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‘Sentient beings’ and ‘tradable products:’ exploring the status of animals under European Union law by Katy Sowery

Katy Sowery is a PhD candidate in EU law at the University of Liverpool. Her research interests include constitutional law and the law relating to animals.

*This is a summary of an article due to be published in the Common Market Law Review (2018) Issue 55 Volume 1, available online at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090363.

In the European Union animals are formally recognised both as “sentient beings” and as “agricultural products” in the Treaty on the Functioning of the European Union (TFEU.) This “dual status” is a striking feature of the European Union’s legal framework insofar as it aims to offer protection to animals. It serves to demonstrate that on the trans-national level the debate about the status of animals is far from settled, as remains the case in the domestic context. On the one hand, Article 13 TFEU reads:

“In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage (emphasis added.)”

This means that animal welfare is amongst the values that the Union aims to protect when formulating its policies, when there is a link with the main EU policies outlined in Article 13 TFEU including the agricultural sector and the internal market. On the other hand, Article 38 TFEU defines “agricultural products” as the products of stockfarming and fisheries, and the products of first-stage processing directly related to these products. Annex I of the TFEU refers also to “live animals”, “fish, crustaceans and molluscs”, “birds’ eggs” as falling within the definition of “agricultural products.” It is also clear that animals are understood as “products” in Union legislation. For example, Recital 4 of the Regulation on the protection of animals at the time of killing reads that “protection of animals…is a matter of public concern that affects consumer attitudes towards agricultural products…, 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 (emphasis added)”.[1]

As a result, there are marked tensions with the status of, and protections for, animals under Union law. It is fair to say there are numerous (plausible) reasons for the existence of this “dual” status, which is by no means unique to the Union legal framework. Nevertheless, the peculiar constitutional status of animals under Union law has some important consequences for whether, and if so to what extent, animals receive protection at the European level.

Why do animals have a “dual” status under Union law?

The European Union is an organisation of derived or ‘conferred’ powers. Therefore, the Union can only act insofar as it has the competence to do so, as conferred upon it by the Member States in the Treaties. The most important policy areas within which the EU enjoys competence for our purposes are the internal market (where animals are traded across the border as “goods”) and the Common Agricultural Policy (CAP) (where animals are recognised as “products” in agricultural production systems.) The Union does not have any specific animal-related or animal welfare competence to develop standards independently of other (primarily trade-related) policy areas. As a result, animal welfare is generally protected by the Union insofar as it is instrumental to the functioning of the internal market or to agricultural production. Due to the specific constitutional make-up of the Union there are numerous limits as to what the Union can achieve in the context of animal welfare.

In view of the original rationale for the EU and its driving purpose, animal welfare falls to be regulated in the context of transnational trade. Animal welfare concerns must ultimately be balanced with competitiveness and productiveness concerns. Nowhere is the problem of the “dual” status of animals presented more acutely than in the context of transnational trade, where the primary purpose of regulating animals has been to provide for the needs of humans, be that in the context of consumption, experimentation, or entertainment. The paradox in the recognition of animal sentience across the Union, on the one hand, and the fact that animal welfare law serves to “legitimize” the treatment of animals as “products”, on the other hand, is clear in the Union’s attempts to introduce animal welfare standards.

A third point relates to the influence of the social and political context within which animal welfare law has to operate in any (domestic or trans-national) constitutional framework. Therefore although Article 13 TFEU is progressive in recognising animals as “sentient beings,” it is unlikely that it offers the potential to extinguish the connection of animals to the category of “products.” Much depends on the political will and climate within the Union to embrace further change.

The recognition of the status of animals as “sentient beings” is symbolically important. Still, there is a significant potential for tension between the recognition of the needs of animals as “sentient beings”, on the one hand, and the development of animal welfare protection at the Union level which has as its aim the regulation of the animal as a “good” or an “agricultural product”. This tension is well-known across legal systems which employ a welfare-based approach to animal protection. It is also a product of the different interests that have informed the various Treaty revision processes. These different interests help to explain the potential of domestic ‘religious and cultural’ practices to qualify the obligation to pay full regard to the welfare requirements of animals under Article 13 TFEU. This serves to demonstrate the competing preferences of the Member States of the Union as regards how animals should be viewed as “products” or as “sentient beings”, and how far they ought to be protected by Union law as a result.

What does this “duality” mean for the protection of animals under Union law?

The recognition of animals as ‘sentient beings’ in the Treaty is rich with symbolism: it implies a move from an economic understanding of animals as “products” – with an extrinsic value for humans – to a moral understanding of the value attached to the needs of animals. Yet, its possible implications are far from being fully realized in the legal framework, which seems to be out-of-step with the moral status attributed to animals in the Treaty and ultimately concretizes the position of animals as “products” in practice. The legal regime focuses primarily on the use of animals for human consumption, experimentation and entertainment. This is not to discredit the significant achievements at EU level in relation to the development of animal welfare standards. Indeed, even if animals are viewed as “products,” there is legislation, for instance, requiring “humane” slaughter which ensures the welfare of animals is considered to a certain extent.[2]

This section focuses on how the tensions within the present Union framework seem to materialise. Three particular points are worth noting:

  • The range of animals covered by Union legal instruments is narrow. Many of interventions are specific reactions to issues caused by the “use” of food-producing animals in intensive farming systems.[3] The Union has also made attempts to protect animals kept in captivity or used in experiments; in other words, animals that are deemed to be the “property” of humans.[4]
  • Some important animal welfare problems have not been addressed at the EU level. Notable examples include turkey farming, rabbit farming, and the dairy cow industry.[5]
  • Most Union legislation focuses on the quality of animals as “products”, by prioritising their health-based and physical (resource-based) welfare needs. Thus, the Union framework may be understood as pursuing one approach to animal welfare, to the detriment of a more holistic understanding of the species-specific, ethological and behavioural needs of animals that may be required in order to protect the intrinsic value of “sentient” animals. In particular, the behavioural needs of animals are often overlooked due to the economic nature of the measures. Legislation tends to favour animals’ status as “goods”; ensuring that animals remain alive, grow, and that their productivity is maintained.[6] It seems to be assumed that providing adequate resources (food, accommodation) is sufficient to safeguard animal welfare. This has led to the prohibition of problematic practices and procedures, including the use of veal crates,[7] battery cages,[8] and sow stalls.[9] Whilst such developments are important, the drawback is that they do not require an assessment of the welfare status of the animal per se, as they prioritize resource-based parameters.

As a result it is quite clear that within the Union context – when it comes to reconciling the dual status of animals – the balance of interests falls to ensuring the quality of the animal “end-product” and reducing the production costs of such products.  It is therefore interesting that the focus for EU law and policy-making currently lies with the enforcement of existing standards, rather than the development of new standards. A Platform for Animal Welfare was set up in 2017 to enable public institutions and agencies to work on animal welfare issues that can be resolved either through better implementation or enforcement, or through non-legislative means.[10] But, whilst such a development is valuable, new legislative standards that are tailored to the broader needs and state of the animal are necessary in order to address key welfare problems. A report published in 2017 demonstrates that EU policy-making and legislation on animal welfare has come almost to a standstill, and generally does not reflect the fact that animals ought to be protected as “sentient beings”.[11] It is problematic that there has been limited (recent) progress in EU animal welfare policy and legislation.

Accommodating the needs of “sentient beings” in the future?

This final section will consider how the tensions with the “duality” in the status of animals might, in future, be dealt with. How, if at all, might it be possible to accommodate protection for animals as “sentient beings”, whilst also regulating animals as “products”?

In practice, the Union’s political institutions could formulate Union-level legislation on the welfare requirements of animals in broader areas, whilst also updating the existing legislative provisions to alleviate some of the more out-dated provisions on animals and their welfare. Of course, in order for this to become a reality sufficient political will would necessarily have to exist. Article 13 TFEU only introduces a procedural obligation for the Union’s political actors to pay regard to animal welfare, but it does not require animal welfare to be prioritised in every instance. In addition, the Union must act within the limits of its own competences to achieve animal welfare objectives.

Another possible agent of change lies with the European Citizens’ Initiative. This enables Union citizens to put certain policy issues on the Union’s agenda with the possibility of the Union then proposing legislation in that area. Whilst a “Stop Vivisection” initiative has been rejected by the Commission, the end sought – pushing for alternatives to animal experimentation – was broadly accepted.[12] Thus through citizen participation the issue of animal welfare can permeate the Union’s legal and policy trajectory. Indeed, in view of the social and political factors that inform or even hinder the development of animal welfare law and policy, one of the better ways to promote the recognition of animal sentience may emerge from an increased awareness of animal welfare issues by citizens.

Conclusion

The Union has developed a range of legal measures to improve the treatment of animals across Europe. But, at present, the Union’s approach to animal welfare protection lacks coherence, a problem which can be traced to the dual status of animals in the legal framework as both “products” and “sentient beings.” The majority of current EU measures reveal that animals are (for the most part) still recognized for their value as “goods” and “products.” The remaining question concerns what the impact of recognizing animals as “sentient beings” within the Union may hold for the future. Is a “dual” status for animals inevitable in legal regimes that employ the animal welfare paradigm? The ultimate conclusion is that whilst it seems likely that the duality will remain within the European legal framework, it is possible to envisage a more balanced approach, where the interests of animals are not reduced to their ability to provide for a human benefit as “products”.

 

[1] Regulation 1099/2009 on the protection of animals at the time of slaughter or killing, OJ L 303, 18.11.2009, p. 1–30.

[2] Regulation 1099/2009 on the protection of animals at the time of slaughter or killing, OJ L 303, 18.11.2009, p. 1–30.

[3] E.g., Directive 2008/120/EC laying down minimum standards for the protection of pigs, O.J. 2009, L 47/5; Directive 2008/119/EC laying down minimum standards for the protection of calves, O.J. 2009, L 10/1; Directive 2007/43/EC laying down minimum rules for the protection of chickens kept for meat production, O.J. 2007, L 182/19; and Directive 1999/74/EC laying down minimum standards for the protection of laying hens, O.J. 1999, L 203/53.

[4] E.g., Directive 1999/22/EC of 29 March 1999 relating to the keeping of wild animals in zoos, OJ L 94, 9.4.1999, p. 24–26.

[5]See the European Parliament resolution of 14 Mar. 2017 on minimum standards for the protection of farm rabbits (2016/2077(INI)). The Commission DG Health and Food Safety is gathering information about the health and welfare of farmed domestic rabbits and will publish the outcome early 2018. See <ec.europa.eu/food/audits-analysis/news_detail.cfm?id=88>.

[6]See Recital 12 of Directive 2008/120/EC for the protection of pigs: “a balance should be kept between various aspects to be taken into consideration, as regarding welfare, including health, economic and social considerations and also environmental impact”. This implies a cost-effectiveness assessment on the part of the owner as regards the rearing cost and income. This is the same language used in Recital 9 of Directive 1999/74/EC on the protection of laying hens, as regards the choice of rearing system for laying hens. Consider also the outdated legislative provisions on tail-docking and castration for male piglets, which is based on the idea that their neuro-anatomy is not fully developed so they unable to feel pain. Any physical interventions resulting in damage or loss of a sensitive body part or alteration to bone structure are prohibited by Directive 2008/120, Annex 1, Chapter 1(8), but exceptions include tail-docking and castration where a 7-day period after the piglet’s birth is an acceptable limit to perform physical interventions without pain relief. But, note the non-legislative initiatives in this regard: European Declaration on alternatives to surgical castration of pigs, available at <ec.europa.eu/food/animals/welfare/practice/farm/pigs/castration_alternatives_en>.

[7]Directive 97/2/EC of 20 Jan. 1997 amending Directive 91/629/EEC laying down minimum standards for the protection of calves, O.J. 1997, L 25/24.

[8]Art. 5 of Directive 1999/74/EC.

[9]Art. 3 of Directive 2008/120/EC.

[10]See <ec.europa.eu/food/animals/welfare/eu-platform-animal-welfare_en>.

[11]Broom, “Animal Welfare in the EU: Progress so far and future prospects,” (2017), European Parliament Policy Department, Citizen’s Rights and Constitutional Affairs.

[12] For information, see: http://europa.eu/rapid/press-release_IP-15-5094_en.htm.

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