health and equal respect for religious beliefs and traditions. The certification issued by Ecocert to meat certified as ‘halal’ derived from animals slaughtered without first being stunned also constituted a breach of the principle of consumer confidence in organic products. The Minister for Agriculture, Bionoor, Ecocert and INAO all claim that OABA’s application should be dismissed. First, the Minister for Agriculture submits that neither Regulation No 834/2007 nor Regulation No 889/2008 explicitly preclude a derogation, in accordance with Article 4(4) of Regulation No 1099/2009, from the rule requiring animals first to be stunned in the particular context of ritual killing. Second, Bionoor argues that there is no incompatibility, either at an EU law or national law level, between the certification ‘halal’ and the ‘organic farming’ indication, since a requirement that animals be slaughtered after first being stunned is tantamount to an additional condition which is not expressly provided for under positive law. In addition, while EU law does establish the principle that animals are to be stunned before being slaughtered, it is possible to derogate therefrom in pursuance of the freedom to practise one’s religion. Third, both Ecocert and INAO argue that it cannot be inferred from the objectives of Regulation No 834/2007, including the objective of ensuring ‘high animal welfare standards’, that the principle of organic production is incompatible with ritual killing intended to guarantee the freedom to practise one’s religion. Further, the principle of consumer confidence was not infringed, since those using the ‘organic farming’ indication were fully entitled to do so. The referring court notes that no provision in Regulations Nos 834/2007, 889/2008 or 1099/2009 expressly defines the method or methods for the slaughtering of animals that would fulfil the objectives of animal welfare and reduction of animal suffering associated with organic production. Accordingly, the matter of how to answer the claim that the ‘organic farming’ indication is not to be used for meat derived from animals that have been ritually slaughtered without pre-stunning, which is decisive for the outcome of the dispute in the main proceedings, raises a serious difficulty in the interpretation of EU law. In those circumstances, the cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must the applicable rules of [EU] law, deriving from, inter alia: – Article 13 [TFEU], – Regulation [No 834/2007], the detailed rules for the implementation of which are laid down by [Regulation No 889/2008], and – [Regulation No 1099/2009] be interpreted as permitting or prohibiting approval of the use of the European “organic farming” label in relation to products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Regulation [No 1099/2009]?’ Consideration of the question referred As a preliminary point, it should be noted that, when the referring court and the parties to the main proceedings make reference to the European ‘organic farming’ label and the ‘organic farming’ indication respectively, they in fact intend to refer to the Organic logo of the EU for the purposes of Article 25 of Regulation No 834/2007 and Article 57 of Regulation No 889/2008. Accordingly, it is appropriate to consider that, by its question, the referring court asks, in essence, whether Regulation No 834/2007, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as authorising the placing of the Organic logo of the EU on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Regulation No 1099/2009, in particular Article 4(4) thereof. In that regard, it should be noted that recital 1 of Regulation No 834/2007 states that organic production, which is an overall system of farm management and food production, involves ‘the application of high animal welfare standards’, while recital 10 of Regulation No 889/2008 acknowledges that animal welfare is ‘a priority in organic livestock farming’. Article 3(a)(iv) and (c) of Regulation No 834/2007 also provides that organic production seeks, inter alia, to ‘establish a sustainable management system for agriculture that ... respects high animal welfare standards’ and to ‘[produce] a wide variety of foods and other agricultural products that respond to consumers’ demand for goods produced by the use of processes that do not harm ... animal ... welfare’. Article 5(h) of that regulation again states that organic farming involves ‘the observance of a high level of animal welfare respecting species-specific needs’. The obligation to keep animal suffering to a minimum, as established in Article 14(1)(b)(viii) of Regulation No 834/2007, helps to give concrete expression to the objective of ensuring the observance of a high level of animal welfare. By declaring on several occasions its desire to observe a high level of animal welfare in organic farming, the EU legislature intended to highlight that this method of agricultural production is characterised by the observance of enhanced standards with regard to animal welfare in all locations and at all stages of production where it is possible further to improve that welfare. In accordance, in particular, with Article 1(3) of Regulation No 834/2007, that regulation is to apply to any operator involved in activities, at any stage of production, preparation and distribution, relating to the agricultural products set out in paragraph 2 of that provision. Article 2(i) of that regulation states that ‘preparation’ includes, inter alia, the slaughter of animals. In that regard, that regulation merely states in Article 14(1)(b)(viii) that ‘any suffering, including mutilation, shall be kept to a minimum during the entire life of the animal, including at the time of slaughter’. It is true that no provision of Regulation No 834/2007 or Regulation No 889/2008 expressly defines the method or methods for the slaughtering of animals that are most appropriate to minimise animal suffering and, consequently, to give concrete expression to the objective of ensuring a high level of animal welfare. However, Regulation No 834/2007 cannot be read without reference to Regulation No 1099/2009. First, Regulation No 1099/2009 governs animal slaughter specifically. Second, the protection of animal welfare is the main objective pursued by Regulation No 1099/2009, as is clear from the title of the regulation and from recital 2 thereof, and such protection is as required by Article 13 TFEU, pursuant to which, in formulating and implementing the European Union’s policies, the European Union and the Member States are to pay full regard to the welfare requirements of animals (see, to that effect, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others , C‑426/16, EU:C:2018:335 , paragraphs 63 and 64). In that regard, Regulation No 1099/2009 contributes to ‘improving the protection of animals at the time of slaughter’ and encourages ‘stunning methods [that] can lead to death while avoiding pain and minimising distress or suffering for the animals’, as is set out in recitals 4 and 24 respectively. In addition, under Article 3 of Regulation No 1099/2009, ‘animals shall be spared any avoidable pain, distress or suffering during their killing’. That general requirement applicable to the killing of animals is given particular concrete expression in Article 4(1) of that regulation, which provides, first, that ‘animals shall only be killed after stunning’ and, second, that ‘the loss of consciousness and sensibility shall be maintained until the death of the animal’. Thus, Article 4(1) of Regulation No 1099/2009, read in conjunction with recital 20 of that regulation, lays down the principle that an animal should be stunned prior to its death and goes so far as to establish this as an obligation. As the Advocate General stated, in essence, in point 43 of his Opinion, scientific studies have shown that pre-stunning is the technique that compromises animal welfare the least at the time of killing. While it is true that Article 4(4) of Regulation No 1099/2009, read in the light of recital 18 thereof, permits the practice of ritual slaughter as part of which an animal may be killed without first being stunned, that form of slaughter, which is authorised only by way of derogation in the European Union and solely in order to ensure observance of the freedom of religion (see, to that effect, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others , C‑426/16, EU:C:2018:335 , paragraphs 55 to 57), is insufficient to remove all of the animal’s pain, distress and suffering as effectively as slaughter with pre-stunning, which, in accordance with Article 2(f) of that regulation, read in the light of recital 20 thereof, is necessary to cause the animal to lose consciousness and sensibility in order significantly to reduce its suffering. In that regard, it should be noted that, while recital 43 of Regulation No 1099/2009 states that slaughter without pre-stunning requires an accurate cut of the throat with a sharp knife to ‘minimise’ the animal’s suffering, the use of that technique does not allow the animal’s suffering to be kept to ‘a minimum’ within the meaning of Article 14(1)(b)(viii) of Regulation No 834/2007. Therefore, contrary to what is claimed by both the French Government and the defendants in the main proceedings in their written observations, the particular methods of slaughter prescribed by religious rites that are carried out without pre-stunning and that are permitted by Article 4(4) of Regulation No 1099/2009 are not tantamount, in terms of ensuring a high level of animal welfare at the time of killing, to slaughter with pre-stunning which is, in principle, required by Article 4(1) of that regulation. It should also be noted that recital 3 of Regulation No 834/2007 lays down the objective of ‘maintaining and justifying consumer confidence in products labelled as organic’. In that regard, it is important to ensure that consumers are reassured that products bearing the Organic logo of the EU have actually been obtained in observance of the highest standards, in particular in the area of animal welfare. Having regard to the findings above, the answer to the question referred is that Regulation No 834/2007, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as not authorising the placing of the Organic logo of the EU on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Regulation No 1099/2009, in particular Article 4(4) thereof. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Grand Chamber) hereby rules: Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as not authorising the placing of the organic production logo of the European Union, referred to in the first paragraph of Article 57 of Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Regulation No 834/2007, as amended by Regulation (EU) No 271/2010 of 24 March 2010, on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, in particular Article 4(4) thereof. [Signatures] * Language of the case: French. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII