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Arib e.a.
Espace de liberté, sécurité et justice
Une frontière intérieure d’un État membre sur laquelle des contrôles ont été rétablis ne peut être assimilée à une frontière extérieure au sens de la directive retour

Jawo
Espace de liberté, sécurité et justice
Un demandeur d’asile peut être transféré vers l’État membre qui est normalement responsable du traitement de sa demande ou qui lui a déjà accordé une protection subsidiaire à moins que les conditions de vie prévisibles des bénéficiaires d’une protection internationale l’y exposeraient à une situation de dénuement matériel extrême, contraire à l’interdiction des traitements inhumains ou dégradants

At the moment this note is written, it is unclear whether there will be another vote in the House of Commons concerning Theresa May’s deal with the EU-27 at all (see here for the latest developments). Already on 18 January 2019, the European Commission recognized that “[i]n view of the uncertainties surrounding the ratification of the Withdrawal Agreement, all interested parties are reminded of legal repercussions which need to be considered when the United Kingdom becomes a third country”. In order to clarify matters, the Commission has published a so-called Preparedness Notice which is meant to give guidance to stakeholders with regard to the implications of a no-deal Brexit in the field of judicial cooperation and private international law. The full text of this notice is available here.

The latest issue of Cuadernos de Derecho Transnacional, an open-access online journal focusing on private international law, is out.

It features some sixty papers (in Spanish, English and Italian) covering a broad range of topics, such as matrimonial property regimes, trade names, the legal framework of drones, child abduction, international data transfers, successions upon death and antitrust torts.

The current issue, like previous ones, can be accessed here.

The Organization of American States (OAS) has announced that the Inter-American Juridical Committee (CJI) has approved the Guide on the Law Applicable to International Commercial Contracts in the Americas. See the summarized recommendations on p. 6, the actual Guide starts on p. 16.

The Rapporteur of the Guide is Dr José Antonio Moreno Rodríguez.

Importantly, one of the recommendations of the Guide is that “OAS Member States, regardless of whether they have or have not ratified, or do or do not intend to ratify the Mexico Convention, are encouraged to consider its solutions for their own domestic legislation, whether by material incorporation, incorporation by reference, or other mechanisms as applicable to their own domestic legal regimes, taking into consideration subsequent developments in the law applicable to international commercial contracts as expressed in the Hague Principles and as described in this Guide.”

Unfortunately, only two States are parties to the Mexico Convention: Mexico and Venezuela. See here.

While the OAS Guide takes into consideration and examines both instruments, it should be noted that the official article-by-article Commentary on the Hague Principles is available here.

The OAS news item is available here (Spanish version of the Guide is not yet available).

“Laws are like sausages, it is better not to see them being made” is a quote widely attributed to German statesman Otto von Bismarck. It is not a wise perception. If, like laws,  we want sausages, then it is paramount we see how they are made, starting from the rearing of the animal, via the transport to and processing in abattoirs, through to food processing.

In Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs the Court held that 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 (on which more here) 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. No organic label under Council Regulation 834/2007 and Commission implementing Regulation 889/2008 may therefore be attached to said meat.

The AG had opined the matter is outside the scope of harmonisation of the organic labelling rules. The CJEU however essentially employs Regulation 1099/2009 as a conjoined piece of law and holds that organic labelling must not be assigned to meat originating from animals unstunned prior to slaughter.

The Court is wrong.

At 41 the Court itself acknowledges 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’.

At 47, the Court refers to Wahl AG’s statement in para 43 of his opinion, suggesting the AG ‘ 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.’

What the AG actually said is ‘In the first place, it seems to me to be accepted that, while every killing is problematic from the viewpoint of animal welfare, the use of pre-stunning methods when animals are slaughtered may, at least in theory, and as a considerable number of scientific studies show, [FN omitted, GAVC] help to minimise that suffering when those methods are used in the proper conditions. that unstunned slaughter, properly carried out, meets with the ethos of organic farming.’ (emphasis added).

The AG in footnote refers to 2 studies in particular (he suggests there are more). Other studies show the exact opposite. Yet the wider relevance of what he opined lies in the ‘slaughter in the books’ admission. ‘In theory at least’ a perfectly carried out pre-slaughter stun minimises pain. That is very much the same with a perfectly carried out shechita or halal incision, particularly where it is carried out with the religiously-inspired stewardship ethos in mind.

In practice, pre-stunning goes horribly wrong in a considerable amount of cases for small and large animals alike. I am not the only one to have witnessed that. And as frequently occurring footage of abattoirs shows, there is little respect for animal welfare in commercial abattoirs, regardless of an eventual stun or not.

Of wider relevance in my view therefore is the problematic enforcement by certification bodies of generally formulated standards  – admittedly not an issue that may be solved by a court case.

Consider Wahl AG’s point made at 45 of his Opinion: ‘the certification ‘halal’ says very little about the slaughtering method actually employed.’ That is exactly the same for pre-stunning. The EU but more particularly its Member States and regions (which given subsidiarity ough to have a big say in this) will not achieve animal welfare if they do not properly address the wider relationship between food professional and animal, between upscale agro-industry and mass meat production.

Finally and evidently, this case is of no consequence to the acceptability of unstunned slaughter from the point of view of expression of freedom of religion.

Geert.