Saving Sentience: the Status of Farm Animal Welfare Within EU Law

Saving Sentience: The Status of Farm Animal Welfare Within EU Law

Master Thesis European Union Law – Tilburg University 2020

Author: S.A.J.C. (Sander) Wagemakers Student number: U1273699 University: Tilburg University Faculty: Tilburg Law School Department: Department of Public Law and Governance (PLG) Study: LLM European Union Law Date: 24 April 2020

Supervisor: Dr. F.M. Fleurke Co-supervisor: J.S.V. Dubrulle LL. M Second reader: Prof. H. Somsen

Cover image: Noël-Nicolas Coypel III (1722), The Rape of Europa (Primary Title). Virginia Museum of Fine Art, retrieved from vmfa.musuem. Cover design: Bohdy Rottier

PREFACE In front of you lies my master thesis on the status of EU farm animal welfare law from both a legal historical and legal doctrinal perspective. For me, a milestone in my life. It entails the completion of my master’s and ushers in the start of my legal professional career. Ironically, the subject of this thesis coincides with the beginning of my educational path. I started my educational pilgrimage with a pre-vocational education degree in animal care. After this, I finished my senior secondary vocational education as paraveterinary assistant. Subsequently, I took another path by obtaining my bachelor of laws, completing my pre-master in Dutch Law, and earning my master’s in both Dutch Law and, with the completion of this thesis, in European Union Law. So, from paraveterinary assistant to a master thesis on EU farm animal welfare law, who could have imagined that?

What I like about this thesis is that it integrates my interest in legal history, EU law, and animal welfare. My research also brought me into contact with other lawyers and scholars on various related subjects. Of course, the process of writing this thesis was hard as I wanted to conduct extensive research on this subject. However, I have no regrets and I am proud of my work. I hope it is very informative and inspires others to continue the development of animal welfare law.

In this preface, I would like to thank in particular my supervisors Dr. Fleurke and Ms. Dubrulle LL. M for their critical feedback on my writing skills, methodology, and legal arguments. I really appreciated their support and sincere interest in my research subject. I also want to thank them for respecting my decision to do two legal internships in Brussels at AKD Benelux Lawyers and Houthoff. Of course, this decision postponed my thesis. However, it also allowed me to develop my legal knowledge and professional skills. Living in Brussels also enriched my personal development as it broadened my perspective and resulted in new friendships. Furthermore, I would like to thank my friends for their support and shown interest in my research. In particular, I want to thank my dear friends Lianne, Lizzy, Lucas, Manon, and Valesca for their critical feedback. Also, SO to Bohdy for designing the cover of my thesis. Finally, I want to express my gratitude to my parents. Their unconditional support and belief in me kept me motivated from the start of my pre-vocational education until my master’s.

Lastly, I have some concluding remarks. I never would have thought to live in a time with so many challenges for the EU. Brexit, the rise of radical-right parties as part of the political mainstream, the destruction of liberal democracy in Hungary, and anthropogenic climate change. Furthermore, the current COVID-19 pandemic will have enormous social and economic consequences, which will influence the debate on European integration and the reshaping of the European economic system. It feels like we are approaching a decisive point for the future of the EU. On the other hand, anthropogenic climate change and the COVID-19 pandemic demonstrate our need for global cooperation. These challenges also question the effects of our global governance and economic system on the planet, which hopefully could lead to changing policies. Now, my thesis only focuses on the protection of farm animal welfare. However, this issue cannot be seen separately from the way that we conduct animal husbandry in relationship with our planet. Therefore, I call upon lawyers to come up with legal initiatives to address both current and upcoming challenges. Protect the rule of law, protect our planet, and protect animals as they are sentient beings.

S.A.J.C. (Sander) Wagemakers 28 April 2020 Roosendaal (The Netherlands)

SUMMARY This thesis explores the status of farm animal welfare within EU law with regard to its protection on both the EU and Member State level. As one of the biggest traders of live animals and producers of animal products, the EU has a significant influence on farm animal welfare. However, there are growing animal welfare concerns about the current system of animal husbandry. These concerns are strengthened by upcoming challenges, such as the growing demand for meat and anthropogenic climate change. Therefore, this thesis conducts both a legal historical and doctrinal analysis to assess the status of farm animal welfare protection within EU law.

The legal historical analysis discusses the position of animals and the development of EU animal welfare. It concludes that the teleological anthropocentric perspective on animals changed after WWII when the EU adopted an animal welfare framework based on both utilitarian and deontological motives. This resulted in the recognition of animals as sentient being within EU primary law.

Subsequently, the legal doctrinal research assesses the protection of EU farm animal welfare within Article 13 TFEU, seven relevant secondary laws, the CAP, and case-law. It also discusses the improvement of farm animal welfare protection through positive integration and to what extent Member States can enact domestic farm animal welfare measures, in respect to EU law. This thesis concludes that the status of farm animals and their welfare requirements within EU law is ambiguous. On the one hand, EU law provides a unique, yet fragmented, legal framework and acknowledge animals as sentient beings. Article 13 TFEU thereby imposes a constitutional obligation on the EU and the Member States and provides a regulatory competence, which legitimizes farm animal welfare measures. Furthermore, secondary farm animal welfare law provides animal-based benchmarks and observes the four different welfare objectives, though, not always integrally. On the other hand, EU law qualifies animals as products. Also, the current minimum provisions are inadequate to provide an ‘interest-based’ level of protection. This caused by the economic context in which animal husbandry operates, which is incompatible with the notion of animals as sentient beings. Finally, Member States can impose higher animal welfare standards. Furthermore, the Wouters-exception allows Member States to provide a derogation from EU competition law by imposing animal welfare obligations on undertakings through public law. However, they cannot restrict the free movement of goods due to the extensive harmonization of farm animal welfare law.

So, to safeguard the sentient nature of animals adequately, animal husbandry should be ‘interest-based’ and focus less on mass production. Therefore, the CAP should be reformed by including animal welfare as one of its objectives and perceiving animals as members of the agricultural community. Also, the current animal welfare instruments should be updated according to recent scientific insights. Furthermore, the EU should adopt a general ‘interest-based’ animal welfare regulation. This regulation should observe the integral protection of the four animal welfare objectives and incorporate Gygax’s & Hillmann’s concept of ‘naturalness’ as the basis for “good” animal welfare. Moreover, the regulation should impose a duty of care on Member States, business operators, and other stakeholders. It should also provide a derogation scheme from Article 101(1) TFEU based on animal welfare.

Finally, the European legislator should clarify its moral stance on animal welfare to establish its desired level of animal welfare and quantify certain benchmarks. Hence, EU law does not protect farm animal welfare conclusively but does provide the means to improve and enhance it in order to safeguard the status of animals as sentient beings.

TABLE OF CONTENTS

PREFACE...... 1 SUMMARY ...... 2 TABLE OF CONTENTS ...... 3 LIST OF FIGURES ...... 6 LIST OF ABBREVIATIONS ...... 7 1 RESEARCH INTRODUCTION...... 8 1.1 Introduction ...... 8 1.2 Socio-economic problem...... 9 1.3 Legal problem...... 11 1.4 Research question...... 14 1.5 Methodology...... 15 1.6 Research scope...... 16 1.7 Preliminary argument ...... 16 1.8 Theoretical framework ...... 17 1.8.1 Animal welfare ...... 17 1.8.2 Animal welfare law versus animal rights ...... 19 1.9 Reading guide...... 21 2 HISTORY OF ANIMAL WELFARE LAW ...... 22 2.1 Introduction ...... 22 2.2 Shifting the spiritual boundary ...... 22 2.3 The ancient world ...... 23 2.4 Teleological anthropocentrism ...... 25 2.5 Changing perspective ...... 27 2.6 The aftermath of WWII ...... 28 2.7 EU animal welfare law ...... 30 2.8 Rethinking the human-animal relationship...... 35 2.9 Conclusion ...... 37 3 ARTICLE 13 TFEU...... 38 3.1 Introduction ...... 38 3.2 The scope of Article 13 TFEU...... 38 3.2.1 Sentient beings ...... 39

3.2.2 Regulatory principle ...... 40 3.2.3 Constitutional obligation ...... 41 3.3 Article 13 TFEU within case-law...... 42 3.4 Expanding the role of the EU institutions ...... 44 3.5 Conclusion ...... 45 3.6 Formulating an EU farm animal welfare standard ...... 45 4 FARM ANIMAL WELFARE WITHIN EU LAW ...... 46 4.1 Introduction ...... 46 4.2 Analysis of relevant secondary law ...... 46 4.2.1 Council Directive 98/58/EC – General Farm Animal Welfare Directive ...... 46 4.2.2 Council Directive 1999/74/EC – Laying Hens Directive ...... 48 4.2.3 Council Regulation 1/2005 – Animal transport Regulation ...... 51 4.2.4 Council Directive 2007/43/EC – Broiler Directive...... 53 4.2.5 Council Directive 2008/119/EC – Calves Directive ...... 55 4.2.6 Council Directive 2008/120/EC – Pig Directive ...... 58 4.2.7 Council Regulation. 1099/2009 – Slaughter Regulation ...... 61 4.3 Animal welfare and the CAP ...... 68 4.4 Animal welfare and the CJEU ...... 70 4.5 Saving sentience ...... 73 4.5.1 A different perspective ...... 73 4.5.2 Competence and legal basis...... 77 4.5.2.1 Principle of subsidiarity...... 78 4.5.2.2 Principle of proportionality ...... 79 4.5.3 Adopting a General Farm Animal Welfare Regulation ...... 81 4.5.3.1 Incorporating the precautionary principle ...... 82 4.5.3.2 Establishing a duty of care...... 82 4.5.3.3 Ensuring effective enforcement ...... 83 4.6 Conclusion ...... 85 5 ANIMAL WELFARE PROTECTION BY MEMBER STATES...... 87 5.1 Introduction ...... 87 5.2 Negative integration, an obstacle ...... 87 5.3 Free movements of goods ...... 87 5.3.1 Article 36 TFEU: Public morality and policy...... 89

5.3.2 Article 36 TFEU: Animal health ...... 90 5.3.3 Mandatory requirements ...... 91 5.3.4 Precautionary Principle ...... 93 5.3.5 Selling arrangements ...... 94 5.3.6 Reverse discrimination...... 95 5.3.7 Proportionality ...... 95 5.4 Animal welfare and EU competition law ...... 98 5.5 Conclusion ...... 101 6 CONCLUSION ...... 103 BIBLIOGRAPHY ...... 105 CASE-LAW REGISTER ...... 146 EU case-law ...... 146 Dutch case-law ...... 148 PROPOSALS & POLICY DOCUMENTS OF THE EUROPEAN UNION...... 149

LIST OF FIGURES

 Figure 1.1 – Overview global animal trade p. 10  Figure 1.2 – Overview animal welfare p. 20  Figure 2.1 – Milestones EU farm animal welfare (I) p. 33  Figure 2.2 – Milestones EU farm animal welfare laws (II) p. 34  Figure 4.1 – Scheme Council Dir. 98/58 p. 47  Figure 4.2 – Scheme Council Dir. 1999/74 p. 50  Figure 4.3 – Scheme Council Reg. 1/2005 p. 52  Figure 4.4 – Scheme Council Dir. 2007/45 p. 54  Figure. 4.5.1 – Scheme Council Dir. 2008/119 p. 56  Figure 4.5.2 – Scheme Council Dir. 2008/119 p. 57  Figure 4.6.1 – Scheme Council Dir. 2008/120 p. 59  Figure 4.6.2 – Scheme Council Dir. 2008/120 p. 60  Figure 4.6.3 – Scheme Council Dir. 2008/120 p. 61  Figure. 4.7.1 – Scheme Council Reg. 1099/2009 p. 62  Figure 4.7.2 – Scheme Council Reg. 1099/2009 p. 63  Figure 4.7.3 – Scheme Council Reg. 1099/2009 p. 64  Figure 4.7.4 – Scheme Council Reg. 1099/2009 p. 65

LIST OF ABBREVIATIONS

ACM – Autoriteit Consument & Markt (‘the Dutch Competition and Consumer Protection Authority’) AHAW –The Panel on Animal Health and Welfare CAP – Common Agricultural Policy CFR – Charter of Fundamental Rights of the European Union CJEU – Court of Justice of the European Union COE – Council of Europe Council Dir. – Council Directive Council Reg. – Council Regulation Dir. – Directive Diss. – Dissertation ECPAF (or ‘Convention’) – European Convention for the Protection of Animals kept for Farming 1976 ECPAT – European Convention for the Protection of Animals during Transport 1968 Ed(s). – Editor(s) EFSA – European Food Safety Authority EP – European Parliament Et al. – Et alii (‘among others’) Etc. –Et cetera (‘and so on’) EU – European Union EU law – European Union law FAWC – Farm Animal Welfare Council GCEU – General Court of the European Union GDPR – General Data Protection Regulation Martins Act – The Ill-Treatment of Horses and Cattle Bill 1822 MEQR’s – Measures having equivalent effect MR’s – Mandatory Requirements NVWA – Nederlandse Voedsel- en Warenautoriteit (‘The Netherlands Food and Consumer Product Safety Authority’) OEI – The World Organisation for Animal Health Rec. – Recital Reg. – Regulation TEU – Treaty of the European Union TFEU – Treaty of the Functioning of the European Union The Declaration – Declaration 24 on the Welfare of Animals The Protocol – Protocol on Protection and Welfare of Animals 1997 WWII – Second World War

1 RESEARCH INTRODUCTION

1.1 Introduction Over the years, farm animal welfare protection has become an important subject within the European Union (‘EU’). This resulted in a diverse animal welfare framework. However, there are growing animal welfare concerns and upcoming challenges within animal husbandry question whether European Union law (‘EU law’) can ensure a high level of farm animal welfare. Hence, this thesis assesses the status of farm animal welfare within EU law with regard to its protection on both the EU and Member State level.

This chapter outlines the structure of this research as followed. Paragraph 1.2 describes the main socio- economic concerns regarding animal welfare within the EU agricultural sector, while paragraph 1.3 discusses the legal problem. Next, paragraph 1.4 outlines the main research question. Paragraphs 1.5 and 1.6 set out the methodology and research scope. Furthermore, paragraph 1.7 presents the preliminary argument. Subsequently, paragraph 1.8 outlines the theoretical framework of this research. Lastly, paragraph 1.9 ends with the reading guide of this research.

1.2 Socio-economic problem The main problems within European animal husbandry on protecting farm animal welfare are the increasing demand for meat (and other animal products) and anthropogenic climate change. This paragraph describes briefly the socio-economical context of animal husbandry in relationship to these challenges.

Animal husbandry represents a certain amount of economic value and accumulates a huge amount of wealth.1 The total EU animal output in 2016 was estimated at 158.76 billion euro at basic prices.2 After the economy recovered, the meat production and consumption increased in 2014-2016.3 In 2017 the EU produced 47 million tons of meat,4 which presumably will be 48 million tons in 2030.5

With a growing demand for meat, the production of meat also increases and thus the need for production- driven animal husbandry. This is related to the fact that agriculture, in general, focuses on increasing productivity and assuring food security. 6 However, the focus on production and increasing livestock farming can result in detrimental animal welfare effects.7

1 Figure 1.1 demonstrates the amount of animals involved in the global animal trade; see also : G.L. Francione, ‘Reflections on Animals, Property and the Law and Rain without Thunder’, Law and Contemporary Problems (70) 2007, p. 9; D. Wadiwel, ‘Piketty’s Capital should force a rethink on animals as property’, The Conversation July 2016, www.theconversation.com (search on: animals as property); E. Meijer, ‘Animals’, in: ‘Marx from the Margins: A Collective Project, from A to Z’, Krisis, Journal for contemporary philosophy 2018-2; J.C. Hribal, “Animals Are Part of the Working Class”: a Challenge to Labor History’, Labor History (44) 2003-4, p. 435-453; J.C. Hribal, ‘Animals, Agency, and Class: Writing the History of Animals from Below’, Human Ecology Review (14) 2007-1, p. 101-112. 2 ‘Agricultural accounts and prices’, Eurostat (date extracted on November 2017). 3 In comparison to 2008-2013 were the meat consumption decreased due to lower availability because of the crisis, see: European Commission, Agricultural accounts and prices, EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2017-2030, DG Agricultural and Rural Development 2017, p. 43-44. 4 The EU livestock population consisted in 2017 of 88 million bovine animals, 150 million pigs and 100 million sheep and goats, which provided 23.4 million tonnes of pig meat, 15 million tonnes of poultry meat, 7.8 million tonnes of beef and veal and 0.8 million tonnes of sheep and goat meat (equalling 47 million tonnes of meat). Note that the website of Eurostat mentions 45.2 million tonnes of meat, but the actual data indicates 47 million tonnes of meat. This can be explained by the fact that figure 2 Livestock and meat: tables and figures mentions 13.2 tonnes of poultry, while the chart and table of figure 3 Livestock and meat: tables and figures mentions 15 million tonnes of poultry, see: ‘Livestock and meat: tables and figures’, in: ‘Agricultural production - livestock and meat’, Eurostat (data extracted on April 2019); Eurostat, Agriculture, forestry and fishery statistics — 2018 edition, Luxembourg: Publications Office of the European Union 2018, p. 50-56. 5 The production of poultry meat is estimated to expand by 4% in the period 2018-2030, and goat and sheep meat by 5%. Pig meat slightly grows and in the end stabilize due to competition and a lower demand, while beef decreases due to decline of the cow herd and a lower demand. Although the meat consumption could slightly decline or stabilize on the long term, it is too early to conclude that there will be a clear downward trend in overall meat consumption, see: European Commission, EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2018-2030, DG Agricultural and Rural Development 2018, p. 60-68. 6 The Netherlands and Denmark, for instance, are the biggest exporters in the world, in: T. Levitt, ‘Two billion and rising: the global trade in live animals in eight charts’, The Guardian 20 January 2020 (data derived from The UN's Food and Agricultural Organization); see furthermore: C. Soto Golcher, B. Arts & I.J. Visseren-Hamakers, ‘Seeing the forest, missing the field: Forest and agriculture in global climate change policy’, Land Use Policy (77) 2018, p. 637; Sustainable agriculture and farm animal welfare, FAWC 2017; H. Buller et al., ‘Towards Farm Animal Welfare and Sustainability’ , Animals (8), 2018-6. 7 European Commission, EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2018-2030, DG Agricultural and Rural Development 2018, p. 60-68; European Commission, EU Agricultural Outlook: Prospects

Figure 1.1 – Overview of global animal trade

for the EU agricultural markets and income 2017-2030, DG Agricultural and Rural Development 2017, p. 43-44, 48; I.J. Visseren-Hamakers, ‘A framework for analyzing and practicing Integrative Governance: The case of global animal and conservation governance’, Environment and Planning C: Politics and Space (36) 2018, p. 1406-1407; C. Soto Golcher, B. Arts & I.J. Visseren-Hamakers, ‘Seeing the forest, missing the field: Forest and agriculture in global climate change policy’, Land Use Policy (77) 2018, p. 637-638; D.J. Mellor & D. Bayvel, ‘Animal Welfare: focusing on the future’, OIE Scientific and Technical Review (33) 2014/1, p. 156, 325; R. Laporte & P.M. Seng, ‘Animal welfare: the role and perspectives of the meat and livestock sector’, in: A.C.D. Byvel, S.A. Rahman & A. Gavinelli (ed.), ‘Animal Welfare: global issues, trends and challenges’, OIE Scientific and Technical Review (24) 2005/2, p. 613-622; Economics and Farm Animal Welfare, London: Farm Animal Welfare Committee 2011, p. 25; M. Stamp Dawkins, ‘Animal welfare and efficient farming: is conflict inevitable?’, Animal Production Science (57) 2017, p. 201-208; D. Ryland, ‘Advancing animal welfare: state, society and economy’, in: A.F. Modrzewski, Democratic and social state under the rule of law: society, politics, economy’, Krakow: Krakow University & The Jagiellonian University 2014, p. 853.

Furthermore, anthropogenic climate change has a significant impact on the planet, which in turn affects animal husbandry.8 Anthropogenic climate change threatens farm animal welfare directly, due to extreme weather conditions, and indirectly by threatening food security or by contributing the spread of (new) diseases. 9 This is caused by humanity’s ecological blindness for the inseparability between them and nature, which is even reflected within the EU Treaties.10 Therefore, anthropogenic climate change and the increasing production-driven animal husbandry provide a challenge for the EU to protect farm animal welfare. 1.3 Legal problem The current framework does not protect farm animal welfare effectively, which is caused by several legal problems as the EU lacks a general animal-based framework. This paragraph outlines the main legal problems within EU primary law and secondary law that affect farm animal welfare. It also addresses the relationship between domestic provisions and the free movement of goods.

Although the EU adopted farm animal welfare measures, there are growing welfare concerns about animal slaughter, the selective and unregulated breeding, and the transportation of live animals.11

8 IPCC, 2018: ‘Summary for Policymakers’, in: V. Masson-Delmotte et al. (eds.), Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, Geneva: World Meteorological Organization 2018; P.J. Crutzen, ‘Geology of Mankind’, Nature (415) 2002, p. 23; S.L. Lewis & M.A. Maslin, ‘Defining the Anthropocene’, Nature (519) 2015, 172-177; J. Rockström et al., ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’, Ecology and Society (14) Article 32, 2009; L. White Jr., ‘The Historical Roots of Our Ecologic Crisis’, Science (155) 1967, p. 1203-1207. 9 Sustainable agriculture and farm animal welfare, FAWC 2017; H. Buller et al., ‘Towards Farm Animal Welfare and Sustainability’ , Animals (8), 2018-6; C. Soto Golcher, B. Arts & I.J. Visseren-Hamakers, ‘Seeing the forest, missing the field: Forest and agriculture in global climate change policy’, Land Use Policy (77) 2018, p. 637; D.M. Broom, Animal Welfare in the European Union (at request by the European Parliament), D-G for Internal Policies, Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 19; IPCC, 2018: ‘Summary for Policymakers’, in: V. Masson- Delmotte et al. (eds.), Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, Geneva: World Meteorological Organization 2018. 10 H. Somsen, ‘Temporal Challenges: The Retrospectivity of EU Environmental Law’, in: L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene, Oxford: Hart Publishing 2017, p. 364; for more on the anthropocentric nature of environmental law, see: J.C. McNeil & P. Engelke, The Great Acceleration: An Environmental History of the Anthropocene since 1945, Cambridge: The Belknap Press of Harvard University Press 2016; S.C.G. Thompson & M.A. Barton, ‘Ecocentric and Anthropocentric Attitudes toward the Environment’, Journal of Environmental Psychology (14) 1994/2, p. 149-157; C.J. Bastmeijer (ed.), Wilderness Protection in Europe, Cambridge: Cambridge University Press 2017, p. 3-4, 16, 42; T. Morton, Being Ecological, London: Penguin Books Ltd 2018; K. Thomas, Man and the Natural World: Changing Attitudes in England, 1500–1800, London: Allen Lane 1983. 11 M. Stamp Dawkins, ‘Animal welfare and efficient farming: is conflict inevitable?’, Animal Production Science (57) 2017, p. 201-208; D. Ryland, ‘Advancing animal welfare: state, society and economy’, in: A.F. Modrzewski, Democratic and social state under the rule of law: society, politics, economy’, Krakow: Krakow University & The Jagiellonian University 2014, p. 853; ‘Areas of Concern’, Eurogroup for Animals 2010, www.eurogroupforanimals.org; R. Laporte & P.M. Seng, ‘Animal welfare: the role and perspectives of the meat and livestock sector’, in: A.C.D. Byvel, S.A. Rahman & A. Gavinelli (ed.), ‘Animal Welfare: global issues, trends and challenges’, OIE Scientific and Technical Review (24) 2005/2, p. 613-622; L. Dale-Harris, ‘Revealed: exported EU animals subject to abuse and illegal conditions’, The Guardian 1 May 2017; D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!’, Groene Amsterdammer

Therefore, the current framework seems inadequate to prevent animal welfare violations. 12 To start with, Member States fail to enforce implemented or applicable EU law adequately.13 As enforcement remains up to the discretion of Member States, the enforcement of EU farm animal welfare law is fragmented and lacks a coherent common approach. 14

Besides enforcement, there are other structural problems in EU law concerning the protection of farm animal welfare. According to EU primary law, Article 13 Treaty on the Functioning of the European Union (‘TFEU’) acknowledges animals as ‘sentient beings’. However, this notion about animals seems to incompatible with the way animal husbandry focusses on increasing production and productivity. Furthermore, the literature indicates that there is a discrepancy between the status of animals in law and recent philosophical and scientific insights. 15 It is, therefore, unclear to which extent Article 13 TFEU contributes to the protection of farm animal welfare.

With regard to secondary law, it should be observed that there are different animal welfare measures adopted at different times and by different types of legal instruments. Without a general and common desired level of animal welfare, the current system provides different degrees of protection. Nevertheless, it can be concluded that the current farm animal welfare framework is not ‘interest-based’. According to Sowery, animal welfare measures pre-Lisbon lack animal-based welfare indicators.16

(41) 2018; R. Wassens, ‘NVWA deelt bijna vijftig boetes uit aan Nederlandse slachthuizen’, NRC 19 June 2018; ‘Slachthuis 23' maakt een puinhoop van het doden van varkens’, RTL nieuws 19 June 2018. 12 European Court of Auditors, Animal welfare in the EU: Closing the gap between ambitious goals and practical implementation, Special Report (31) 2018, p. 6; DG Health and Food Safety, Welfare of cattle on dairy farms, Luxembourg: Publications Office of the European Union 2017, p. 4; EFSA, ‘Scientific opinion on welfare of dairy cows in relation to behavior, fear and pain’, The EFSA Journal (2009) 1139, p. 14; T. Camm & D. Bowles, ‘Animal Welfare and the Treaty of Rome – a Legal Analysis of the Protocol on Animal Welfare and Welfare Standards in the European Union’, Journal of Environmental Law (2) 2000-12, p. 198. 13 P.T.M. Ingenbleek, D. Harvey D, / Ilieski et. al, ‘The European Market for Animal-Friendly Products in a Societal Context’, Animals: an Open Access Journal from MDPI (3) 2013, par. 4.1; European Court of Auditors, Animal welfare in the EU: Closing the gap between ambitious goals and practical implementation, Special Report (31) 2018, p. 22, 29-35, 48-50; J. Dohrmann, Report on the implementation of Council Regulation No 1/2005 on the protection of animals during transport within and outside the EU (2018/2110(INI)), European Parliament, Committee on Agriculture and Rural Development 31 December 2019, A8-0057/2019, p. 21-22; rec. G & Recommendations 1, 4, 6, 9, 11, 14-15, 68 European Parliament resolution of 14 February 2019 on the implementation of Council Regulation (EC) No 1/2005 on the protection of animals during transport within and outside the EU (2018/2110(INI)). 14 For instance The Netherlands Food and Consumer Product Safety Authority (‘NVWA’) does not enforce animal welfare rules adequalty. In contrast, Finland stimulates and enforces actively animal welfare requirements. See: Duurzaamheid intensieve veehouderij: vervolgonderzoek 2013, Algemene Rekenkamer 2013, in: Kamerstukken II 2012-13, 31 478, nr. 6, p. 21; D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!,’ Groene Amsterdammer (41) 2018; Finnish Centre for Animal Welfare, Animal Welfare in Finland | a national report on animal welfare (trans. T. Saloniemi), 2013. 15 K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018-55, p. 59-60; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017/3, p. 547, 583-584; D. Ryan & A. Nurse, ‘Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review 2013, p. 103; E. Aaltola & B. Wahlberg, ‘Nonhuman Animals: Legal Status and Moral Considerability’, Retfærd – Nordic Journal of Law and Justice (38) nr. 151, 2015-4, p. 99, 100. 16 K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018-55, p. 83.

In addition, animal welfare provisions post-Lisbon are not ‘interest-based’, though, they include animal- based criteria.17 Critics, therefore, argue that EU farm animal welfare law only focuses on removing the most grievous and urgent injustices, instead of ensuring a higher level of animal welfare. 18

Hence, the EU lacks a general ideological policy to provide an animal-based framework, which observes the economic context in which animal husbandry operates. 19 However, the question is whether the EU can establish a legal farm animal welfare framework as the TFEU does not confer animal welfare as general competence to the EU.20 It is also unclear whether proposed animal welfare measures are compatible with the principles of subsidiarity and proportionality.

Finally, it is unclear to which extent Member States are allowed to enact domestic animal welfare policies that are compatible with the free movement of goods.21 Before the Lisbon Treaty, animal welfare was regarded as a matter of public policy and as a viable restriction on the freedom of goods.22 However, The Court of Justice of the European Union (‘CJEU’) ruled that Member States cannot impose higher animal welfare standards towards the other Member States in case the matter is already harmonized.23

Thus, the current EU framework does not protect farm animal welfare effectively and is incompatible with the notion of animals as sentient beings. This indicates that there is no coherent ideological approach on farm animal welfare within the EU.

17 Some scholars therefore argue that the nature of EU animal welfare law is anthropocentric, see: B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017-3, p. 583; G. Steiner, Anthropocentrism and Its Discontents: The Moral Status of Animals in the History of Western Philosophy, Pittsburgh: University of Pittsburgh Press 2005, p. 112-131; L. White, ‘The Historical Roots of Our Ecologic Crisis’, Science (155) 1967-3767, p. 1205; E. Aaltola & B. Wahlberg, ‘Nonhuman Animals: Legal Status and Moral Considerability’, Retfærd – Nordic Journal of Law and Justice (38) nr. 151, 2015-4, p. 89, 100; D. Fraser, ‘Understanding Animal Welfare’, Acta Veterinaria Scandinavia (50) 2008-1; F. Ohl & F.J. Van der Staay, ‘Animal welfare: At the interface between science and society,‘ The Veterinary Journal (192) 2012, p. 17-19. 18 E. Spaventa, ‘Case-189/01, H. Jippes, Afdeling Groningen van de Nederlandse Vereniging tot Bescherming van Dieren, Afdeling Assen en omstreken van de Nederlandse Vereniging tot Bescherming van Dieren / Minister van Landbouw, Natuurbeheer en Visserij’, Common Market Law Review (39) 2002-5, p. 1165; R. Garner, A Theory of Justice for Animals: Animal Rights in a Nonideal World, London: Oxford University Press 2013, p. 135 19 R. Ludwig & R. O’Gorman, ‘A Cock and Bull Story?—Problems with the Protection of Animal Welfare in EU Law and Some Proposed Solutions’, Journal of Environmental Law, (20) 3/2008, p. 389; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017-3, p. 584. 20 Article 3(6) Treaty on the European Union (‘TEU’). 21 For example, could animal welfare justify a prohibition on the intensive use of animals in intensive farming sector when there is no longer mass consumption of meat in respect to the functioning of the internal market, see also: E. Spaventa, ‘Case-189/01, ‘H. Jippes, Afdeling Groningen van de Nederlandse Vereniging tot Bescherming van Dieren, Afdeling Assen en omstreken van de Nederlandse Vereniging tot Bescherming van Dieren / Minister van Landbouw, Natuurbeheer en Visserij’, Common Market Law Review (39) 5/2002, p. 1165; D. Ryan & A. Nurse, ‘Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review 2013, p. 103; CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands), para. 75. 22 D. Ryan & A. Nurse, ‘Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review 2013, p. 103. 23 CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (United Kingdom/Compassion in World Farming); C. Barnhard, The Substantive Law of the EU: The Four Freedoms, Oxford: OUP 2013, p. 155.

1.4 Research question Based on the aforementioned, it is uncertain to which extent EU law can improve the protection of farm animal welfare in light of recent scientific and philosophical insights. Therefore, the main question of this thesis is:

What is the status of farm animal welfare within EU law, with regard to its protection on both the EU and Member State level?

The main question will be answered through the answering of the following sub-research questions:

- What is the legal historical and philosophical development of animal welfare law?

- In which way can Article 13 TFEU contribute to the protection of animal welfare in the European agricultural sector?

- To which extent is farm animal welfare protected adequately within relevant EU law?

- To which extent can Member States protect farm animal welfare in respect to EU internal market law?

1.5 Methodology The research methodology of this thesis is mainly based on legal doctrinal research and a qualitative approach.24 It starts with discussing Article 13 TFEU, which is the main EU primary provision on animal welfare. Furthermore, seven relevant secondary farm animal welfare laws are analyzed in relationship to the three animal welfare requirements, the four animal welfare objectives, and the notion of ‘sentient beings’.25 Moreover, EU farm animal welfare is analyzed within case-law and the CAP, as well as within the context of enhancement through the means of positive integration. Finally, the last part of the analysis discusses to which extent EU law allows Member State to enact domestic animal welfare measures. In addition, the legal doctrinal research is complemented by both English and Dutch literature studies on law26 and animal welfare (science), through snowball sampling.27 Furthermore, this thesis conducts a legal historical analysis on the position of animals and the development of animal welfare law.28 It analyzes ancient laws and legal historical literature, in conjunction with a theoretical triangulation to provide the general historical context.29 Also, this research assesses the position of animals and animal welfare within the internal market and economics through a theoretical triangulation. This research thereby uses empirical data acquired by desk research.30

24 Legal doctrinal research assesses EU primary law, relevant secondary laws and case law, see: T. Hutchinson & N. Duncan, ‘Defining and describing what we do: doctrinal legal research’, Deakin Law Review, (17) 2012-1, p. 83-119; M.G. IJzermans, 'Lessen geleerd: onderwerp, object, en theoretisch kader van rechtswetenschappelijk onderzoek', LaM 2015; S. Taekema, 'Theoretical and Normative Frameworks for Legal Research: Putting Theory into Practice', LaM 2018; G. van Schaaijk, 'Praktijkgericht juridisch onderzoek', LaM 2011, p. 88, 102. 25 Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes; Council Directive 1999/74/EC & Commission Directive 2002/4/EC of 30 January 2002 on the registration of establishments keeping laying hens; Council Regulation 1/2005 of 22 December 2004 on the protection of animals during transport; Council Directive 2007/43/EC of 28 June 2007 laying down minimum rules for the protection of chickens kept for meat production; Council Directive 2008/119/EC of 18 December 2008 laying down minimum standards for the protection of calves; Council Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs; Council Reg. 1099/2009 of 24 September 2009 on the protection of animals at the time of killing. 26 C. Barnhard, The Substantive Law of the EU: The Four Freedoms, Oxford: OUP 2013; D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014; R. Ludwig & R. O’Gorman, ‘A Cock and Bull Story?—Problems with the Protection of Animal Welfare in EU Law and Some Proposed Solutions’, Journal of Environmental Law, (20) 3/2008; E. Spaventa, ‘Case-189/01, H. Jippes, Afdeling Groningen van de Nederlandse Vereniging tot Bescherming van Dieren, Afdeling Assen en omstreken van de Nederlandse Vereniging tot Bescherming van Dieren / Minister van Landbouw, Natuurbeheer en Visserij’, Common Market Law Review (39) 5/2002; D. Ryan & A. Nurse, ‘Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review 2013; D. Ryland, ‘Advancing animal welfare: state, society and economy’, in: A.F. Modrzewski, Democratic and social state under the rule of law: society, politics, economy’, Krakow: Krakow University & The Jagiellonian University 2014; T. Camm & D. Bowles, ‘Animal Welfare and the Treaty of Rome – a Legal Analysis of the Protocol on Animal Welfare and Welfare Standards in the European Union’, Journal of Environmental Law (2) 12/2000. 27 Snowball sampling examines the consulted literature or case-law of other relevant literature and case-law, see: G. van Dijck & M. Snel, Methoden van rechtswetenschappelijk onderzoek, The Hague: Boom Juridische Uitgevers 2018, p. 39. 28 Legal historical research differs from legal doctrinal research, see: M. Snel, Meester(s) over bronnen, The Hague: Boom Juridische Uitgevers 2016, p. 11-12; W. Pintens, Inleiding tot de rechtsvergelijking, Loiven: Universitaire Pers 1998, p. 16. 29 This includes literature from disciplines such as, theology, anthropology, general history and economics. 30 In particular from Eurostat and the EU-barometer, see: Eurostat, www.ec.europa.eu/eurostat; Decision 2010/504/EU, Commission Decision of 17 September 2012 on Eurostat.

1.6 Research scope In principle, this research focuses on the status of animal welfare within EU law and discusses to which extent EU law allows the protection of animal welfare on both the EU and the national level. Notwithstanding the scope of application of Article 13 TFEU, this research focusses on farm animal welfare. 31 This choice is based on recent animal welfare issues within the agricultural sector and the upcoming social-economic challenges concerning animal welfare protection.32 Additionally, this research takes the political perspectives into account as EU law is derived from the interaction between EU institutions and Member States.33 Nevertheless, the Treaties, secondary law, and the case-law of the CJEU remain fundamental within doctrinal legal research.

With regard to the concepts of animal health and welfare, EU law uses these both separately and interchangeably.34 Therefore, animal health is regarded as an inherent part of animal welfare, unless the context provides otherwise.

Furthermore, academic literature addresses ‘animals’ as ‘non-human animals’ to indicate that humans are also animals.35 Notwithstanding the justification behind the reference to ‘non-human animals’, this research refers to ‘animals’ because the common legal understanding of animals excludes humans.

Finally, the author declares no potential conflicts of interest with regard to the research, authorship, and/or publication of this thesis. 1.7 Preliminary argument This thesis argues preliminary that EU law contributed to the protection of farm animal welfare, but does not provide a common animal-based welfare standard or a duty to improve. Nevertheless, EU law provides certain legal conditions to establish an animal-based framework. Firstly, EU primary law recognizes animals as sentient beings and obliges the EU to pay full regard to animal welfare when they implement and formulate policies concerning the CAP.36 Therefore, Article 13 TFEU the EU bestows an obligation towards animal welfare protection. Presumably, Article 13 TFEU legitimizes the CJEU to assess animal welfare measures, or its application, more in-depth. Furthermore, it is assumed that EU farm animal welfare laws provide only a minimum level of protection. Arguably, the enforcement mechanisms do not provide effective protection due to the scale of animal production and its cross-border nature.

31 From a pragmatic perspective, the focus on agriculture provides enough time to conduct the required analyses . 32 Therefore, the findings of this thesis do not necessarily apply to the welfare requirements of wild animals, laboratory animals and pets. 33 Therefore, the following documents are analysed: motions the European parliament, Commission strategy’s on animal welfare, reports conducted at behest of the Commission or the European Parliament, European parliamentary debates and the statistics of Eurostat’s on animal welfare among the European citizens. 34 In strict sense, animal health only entails the physical conditions of an animal and usually refers to the protection of the physical conditions of species. Animal health, however, also entails the physical conditions of an individual animal and forms therefore an inherent part of animal welfare. 35 See, for instance: E. Meijer, Political Animal Voices (Diss. Amsterdam UvA), Amsterdam: Amsterdam University Press 2017; K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018-55; A.C. Woodhall, Addressing anthropocentrism in nonhuman ethics: evolution, morality, and nonhuman moral beings (diss. Birmingham) Birmingham: University of Birmingham Research Archive 2017; P. Sobbrio, ‘The Relationship between Humans and Other Animals in European Animal Welfare Legislation’, Relations Beyond Anthropocentrism 2013. 36 Article 13 TFEU.

With regard to the adoption of domestic provisions by Member States, the free movement of goods probably restricts this possibility. In particular, in case of harmonized matters, such a farm animal welfare. Presumably, Member States could also improve animal welfare by providing a derogation from EU competition law based on farm animal welfare protection. This would allow undertakings and business operators to develop animal welfare initiatives. Lastly, it is held that without a level playing field, domestic provisions are insufficient to enhance the protection of animal welfare.37 1.8 Theoretical framework Now that research problem and approach are introduced, the theoretical framework briefly explains the definition of animal welfare that is used in this thesis. It also explains the concept of animal welfare law and how it differs from the concept of animal rights.

1.8.1 Animal welfare To understand the concept of animal welfare, this paragraph defines the main characteristics of animal welfare. It also explains that animal welfare is not a neutral concept and consists of different animal welfare objectives.

‘Animal welfare’ is defined as the characteristics of an individual animal at a certain time and concerns the state of the animals’ various coping mechanisms to their environment in relation to their feelings, pathology, productivity, and physiology. 38 Therefore, animal welfare encompasses more than only physical animal health requirements but also the sentient nature of animals. 39 ‘Sentience’ entails the cognitive capacity 40 of animals to feel, perceive, and experience emotional states and a sense of awareness regarding their coping mechanism with respect to their environment.41

37 M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 98-100. 38 Article 7.1.1 Terrestrial Animal Health Code 2018, World Organization for Animal Health (OIE); A.F. Fraser & D.M. Broom, Domestic Animal Behaviour and Welfare, Wallingford: CABI 2015, p. 7, 26, 68; D.M. Broom, ‘Assessing welfare and suffering’, Behavioural Processes (25) 1991, p. 117; B. Nicks & M. Van den Heede, ‘Animal health and welfare: equivalent or complementary?’, in: D.J. Mellor & D. Bayvel, ‘Animal Welfare: focusing on the future’, OIE Scientific and Technical Review (33) 2014/1, p. 98; D.M. Broom, ‘Cognitive ability and sentience: Which aquatic animals should be protected?’, Diseases of Aquatic Organisms (75) 2007, p. 99–108; J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 4-6. 39 Animal health and animal welfare are therefore different, yet interlinked, concepts, see: rec. 7 Reg. 2016/429 Animal Health Law. 40 Sentience, however, is not defined by the degree of cognition, but by the expression of awareness and emotions through complex cognitive processes or abilities, see: H. Proctor, ‘Animal Sentience: Where are We and Where are We Heading?’, Animals (Basil) (2) 2012, p. 631-632; D.M. Broom, ‘Cognitive ability and sentience: Which aquatic animals should be protected?’, Diseases of Aquatic Organisms (75) 2007, p. 101-103. 41 J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 11, 16; P. Le Neindre, E. Bernard, A. Boissy e.a., Animal consciousness, ESFA supporting publication 2017 (conducted by: INRA), p. 72-102, 158-159; L. Yangling et al., ‘Empirical analysis of pig welfare levels and their impact on pig breeding efficiency— Based on 773 pig farmers’ survey data’, PLoS ONE (12) 2017, p. 9-11; D.M. Ferguson, C. Lee & A. Fisher (eds.), Advances in Sheep Welfare, Cambridge: Woodhead Publishing 2017, p. 94, 124, 148, 288-292; D.M. Broom, ‘Considering animals’ feelings: Précis of Sentience and animal welfare (Broom 2014)’, Animal Sentience (5) 2016/1, p. 2, 9; A.F. Fraser & D.M. Broom, Domestic Animal Behaviour and Welfare, Wallingford: CABI 2015, p. 13; A. Boissy & C. Lee, ‘How assessing relationships between emotions and cognition can improve farm animal welfare’, Revue scientifique et technique (33) 2014-1, p. 103-110; D.M. Broom, Sentience and Animal Welfare, Wallingford: CABI Publishing 2014, p. 5-6; I.J.H. Duncan, ‘The changing concept of animal sentience’, Applied Animal

The environment should enable animals to demonstrate their behaviour according to their biology and control over their coping mechanisms. 42 ‘Natural behaviour’ resembles the animals’ ‘in-its-nature- behaviour’, which entails its ‘needs’ and abilities to reach its goal states in relationship to the given environment.43 Providing pigs, for instance, with long-stemmed straw stimulates their ‘natural behaviour’ to create an area for defecation, which improves their cleanliness and, presumably, their state of health. 44 In contrast, restricting the animals’ ‘in-its-nature-behaviour’ results in unnatural behaviour, which affects the animal welfare negatively.45 Furthermore, animal welfare is defined by parameters, which literature categorizes into four objectives.46

Behaviour Science (100) 2006, p. 13-14; E.T. Gieling, R.E. Nordquist & F.J. van der Staay, ‘Assessing learning and memory in pigs’, Animal Cognition (14) 2011, p. 151–173. 42 Cows, for instance, prefer to be outside, which can be regarded as ‘natural’. During hot summers, however, they like to be inside, which therefore should be facilitated by the given environment, see: J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 135; J. Yeates, ‘Naturalness and Animal Welfare’, Animals (8), 53, 2018-4, p. 5-8; T. Christensen et al., ‘How to improve farm animal welfare? Four main approaches viewed from an economic perspective’, Animal Welfare (28) 2019, p. 96-97; F. Fraser & D.M. Broom, Domestic Animal Behaviour and Welfare, Wallingford: CABI 2015, p. 7, 9, 14; S.D. Held & M. Špinka, ‘Animal play and animal welfare’, Animal Behaviour (81) 2011, p. 891–899; R.A. Hinde, W.H. Thorpe & M.A. Vince, ‘The following responses of young coots and moorhens’, Behaviour (9) 1956, p. 214-242. 43 Gygax & Hillmann define ‘in-its-nature’ behaviour as proximate behaviour control on the basis of the animal’s wants and ability to reach their goal, given their biology, control of coping mechanism and interaction to the environment, see: L. Gygax & E. Hillmann, ‘“Naturalness” and Its Relation to Animal Welfare from an Ethological Perspective’, Agriculture (8) 2018; F. Ohl & F.J. Van der Staay, ‘Animal welfare: At the interface between science and society,‘ The Veterinary Journal (192) 2012, p. 17; Yeates, however, acknowledges the link between the performance of positive and animal behaviour in respect to animal welfare, but regards ‘naturalness’ as a state that is unaffected by humans. This definition does not say whether the behaviour restricts or strengthens the level animal welfare and requires therefore an additional behaviour and welfare assessment, see: J. Yeates, ‘Naturalness and Animal Welfare’, Animals (8), 53, 2018-4, p. 5-8. 44 L. Gygax & E. Hillmann, ‘“Naturalness” and Its Relation to Animal Wel fare from an Ethological Perspective’, Agriculture (8) 2018, p. 3; M. Ocepek et al., ‘Drinker position influences the cleanness of the lying area of pigs in a welfare-friendly housing facility’, Applied Animal Behavior Science (198) 2018, p. 44-51. 45 For instance, sucking-behaviour by calves is their in-nature-behaviour. In captivity calves are separated from their mothers, which results in cross-sucking of the other body parts and causes diseases. Allowing minimum contact between mothers and calves, however, prevents cross-sucking. The same applies to horses. In case their in-nature- behaviour is restricted, they suffer from stable vices. Improving the horses’ social and nutritional environment or redirecting its activities prevents or cures stall vices as it removes the causal factors. See: L. Gygax & E. Hillmann, ‘”Naturalness” and Its Relation to Animal Welfare from an Ethological Perspective’, Agriculture (8) 2018, p. 3; B.A. Roth et al., ‘Influence of artificial vs. mother-bonded rearing on sucking behaviour, health and weight gain in calves’, Applied Animal Behaviour Science (119) 2009, p. 143-150; M. Elsayed Mahmoud, F. Ali Mahmoud & A. Elsayed Ahmed, ‘Impacts of self- and cross-sucking on cattle health and performance’, Vet World (9) 2016, p. 923-926; J. Cooper & P. McGreevy P ‘Stereotypic Behaviour in the Stabled Horse: Causes, Effects and Prevention without Compromising Horse Welfare’, in: N. Waran, The Welfare of Horses (Animal Welfare vol. 1), Dordrecht: Springer 2007, p. 99-214. 46 These objectives are: basic animal health, affective state to prevent states as pain etc., allowing elements of natural behaviour and access to natural elements, see: J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 134-136; Frasers only mentions health, affective states and natural living, see: D. Fraser, ‘Understanding animal welfare’, Acta Veterinaria Scandinavica (50) 2008-1; additionally, these objectives correspond with the Five Fundamental Freedoms of the European Convention for the Protection of Animals Kept for Farming 1976 and the Report on Priorities for Animal Welfare Research and Development, Tolworth Tower: FAWC 1993, p. 3-4.

These objectives and their integral relationship are not always equally observed within animal welfare policies.47 This is because the desired level of animal welfare (science) also depends on the cultural and political context, either defined by legal obligations or benchmarks. Hence, it should be kept in mind that animal welfare is also value-based.48

1.8.2 Animal welfare law versus animal rights Legal protection of farm animals can be achieved through animal welfare law or animal rights, which are. both based on different rationales.

Animal welfare law is a self-established human concept to mitigate the negative consequences of animal exploitation, which can be divided into three types of requirements. Its scope of protection and legal contents are thereby determined by the legislator. In essence, animal welfare law constitutes a premise on acceptable necessary harm and unacceptable unnecessary harm in order to determine acceptable farming conditions.49 It does not seek justice but aims to compromises the suffering caused by animal exploitation. 50 The philosophy underlying animal welfare law is based on both deontological and utilitarian approaches.51 Utilitarianism regards animal exploitation justifiable when it benefits the greatest number of people.52 Deontology allows animal exploitation as long as is it complies with the given (animal welfare) standard. 53 Furthermore, animal welfare requirements can be divided into three categories; resource-based, management-based and animal-based.54 It depends on the given activity, which type or

47 Which leads to contradictory legislation and polices or conflicting results within animal welfare science. 48 D. Fraser, ‘Understanding Animal Welfare’, Acta Veterinaria Scandinavia (50) 2008-1; F. Ohl & F.J. Van der Staay, ‘Animal welfare: At the interface between science and society,‘ The Veterinary Journal (192) 2012, p. 17-19. 49 P. Sankoff, ‘The Protection Paradigm: Making the World a Better Place for Animals?’, in: P. Sankoff, S. White & C. Black (eds.), Animal Law in Australasia, Sydney: The Federation Press 2013, p. 7-8; J. Dubrulle& M. Lewis, ‘Defining Animal law’, Animal Law March 2016. 50 V. Pocar, ‘Animal Rights: A Socio-Legal Perspective’, Journal of Law and Society (19), 1992-2, p. 227-228; D. Fraser, ‘Animal Welfare and the Intensification of Animal Production’, in: P.B. Thompson (ed.), The Ethics of Intensification Agricultural Development and Cultural Change (The International Library of Environmental, Agricultural and Food Ethics Vol. 16), Cham: Springer 2008: p. 186-188. 51 U.J. Frey & F. Pirscher, Willingness to pay and moral stance: The case of farm animal welfare in Germany, PLoS ONE (13) 2018; E. Szűcs et al., ‘Animal Welfare in Different Human Cultures, Traditions and Religious Faiths’, Asian- Australasian Journal of Animal Sciences (25) 2012-11, p. 1504-1505. 52 J. Bentham, An Introduction to the Principles of Morals and Legislation, London: T. Payne 1789, p. ii; P. Singer, Animal Liberation: A New Ethics for Our Treatment of Animal, New York: Avon Books 1975: reprinted in: P. Singer, Animal Liberation, London: Vintage Publishing 2015; P. Singer, ‘All animals are equal’, Philosophical Exchange (1) 1974, p. 106-107; J.S. Mill, Utilitarianism, London: Longmans, Green, Roberts and Green 1864, p. 16-17; for more on the subject, see: C.M. Naconecy, Ética & animais: um guia de argumentação filosófica, Porto Alegre: EDIPUCRS 2006, p. 49, 62. 53 E. Szűcs, R. Geers, T. Jezierski, E.N. Sossidou & D. M. Broom, ‘Animal Welfare in Different Human Cultures, Traditions and Religious Faiths’, Asian-Australasian Journal of Animal Sciences (25) 2012-11, p. 1504; Ng. Yew-Kwang, ‘Some broader issues of social choice’, in: P.K. Pattanaik & M. Sales (eds.), Social Choice and Individual Values, Amsterdam, New York & Oxford: North-Holland Publishing Company (145) 1983, p. 165. 54 Resource-based requirements sets minimum standards to animal’s environment and resources, management- based requirements defines the duties of animal managers, animal-based requirements determine the actual desired health or behavioral outcomes and set benchmarks, see: J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 131.

types of requirements are suitable. 55. Figure 1.2 thereby summarizes schematically the relationship between animal welfare and animal welfare requirements.

Figure 1.2 – Animal welfare overview

Lastly, animal welfare law does not say anything about the level of protection or type of provisions. These provisions can provide mere minimum standards or impose enforceable duties and mandatory obligations.

In contrast, the animal rights-position aims to extend the concept of human rights and equal moral consideration towards animals due to their capacity to suffer or degree of sentience. 56 Therefore, it challenges the human-domination over animals and regards the exploitation of animals by humans unacceptable. 57 However, the concept of human rights can only be applied to humans. Rights are based

55 See Figures 4.1 – 4.4.7 within paragraph 4.4. 56 J.E. Schaffner, An Introduction to Animals and the Law, New York: Palgrave Macmillan 2011, p. 184; J. Bentham, An Introduction to the Principles of Morals and Legislation 1781, Oxford: Clarendon Press 1907, reprinted in: Dover Philosophical Classics, New York: Dover Publications 2007, p. 311; P. Singer, ‘All animals are equal’, Philosophical Exchange (1) 1974, p. 106-107; C.J. Sherry, Animal Rights: A Reference Handbook, Santa Barbara: ABC-BLIO 2009, p. 1-35; A. Peters,’Liberté, Égalité, Animalité: Human–Animal Comparisons in Law’, Transnational Environmental Law (5) 2016-1, p. 7-9; some scholars even propose ‘bio-centric legislation’ because it would extend the status of moral object to all living things in nature, see: M. Yu & Y. Lei, ‘ Biocentric Ethics’, Environment and Development (13) 2009, vol. 2, in: Encyclopedia of Life Support Systems (EOLSS), p. 253; A. Schweitzer, Philosophy of Civilization (trans. C.T. Campion), Buffalo: Prometheus 1987, p. 251-254; P. Singer, ‘All animals are equal’ , Philosophical Exchange (1) 1974, p. 103, Reprinted in: H. LaFollette, Ethics in Practice: Third Edition, Malden, MA: Blackwell 2007, p. 171-180. 57 J. Lubinksi, ‘Introduction to Animal Rights’, Animal Legal & Historical Center 2002, www.animallaw.info (search on: Introduction to animal rights); E. Szűcs, R. Geers, T. Jezierski, E.N. Sossidou & D. M. Broom, ‘Animal Welfare in Different Human Cultures, Traditions and Religious Faiths’, Asian-Australasian Journal of Animal Sciences (25) 2012- 11, p. 1504-1505; K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018-55, p. 59-60.

on reciprocity, a sense of responsibility and the human conception of justice and morality, which are established through the means of rationality. 58 Human rationality is based on the ability to make an independent, thoughtful moral consideration about right or wrong, along with altruistic tendencies and the ability to reflect. It is also based on rational speech. This enables humanity to exchange and influence each other’s thoughts in order to collectively transform reality and establish a collective conscience.59 Animal communication is not perceived by humans as rational speech, though, they can understand this of type communication. 60 Notwithstanding the notion of species-specific morality, animals cannot be reciprocally bound by human concepts such as rights, justice, duties, and responsibilities. Hence, the protection of farm animals within the EU can be achieved by improving animal welfare law. 1.9 Reading guide

This thesis is structured as follows. The first chapter presents the theoretical framework and research introduction. Next, chapter two provides a legal historical analysis of EU animal welfare law. Chapter three discusses Article 13 TFEU more in-depth, while chapter four analyses farm animal welfare within relevant EU law. Subsequently, Chapter five discusses to which extent Member States can adopt domestic animal welfare provisions, in respect to EU internal market law. Lastly, chapter six states the conclusion of this thesis by answering the main research question.

58 G. Duckler, ‘Two Major Flaws of The Animal Rights Movement’, Animal Law Journal (14) 2008-2, p. 187-193; N.H. Lee, ‘In Defense for Humanity: Why Animals Cannot Posses Human Rights’, Regent University Law Review (26) 2014- 1, p. 470-472, 474; F. Neerhoff & D. Bakker, ‘(Dieren)ethici verblind door antropocentrisme’, Civis Mundi (66) 2018; F. Neerhoff & D. Bakker, ‘Dierenethiek onder de wetenschappelijke nullijn’, Civis Mundi (69) 2018; G. Steiner, Anthropocentrism and Its Discontents: The Moral Status of Animals in the History of Western Philosophy, Pittsburgh: University of Pittsburgh Press 2005, p. 112-131; L. White, ‘The Historical Roots of Our Ecologic Crisis’, Science (155) 1967-3767, p. 1205; S. Brooman & D. Legge, Law Relating to Animals, London: Cavendish Publishing Limited 1997, p. 50-61; C.J. Bastmeijer (ed.), Wilderness Protection in Europe, Cambridge: Cambridge University Press 2017, p. 3-6; T. Lemaire, Onder dieren: Voor een diervriendelijke wereld, Amsterdam: Ambo|Anthos 2017, p. 27; J. Rawls, A Theory of Justice (Revisited edition 2005), Cambridge (USA): Harvard University Press 1971, p. 448; T. Aquinas, Summa Contra Gentiles, iii. 112 in: R.D. Ryder, Animal Revolution: Changing Attitudes towards Speciesism, Oxford: Berg Publishers 2000, p. 29. 59 Hence, langue bestows or deprives others from holding rights. The ancient Greeks, for instance, considered anyone that did not speak their langue as non-Greeks or “barbarian” and therefore denied them the same rights as their own, see: H.C. Seeba, ‘The Rhetoric of Origin: Language and Exclusion in Historical Perspective’, TRANSIT (1) 2004-1, p. 1-2; M. Boletsi, Barbarism and Its Discontents, Stanford: Stanford University Press 2013, p. 64-70, 75-77; K. Vlassopoulos, Greeks and Barbarians, Cambridge: Cambridge University Press 2013, p. 1-7; S.C. Neff, War and the Law of Nations: A General History, Cambridge: Cambridge University Press 2005, p. 29-30; see also: H. Arendt, The Human Condition, Chicago: The University of Chicago Press 1958, p. 3-4, 27, 204, 243; G. Duckler, ‘Two Major Flaws of The Animal Rights Movement’, Animal Law Journal (14) 2008-2, p. 189, 192. 60 G. Duckler, ‘Two Major Flaws of The Animal Rights Movement’, Animal Law Journal (14) 2008-2, p. 187-188, 192- 193; N.H. Lee, ‘In Defense for Humanity: Why Animals Cannot Posses Human Rights’, Regent University Law Review (26) 2014-1, p. 470-472, 474; E. Meijer, Political Animal Voices (Diss. Amsterdam UvA), Amsterdam: Amsterdam University Press 2017, p. 13-14, 146, 249-252; E. Eskens, Democratie voor Dieren, Amsterdam: Uitgeverij Atlas 2009; E. Meijer, ‘Interspecies Encounters and the Political Turn: From Dialogues to Deliberation’, in: A. Woodhall, & G. Garmendia da Trindade (Eds.), Ethical and Political Approaches to Nonhuman Animal Issues, Cham: Palgrave Macmillan 2017, p. 201-226; P.B. Cliteur & J. Vink, ‘De gelijkheid en vrijheid van mensen en andere dieren’, in: J. Doomen & A. Ellian (ed.), De strijd van de gelijkheid en de vrijheid, Den Haag: Boom Juridische Uitgevers 2015, p. 96- 97; M.A. Warren, ‘Difficulties with the Strong Rights Position’, Between the Species (2) 1986-4, p. 170-171.

2 HISTORY OF ANIMAL WELFARE LAW

2.1 Introduction In this chapter, paragraphs 2.2 – 2.7 discuss the main historical developments concerning the position of animals and their legal protection.61 Based on these analyses, paragraph 2.8 provides some thoughts on rethinking the human-animal relationship. Finally, paragraph 2.9 states the conclusion of this chapter. 2.2 Shifting the spiritual boundary Before the ‘Neolithic Revolution’, humans perceived animals as spiritual equals due to their animistic believes.62 Even though they hunted animals for their benefit, religious iconography and feeding patterns indicate a spiritual-based human-animal relationship without a property-based notion of animals.63 The switch to sedentary agriculture increased the local population, which as a consequence exhausted local resources.64 Animal husbandry, therefore, became necessary to sustain the community. However, animal exploitation also provided wealth, which presumably led to the introduction of property rights.65

61 Note that most of the examples are supported by more than one motivation and depend on different factors. 62 H.C. Peoples, P. Duda & F.W. Marlowe, ‘Hunter-Gatherers and the Origins of Religion’, Human nature (Hawthorne, N.Y.) (27) 2016-3, p. 274, 277; N. Russel, Social Zooarchaeology: Humans and Animals in Prehistory, Cambridge: Cambridge University Press 2012, p. 168-170; M. Cartmill, A View to a Death in the Morning, Cambridge: Harvard University Press 1993, p. 12-13; N. Russel, ‘Neolithic Human-Animal Relations’, Groniek Historisch Tijdschrift (206/207) 2016, p. 21. 63 In contrast to the later domesticated farm animals, wild animals played a more symbolic role within prehistoric iconography in relationship to spiritual and religious ceremonies, see: N. Russel, ‘Neolithic Human-Animal Relations’, Groniek Historisch Tijdschrift (206/207), 2016, p. 21-24; K.F. Kiple & K.C. Ornelas (ed.), The Cambridge World History of Food, Cambridge: Cambridge University Press 2000, p. 14, 65; J. Robinson, ‘The First Hunter-Gatherers’, in: V. Cummings, P. Jordan & M. Zvelebil (eds.), The Oxford Handbook of the Archaeology and Anthropology of Hunter- Gatherers, Oxford: Oxford University Press 2014, p. 178-188. 64 Sedentary agriculture attracted competing herbivores, who were captured and domesticated for their meat or the purpose of ceremonial sacrifice: K.F. Kiple & K.C. Ornelas (ed.), The Cambridge World History of Food, Cambridge: Cambridge University Press 2000, p. 3, 11, 73, 491-492, 532-533; see also: N. Russel, ‘Neolithic Human-Animal Relations’, Groniek Historisch Tijdschrift (206/207), 2016, p. 21-24; M. Groot, ‘Animals and animal husbandry’, in: C. Haselgrove, P.S. Wells & K. Rebay-Salisbury (eds.), The Oxford Handbook of the European Iron Age, Oxford: Oxford University Press 2018; G. Kron, ‘Animal Husbandry’, in: G.L. Campbell (ed.), The Oxford Handbook Animals in Classical Thought and Life, Oxford: Oxford University Press 2014; J. Steward, ‘The Concept and Method of Cultural Ecology’, in: N. Haenn & R. R. Wilk (eds.), The Environment in Anthropology: A Reader in Ecology, Culture, and Sustainable Living, New York and London: New York University Press 2006, p. 7. 65 Property rights within the animal husbandry increased the productivity of animals in conservative communities and, presumably, partly benefited the coevolution of farming, see: B. F. Byrd, ‘Reassessing the Emergence of Village Life in the Near East’, Journal of Archaeological Research (13) 2005-13; N. Russel, ‘Neolithic Human-Animal Relations’, Groniek Historisch Tijdschrift (206/207), 2016, p. 22-24; E. Tchernov, ‘Commensal Animals and Human Sedentism in the Middle East’, in: J. Clutton-Brock & C. Grigson (ed.), Animals and Archaeology: 3. Early Herders and their Flocks, Oxford: British Archaeological Reports 1984, p. 91-115; S. Bowles & J-K Choi, ‘Coevolution of farming and private property during the early Holocene’, PNAS (110) 2013/22, p. 8830-8835; E.M. Gallagher, S.J. Shennan & M.G. Thomas, ‘Transition to farming more likely for small, conservative groups with property rights, but increased productivity is not essential’, PNAS (112) 2015-46, p. 14221-14222; K.F. Kiple & K.C. Ornelas (ed.), The Cambridge World History of Food, Cambridge: Cambridge University Press 2000, p. 64.

This development resulted in the economization of animals, which shifted the spiritual boundaries.66 Over time, animal exploitation became regulated and animals became incorporated within ancient legal systems as property.67 2.3 The ancient world Mesopotamian law recognized human-ownership over animals on secular utilitarian grounds in order to protect their economic system and provided civil legal remedies in case of damage caused by animals.68 As an agrarian society, the ancient Romans presumably also acknowledged human-ownership over animals on secular utilitarian grounds.69. Their ‘ius civile’ reflects a property-based notion animals70 and provides that animals even held lesser rights than slaves. 71

66 G. Steiner, ‘Animal Rights and the Distorting Power of Anthropocentric Prejudice’, in: A. Woodhall & G. Garmendia da Trindade (ed.), Ethical and Political Approaches to Nonhuman Animal Issues, London: Palgrave Macmillan 2017, p. 177; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017/3, p. 549; G.L. Francione, ‘Animals-Property or Persons?’, Rutgers Law School (Newark) Faculty Papers (21) 2004, p. 4; S.M. Wise, ‘Animal Rights, One Step At a Time’, in: C.R. Sunstein & M.C. Nussbaum (ed.), Animal Rights: Current Debates and New Directions, New York: University Press 2004, p. 22. 67 T.G. Kelch, ‘A Short History of (Mostly) Western Animal Law (Part I)’, Animal Law Review (23) 2012, p. 29-30; S.M. Wise, ‘The Legal Thinghood of Nonhuman Animals, 23 B.C’, Environmental Affairs Law Review (471) 1996, p. 476- 477. 68 This included legal provisions such as monetary compensation and property settlements in case of a harm by a goring ox, see: paras. 241-251 Code of Hammurabi (1728 to 1686 BC); para. 12 Edict of Ammisaduqa (1646-1626 BC), see: ‘The Edict of Ammisaduqa’ (trans. J.J. Finkelstein), Revue d'Assyriologie et d'archéologie orientale (63) 1969, p. 45-64, in: J.B. Pritchard (ed.), The Ancient Near East: An Anthology of Texts and Pictures, Princeton & Oxford: Princeton University Press 2011, p. 183-186; S.M. Wise, ‘The Legal Thinghood of Nonhuman Animals, 23 B.C’, Environmental Affairs Law Review (471) 1996, p. 476-477. 69 M. Beard, SPQR, London: Profile Books 2016, p. 106; P. Garnsey & R. Saller (eds.) et al., The Roman Empire: Economy, Society and Culture, Oakland: University of California Press 2015, p. 71, 78-79, 231; S.M. Wise, ‘The Legal Thinghood of Nonhuman Animals, 23 B.C’, Environmental Affairs Law Review (471) 1996, p. 494, 502. 70 Damages caused by animals were seen as a ‘delicta privata’ and remediated by imposing civil liability on their owners (‘pauperies’), see: The Institutes of Justinian, Book I, Title III:1–2 (J. B. Moyle trans., 5th ed., Clarendon Press 1913); Inst. 2. 1. 12; Dig. 9.1.1.7 (Ulpianus ad Edcitum, 18); Dig. 9.2.2, Lex Aquilia I (Gaius, Provincial Edict, VII), in: R. Zimmermann, The Law of Obligations: Roman Foundations of Civilian Tradition, Oxford: Oxford University Press 1996, p. 976; Lex Aquilia III, in: D. Daube, ‘On the third chapter of the lex aquilia’, Law Quarterly Review (52), 1936-2, 253- 268; par. Table VIII 6, Twelve Tables, in: N. Lewis & M Reinhold, Roman Civilization, vol. 1, New York: Columbia University Press 1995; P. Stein, W.W. Buckland, A Text-book of Roman Law From Augustus to Justinian, Cambridge: Cambridge University Press 1968, p. 206-207; S. McMullen, Animals and the Economy, London: Palgrave Macmillan UK (The Palgrave Macmillan Animal Ethics Series) 2016, p. 11-26, 141-157, 160; S.M. Wise, ‘The Legal Thinghood of Nonhuman Animals, 23 B.C’, Environmental Affairs Law Review (471) 1996, p. 494, 496, 505; B.S. Jackson, ‘Liability for Animals in Roman Law: An Historical Sketch’, The Cambridge Law Journal (37), 1978-1, p.122-143; S.E. Bond, ‘Getting Sacked: Animals, Executions, and Roman Law’, History From Below 2015; for more on the nature of the ‘ius civile’, see: E.J.M.F.C. Broers, Geschiedenis van het straf- en schadevergoedingsrecht, Apeldoorn/Antwerpen: Maklu 2012, p. 15-17; R. Lesaffer, European Legal History: A Cultural and Political Perspective, Cambridge: Cambridge University Press 2012, p. 60-61, 67-68. 71 Even though slaves were ‘property’, the Roman jurist Hermogenian held: “all law is established for men’s sake”, see: Dig. 1.5.2, Hermogenianus, Libro Primo Iuris Epitomarum 1, in: T. Mommsen & P. Krueger (eds.), The Digest of Justinian (trans. A. Watson), Philadelphia: University of Pennnsylvania Press 1985; The Institutes of Gaius 10, Commentarius I:53 (trans. A.C. Oltmans, H.D. Tjeenk Willink 1967), Groningen: Tjeenk Willink 1967; Philo, Spec. Leg, 2.69, in: The Works of Philo: Complete and Unabridged (trans. C.D. Yonge), (Peabody) Massachusetts, Hendrickson Publishers Inc 1993; I.L.E. Ramelli, Social Justice and the Legitimacy of Slavery The Role of Philosophical Asceticism

In contrast to this position, Old Testament law regarded animals as lesser beings and subordinate to humans on theological grounds.72 Furthermore, Aristotle argued that animals were irrational and therefore held no rights. 73 Although some philosophers argued differently,74 his vision became dominant and influenced later Stoic’s.75 As Christianity became the Roman state religion, the property- based notion of animals within Roman law and Stoic philosophy intertwined with Christian theology.76

from Ancient Judaism to Late Antiquity, Oxford: Oxford University Press 2017, p. 94; C. Hezser, ‘Slaves and Slavery in Rabbinic and Roman Law’, in: C. Hezser (ed.), Rabbinic Law in Its Roman and Near Eastern Context, Tübingen: Mohr Siebeck 2003, p. 136-137; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017- 3, p. 549; A.M. Doss, ‘The Profit and Loss Report on Animal Rights: How Profit Maximization Has Driven the Stagnation of the Legal Identification of Animals as Property’, University of Massachusetts Law Review (13) 2018, Article 4; P. Stein, W.W. Buckland, A Text-book of Roman Law From Augustus to Justinian, Cambridge: Cambridge University Press 1968, p. 64. 72 For instance, the death of a human by a goring ox was held to be a crime against the divine and demanded capital punishment by stoning in order to avert the divine wrath on the entire community, see: Exodus. 21:28-32; The Tractate Sanhedrin 1.4, in: The Mishnah 383; S.M. Wise, ‘The Legal Thinghood of Nonhuman Animals, 23 B.C’, Environmental Affairs Law Review (471) 1996, p. 485-488; J.J. Finkelstein, ‘The ox that gored’, Transactions of the American Philosophical Society (71) 1981, p. 26-28; S.M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law, Eugene: Wipf & Stock Publishers 2006, p. 79-82. 73 Animals lacked reason, emotions, thought and beliefs, see: Aristotle, The ethics of Aristotle: the Nicomachean ethics (trans. J.A.K. Thomson, 1st ed 1953), London: Allen & Unwin 1953, p. 81; Aristotle, ‘Politics’, in: The complete works of Aristotle (trans. C. Lord, Chicago: The University of Chicago Press 2013), p. 14; R. Sorabji, Animals Minds and Human Morals: The Origins of the Western Debate, Ithaca: Cornell University Press 1995, p. 7-16, 68-71; A. Harden, Animals in the Classical World: Ethical Perspectives from Greek and Roman Texts, New York: Palgrave Macmillan 2013, p. 8-9, 48.; S. Brooman & D. Legge, Law Relating to Animals, London: Cavendish Publishing Limited 1997, p. 31-32; W.W. Hyde, ‘The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times’, Pennsylvanian Law Review (64) 1916, p. 698; P. Adamson & G.F. Edwards (eds.), Animals: A History, Oxford: Oxford University Press 2018, p. 43-44. 74 Pythagoras held that animals were part of ‘the community’ and opposed to killing and eating them; Porphyry, argued that animals were rational beings and therefore the concept of justice applied on them; Plutarch also held that animals were rational beings and therefore opposed to eating meat; Plato described animal trials in Athens (although these trials were only held to please the gods), see: Plato, De Leg, IX.12; J. Jones, Law and Legal Theory of the Greeks, Oxford: Clarendon Press 1950, p. 62; W.W. Hyde, ‘The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times’, University of Pennsylvania Law Review and American Law Register (64) 1916, p. 696-697; M.A. Violin, ‘Pythagoras- The First Animal Rights Philosopher,’ Between the Species (6) 1990-3, Article 8, p. 123; ‘Iamblichus’, in: F.M. Firth & A. Besant (ed.), The Golden Verses of Pythagoras and other Pythagorean Fragments (trans. W. Bridgman & T. Taylor 1804), Krotona: Theosophical Publishing House 1904, p. 67 (Symbol 39): reprinted in: The Golden Verses of Pythagoras, Global Grey 2018 (Ebook), p. 60; Iamblichus, Life of Pythagoras (trans. T. Taylor), London: J.M. Watkins 1818, p. 98: reprinted in: Iamblichus’ Life of Pythagoras, Rochester: Inner Traditions International 1986, p. 98; Porphyry, On Abstinence from Killing Animals (trans. G. Clark), Ithaca: Cornwell University Press 2000; Plutarch, ‘The Cleverness of Animals’, in: Plutarch’s Moralia Vol. XII. (trans. H. Cherniss & W.C. Hembold), Harvard: Harvard University Press 1957 (Loeb Classical Library No. 406); Plutarch, ‘The Eating of Flesh’, in: Plutarch’s Moralia Vol. XII. (trans. H. Cherniss & W.C. Hembold), Harvard: Harvard University Press 1957 (Loeb Classical Library No. 406). 75 S. Brooman & D. Legge, Law Relating to Animals, London: Cavendish Publishing Limited 1997, p. 31-32; W.W. Hyde, ‘The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times’, Pennsylvanian Law Review (64) 1916, p. 698; P. Adamson & G.F. Edwards (eds.), Animals: A History, Oxford: Oxford University Press 2018, p. 43-44; R. Lesaffer, European Legal History: A Cultural and Political Perspective, Cambridge: Cambridge University Press 2012, p. 76-77, 81, 94, 98. 76 S.M. Wise, ‘The Legal Thinghood of Nonhuman Animals, 23 B.C’, Environmental Affairs Law Review (471) 1996, p. 498-499, 502.

2.4 Teleological anthropocentrism Inversely, Christian theologians integrated Roman law and Aristotle’s’ philosophy within Christian theology.77 This development constituted a teleological anthropocentric perspective towards animals.78 Teleological anthropocentrism holds that the natural world is arranged by a designer purely for the benefit of mankind.79 According to St. Augustine of Hippo and St. Thomas of Aquinas, 80 animals were instinct- driven beings without consciousness, intelligence, or reason.81

77 E. Szűcs, R. Geers, T. Jezierski, E.N. Sossidou & D.M. Broom, ‘Animal Welfare in Different Human Cultures, Traditions and Religious Faiths’, Asian-Australasian Journal of Animal Sciences (25) 2012-11, p. 1499–1506; D. Ryder, Animal Revolution: Changing Attitudes towards Speciesism, Oxford: Berg Publishers 2000; R.D. Ryder, Speciesism, Painism and Happiness: A Morality for the Twenty-First Century, Luton: Andrews UK Limited 2017 (digital version), p. 38-62; L. White, ‘The Historical Roots of Our Ecologic Crisis’, Science (155) 1967-3767, p. 1205; G. Steiner, Anthropocentrism and Its Discontents: The Moral Status of Animals in the History of Western Philosophy, Pittsburgh: University of Pittsburgh Press 2005, p. 112-131; J. Serpell, In the Company of Animals: A Study of Human-Animal Relationships, Cambridge: Cambridge University Press 1996, p. 151; G.L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation, New York: Colombia University Press 2008, p. 131-132; B. Isacat, How to do Animal Rights, E-book 2015 (PDF-edition), www.animalethics.org.uk, p. 186, 189. 78 B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017/3, p. 547-585; P. Sobbrio, ‘The Relationship between Humans and Other Animals in European Animal Welfare Legislation’, Relations Beyond Anthropocentrism 2013, www.ledonline.it; R. Preece, Animals and nature: cultural myths, cultural realities, Vancouver: University of British Columbia Press 1999, p. 67-68; S.M. Wise, ‘How Nonhuman Animals Were Trapped In a Nonexistent Universe’, Animal Law Review (15) 1995, p. 36; see also: L. White Jr., ‘The Historical Roots of Our Ecologic Crisis’, Science (155) 1967, p. 1205-1206. 79 Anthropocentrism entails a worldview centred around human interest, experiences, values, cultural thoughts and practices. Within literature well-balanced anthropocentrism observes the interest of other non-human species, whereas unbalanced anthropocentrism is at the expense of other species, see: T. Hayward, ‘Anthropocentrism: A Misunderstood Problem’, Environmental Values (6) 1997-1, p. 51-52; A.C. Woodhall, Addressing anthropocentrism in nonhuman ethics: evolution, morality, and nonhuman moral beings (diss. Birmingham) Birmingham: University of Birmingham Research Archive 2017, p. 42; E.K. Campbell, ‘Beyond Anthropocentrism’, Journal of the History of the Behavioral Sciences (19) 1983, p. 54-67; regarding teleological anthropocentrism, see: S.M. Wise, ‘How Nonhuman Animals were Trapped in a Nonexistent Universe’, Animal Law Review (15) 1995, p. 19; D. Sedley, ‘Is Aristotle’s Teleology Anthropocentric?’, Phronesis (36) 1991, p. 180; P. Sarkar, Anthropocentrism: A Study in Environmental Philosophy (diss. Burdwan), Burdwan: The University of Burdwan 2012, p. 29-30. 80 Some scholars argue that Aquinas advocated a kind of ‘theological cosmocentrism’ because he also acknowledged the inherent goodness of al beings. However, ‘theological cosmocentrism’ still links animals to the well -being of humanity and is therefore anthropocentric. See: R.P. McLaughlin, Christian Theology and the Status of Animals – The Dominant Tradition and Its Alternatives, New York: Palgrave Macmillan Animal Ethics Series (1) 2014, p. 9; J. Berkman, ‘Towards a Thomistic Theology of Animality’, in: C. Deane-Drummond and D. Clough (eds), Creaturely Theology: On God, Humans and Other Animals, London: SCM Press 2009, p. 24; C. Deane-Drummond, Eco-Theology, Winona: Anselm Academic 2008, p. 103–104; W. French, ‘Beast Machines and the Technocratic Reduction of Life’, in: C. Pinches & J. B. McDaniel (eds), Good News for Animals? Christian Approaches to Animal Well-Being, New York: Orbis 1993, p. 39; M. Wynn, ‘Thomas Aquinas: Reading the Idea of Dominion in the Light of the Doctrine of Creation’, in: D.G. Horrell, C. Hunt, C. Southgate & F. Stavrakopoulou (eds), Ecological Hermeneutics: Biblical, Historical and Theological Perspectives, New York: T & T Clark 2010, p. 154–167. 81 Genesis 1:26; Genesis 1:30; Genesis 8:17; Genesis 9:3; Psalm 8:8; St. of Thomas Aquinas, The Summa Contra Gentiles (trans. Dominican Fathers, Leonine Edition 1923, Oxford: London Burns Oates & Washbourne 1924 ), Book II/Chapter 66, London: Aeterna Press 2014, p. 231; St of Thomas Aquinas, The Summa Theologica, second part of the second part/question 64, in: J.E. Stiefs, Summa Theologica: Complete and Unabridged in One Volume (trans. Fathers of the English Dominican Province, Benziger Bros Edition 1911, New York: Benzinger Bros 1947), second part of the second part/question 64, Independently published 2017, p. 473; R.P. McLaughlin, Christian Theology and the Status

Killing animals was only regarded sinful in case they were somebody else his property.82 Other major religions, such as Islam83 and Judaism84, also regarded animals subordinate to humans, though, at the same time condemned cruelty. 85 Teleological anthropocentrism influenced also future theologians, lawyers, and philosophers. For instance, Grotius, Descartes, and Rawls, animals were excluded from justice because they were irrational and therefore lacked rights. 86 Of course, there were attempts to reform the position of animals, but these ideas did not result in fundamental changes. 87 The earliest animal protection laws, therefore, were either a side effect88 or with anthropocentric intent.89

of Animals – The Dominant Tradition and Its Alternatives, New York: Palgrave Macmillan Animal Ethics Series (1) 2014, p. 8-20; St. Augustine of Hippo, The City of Gods (trans. M. Dods), Peabody: Hendrickson Publishers 2008, p. 24, 334, 345; C.J. Bastmeijer (ed.), Wilderness Protection in Europe, Cambridge: Cambridge University Press 2017, p. 4; S.M. Wise, ‘How Nonhuman Animals were Trapped in a Nonexistent Universe’, Animal Law Review (15) 1995, p. 33-35. 82 Nonetheless, Aquinas forbade cruelty towards animals because it would tempt mankind to exercise cruelty towards others or led to financial losses, see: St. Thomas of Aquinas, Summa Contra Gentiles, iii. 112 in: R.D. Ryder, Animal Revolution: Changing Attitudes towards Speciesism, Oxford: Berg Publishers 2000, p. 29; J. van Hallbeek, Quia Natura Nichil Privatum; Aspecten van de eigendomsvraag in het werk van Thomas van Aquino (1225- 1274), Nijmegen: Gerard Noodt Instituut 1986, p. 37. 83 Qur'an 35:39; Surrah Ar-Rahman 55:8–10; Qur’an 23:51; Qur'an 6:38; Qur'an 24:41; Hadith No. 1605, p. 271; P. Adamson, ‘Human and Animal Nature in the Philosophy of the Islamic World’, in: P. Adamson & G.F. Edwards (eds.), Animals: A History, Oxford: Oxford University Press 2018, p. 91-114; S.A. Rahman, ‘Religion and Animal Welfare—An Islamic Perspective’, Animals : An Open Access Journal from MDPI (7) 2017-2, p. 2-3; B.A. Masri, Animal Welfare in Islam, Markfield: Islamic Foundation 2009, p. 4-9, 26, 30-33, 39-44; R.C. Foltz, F.M. Denny & A. Baharuddin (ed.), Islam and Ecology – A Bestowed Trust, Harvard: Harvard University Press 2003, p. 148, 167, 194. 84 Proverbs, 12:10; Psalms 154:9; Numbers 25:4; Deuteronomy 22:10; Y. Shemesh, ‘Animal Welfare: a Jewish Perspective’, Anonymous for Animal Rights, www.anonymous.org.il (search on: Animal welfare). 85 In particular if that cruelty was based on “heathen” practices, such as the use of animals in Roman arenas and animal sacrifices, see: R.P. McLaughlin, Christian Theology and the Status of Animals – The Dominant Tradition and Its Alternatives, New York: Palgrave Macmillan Animal Ethics Series (1) 2014, p. 8-9. 86 R. Preece, Animals and nature: cultural myths, cultural realities, Vancouver: University of British Columbia Press 1999, p. 67-68; H. Grotius, On the Law of War and Peace (trans. A.C. Campbell), Kitchener: Batoche Books 2001, p. 12, 76-77; R. Descartes, Descartes’ Philosophical Letters (A. Kenny, trans.), Oxford: Clarendon Press 1970, p. 244; G.L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation, New York: Colombia University Press 2008, p. 28-29; P. Harrison, ‘Descartes on animals’, The Philosophical Quarterly 1950- (42) 1992-167, p. 219-227; J. Rawls, A Theory of Justice (Revisited edition 2005), Cambridge (USA): Harvard University Press 1971, p. 448. 87 Rousseau advocated that natural law applied to animals’, St. Francis of Assisi proposed the revolutionary idea that all creatures were equal and deposed man’s dominion over others species, and the Dutch preacher Wilhelmus Themmen advocated compassion for animals. See: J. Rousseau, Discourse on Inequality 1754 (trans. M. Cranston), London: Penguin Books Ltd. 1984, p. 22; L. White, ‘The Historical Roots of Our Ecologic Crisis’, Science (155) 1967- 3767, p. 1206-1207; R.P. McLaughlin, Christian Theology and the Status of Animals – The Dominant Tradition and Its Alternatives, New York: Palgrave Macmillan Animal Ethics Series (1) 2014; R. Preece, Animals and nature: cultural myths, cultural realities, Vancouver: University of British Columbia Press 1999, p. 67-68; W. Themmen, Nuttige zamenspraken (tweede deel), Groningen: Pieter Bandsma 1736, p. 178, 209-210, 219-220, 311. 88 Hunting grounds and certain animals were legally protected for sovereigns or the nobility, see: C.J. Bastmeijer (ed.), Wilderness Protection in Europe, Cambridge: Cambridge University Press 2017, p. 11, 411; S. Fuks & H.J. van der Windt, ‘De IJslandse Giervalk, een Koninklijke Vogel’, Jaarboek voor ecologische geschiedenis 2004, p. 144. 89 For instance, the act against animal cruelty, under Sections 92-93 Body of Liberties 1641, by the Puritans of Massachusetts was not about intrinsic need to protect animals. Instead, the act was religiously motivated and used by the Puritans to distinguish themselves from the indigenous population (who the Puritans considered to be ”savages”) and as protest against the English regime, see: J.M. Davis, The Gospel of Kindness: Animal Welfare and the Making of Modern America, Oxford: Oxford University Press 2016, p. 17; T.G. Kelch, ‘A Short History of (Mostly)

Anti-animal cruelty laws in England, for instance, were driven by extensive class excluding social reforms and not by animal welfare protection.90 2.5 Changing perspective Ontology initiated the first step to change by arguing that humanity was an integral part of nature and therefore subjected to her laws.91 However, the ethical perspective on animals started to change by the work of Bentham. Bentham's utilitarian view acknowledged the similarity between the position of animals, slaves, and women and therefore held that animals deserved the same moral equal consideration due to their capacity to suffer.92 Although Bentham’s philosophy is criticized, his perspective should be perceived within the historical context. Bentham was confronted with the suffering of animals under an anthropocentric moral framework and could only argue to impose rights on animals to protect them against cruelty.93 At that time, he could not rely on modern legal concepts.94 Yet, his view slowly devolved during the 19th and 20th century, and eventually blossomed in the progressive and prosperous Western Europe of the 1960s.95

With the emerging of modern science in the nineteenth century, humans realized that they were able to control the forces of nature and began to perceive animals with sentiment and affection. 96 This resulted in the adoption of the first anti-animal-cruelty laws.97

Western Animal Law (Part I)’, Animal Law Review (23) 2012, p. 57; K. Kete, ‘Animals and Ideology: The Politics of Animal Protection in Europe’, in: N. Rothfels (ed.), Representing Animals, Bloomington: Indiana University Press 2002, p. 20-34. 90 T.G. Kelch, ‘A Short History of (Mostly) Western Animal Law (Part I)’, Animal Law Review (23) 2012, p. 57-59; K. Kete, ‘Animals and Ideology: The Politics of Animal Protection in Europe’, in: N. Rothfels (ed.), Representing Animals, Bloomington: Indiana University Press 2002, p. 26-27; B. Salter, ‘Possess or Protect? Exploring the Legal Status of Animals in Australia’s First Colonial Courts: Part I, the “unnatural” theft and murder’, Australian Animal Protection Law Journal (2) 2009, p. 35-38; A. Kluveld, Reis door de hel der ontschuldigen: de expressieve politiek van de Nederlandse anti-vivisectionisten, 1890-1940, Amsterdam: Amsterdam University Press 2000, p. 37. 91 B. de Spinoza, Eticha Ordine Geometrico Demonstrata 1677 (trans. & ed. H.A. Krop), Amsterdam: Bert Bakker 2002, p. 57, 131, 151. 92 J. Bentham, An Introduction to the Principles of Morals and Legislation 1781, Oxford: Clarendon Press 1907, reprinted in: Dover Philosophical Classics, New York: Dover Publications 2007, p. 311; P. Singer, ‘All animals are equal’, Philosophical Exchange (1) 1974, p. 106-107; C.J. Sherry, Animal Rights: A Reference Handbook, Santa Barbara: ABC- BLIO 2009, p. 1-35; A. Peters,’Liberté, Égalité, Animalité: Human–Animal Comparisons in Law’, Transnational Environmental Law (5) 2016-1, p. 7-9. 93 E. Meijer, Political Animal Voices (diss. Amsterdam UvA), Amsterdam: UvA-DARE 2017, p. 54-55. 94 Such as, for instance: the supremacy of EU law, the precautionary principle or a duty of care, nor were there science-based animal welfare provisions. 95 The Dutch historian Van Rossem wrote that the increasing wealth of the West during the sixties led to a higher educated society that was more secular and perceived more information due to the introduction of the television. This contributed to the emancipation of individuals and marginalized groups, see: M. van Rossem, De draagbare Van Rossem, Amsterdam: Nieuw Amsterdam Uitgevers 2016, p. 185, 188, 192. 96 T. Kelch, ‘A Short History of (Mostly) Western Animal Law (Part II)’, Animal Law Review (19) 2013, p. 353-354; H. Ritvo, The Animal Estate: the English and Other Creatures in the Victorian Age, Cambridge: Harvard University Press 1987, p. 3; D. Fraser, ‘Animal Welfare and the Intensification of Animal Production’, in: P.B. Thompson (ed.), The Ethics of Intensification Agricultural Development and Cultural Change (The International Library of Environmental, Agricultural and Food Ethics Vol. 16), Cham: Springer 2008: p. 176. 97 The Ill Treatment of Horses and Cattle Bill 1822 (‘Martin’s Act’) was the first enacted anti-animal-cruelty law.

Although some of the introduced bills against animal cruelty failed98 or were ineffective,99 it nevertheless changed the perspective on animal cruelty. 100 Interestingly, Darwinism 101 did not contribute to the protection of animals in that era.102 His findings, however, paved the way for animal welfare science, which contributed to the advocacy for animal rights. 2.6 The aftermath of WWII After the Second World War (‘WWII’) Western Europe was confronted with food shortages and a growing population. Therefore, the Marshall-plan and the CAP focused on increasing productivity and industrializing animal husbandry.103

98 Bill to ban bull-baiting with dogs (1800) by MP Sir William Pulteney; Bills against bull-baiting (1802) by William Wilberforce; Bill to protect cattle and horses from malicious wounding, wanton cruelty and beating (1809) by Lord Erskine; The treatment of Horses Bill (1821) by Colonel Richard Martin. 99 Bills to ban bear-baiting, cock-fighting and dog-fighting (1835) by MP Joseph Pease; Irish Act against Plowing by the Tayle, and pulling the Wooll off living Sheep, 10 & 11 Chas. 1 c. 15 (1635), repealed by: 9 Geo. 4 c. 53 (1828). 100 The focus on cruelty should be perceived within the historical context. People back then could only observe visible pain indicators, such as expressions of animal behaviour, see: D.G.M. Wood-Gush, ‘The development of Applied Ethology in relation to certain agricultural animals over a century’, in: M.C. Appleby et al. (eds.), Applied Ethology: Past, Present and Future, Wheathampstead: Universities Federation for Animal Welfare 1991, p. 17-18; D. M. Broom, ‘A History on Animal Welfare Science’, Acta Biotheoretica (59) 2011-2, p. 121, 124-125; D. Fraser, ‘The globalisation of farm animal welfare’, Re/ Sci. Tech. (33) 2014-1, p. 34; D. Harwood, Love for animals and how it developed in Great Britain 1928, Republished in: R. Preece & D. Fraser (ed.), Dix Harwood’s Love for animals and how it developed in Great Britain (1928), Lewiston: Edwin Mellen Press 2002. 101 Darwin, held that humans descended from animal through evolution due to natural selection by adaption and reproduction, which resulted in the ‘survival of the fittest’. He also discovered the anatomical similarities between humans and animals and held that there was no fundamental difference between man and higher mammals. See: C. Darwin, On the Origin of Species, London: John Murray 1860, p. 60-61, 72, 126-127; 484-49; C. Darwin, The Decent of Man, and Selection in Relation to Sex (2 Volumes), London: John Murray (1) 1871, p. 35. 102 Paradoxicaly, Darwin’s ‘survival of the fittest’ entailed a justification for preserving the human interest. The Nazis even twisted Darwinism in order to abolish the difference between humans and animals, but placed certain human groups beneath animal races instead. See: F. Neerhoff & D. Bakker, ‘(Dieren)ethici verblind door antropocentrisme’, Civis Mundi (66) 2018; F. Neerhoff & D. Bakker, ‘Dierenethiek onder de wetenschappelijke nullijn’, Civis Mundi (69) 2018; K. Kete, ‘Animals and Ideology: The Politics of Animal Protection in Europe’, in: N. Rothfels (ed.), Representing Animals, Bloomington: Indiana University Press 2002, p. 20, 30; T.G. Kelch, ‘A Short History of (Mostly) Western Animal Law (Part II)’, Animal Law Review (19) 2013, p. 363-365; R. Preece, ‘Darwinism, Christianity, and the great vivisection debate’, J. Hist. Ideas (64) 2003, p. 399–420; R. Preece, Animals and nature: cultural myths, cultural realities, Vancouver: University of British Columbia Press 1999; H. Ritvo, The Animal Estate: the English and Other Creatures in the Victorian Age, Cambridge: Harvard University Press 1987, p. 41. 103 E. Wielinga, Netwerken als levend weefsel: Een Studie naar kennis, leiderschap en de rol van de overheid in de Nederlandse landbouw sinds 1945 (diss. Wageningen), Wageningen: Wageningen Universiteit 2001, p. 45-46, 52, 246; S. van den Bergh, Verdeeld land: de geschiedenis van de ruilverkaveling in Nederland vanuit een lokaal perspectief, 1890-1985 (diss. Wageningen), Wageningen: Wageningen Universiteit 2004, p. 30-31; W.J. Warren, Meat Makes People Powerful: A Global History of the Modern Era, Iowa City: University of Iowa Press 2018, p. 103- 129; R. Schütze, European Union Law, Cambridge: Cambridge University Press 2018, p. 579; B.J. Carroll, Adaptation, Discretion, and the Application of EU Animal Welfare Legislation (Diss. Leiden), The Hague: The Institute of Public Administration, Leiden University 2014, p. 65-68; T. De Groot & R. Lapperre, ‘Acht hervormingen van het EU- landbouwbeleid: de besluitvorming onder de loep’, in: H. Massink & H. Silvis (eds.), Rond de scheidslijn tussen landbouweconomie en landbouwpolitiek, Wageningen: Wageningen Academic Publishers 2009, p. 136.

This resulted in economic growth, which increased the supply and consumption of meat.104 This process was stimulated by technological innovations, such as better infrastructure, antibiotics, and food preservation products.105 An ‘animal rights position’ under these circumstances was politically untenable. Animal welfare law, however, provided a more pragmatic approach as it intertwined animal welfare protection with economic growth and productivity. 106 So, even though animal protection movements flourished after WWII, they no longer focussed on obtaining ‘animal rights’.107

During the sixties, the media, celebrities, and academics visibly advanced in favor of animal welfare.108 The work of Ruth Harrison was thereby influential. Her work described the detrimental effects on animal welfare caused by the post-war industrialization and mass consumption, which led to the formation of the Brambell-committee.109

104 H. Ritchie & M. Roser, ‘Meat and Seafood Production and Consumption’, OurWorldInData.org (Online publication, data retrieved in: 2019); F. Veraart, ‘Agriculture and Foods: Overproduction and Overconsumption’, in: H. Lintsen et al. (eds.), Well-Being, Sustainability and Social Development: The Netherlands 1850-2050, Cham: Springer 2018, p. 400; W.J. Warren, Meat Makes People Powerful: A Global History of the Modern Era, Iowa City: University of Iowa Press 2018, p. 103-129. 105 D. Fraser, ‘Animal Welfare and the Intensification of Animal Production’, in: P.B. Thompson (ed.), The Ethics of Intensification Agricultural Development and Cultural Change (The International Library of Environmental, Agricultural and Food Ethics Vol. 16), Cham: Springer 2008: p. 181-182, 184. 106 Singer, for instance, accepted animal exploitation on the basis of utilitarianism, see: P. Singer, Animal Liberation: A New Ethics for Our Treatment of Animal, New York: Avon Books 1975: reprinted in: P. Singer, Animal Liberation, London: Vintage Publishing 2015; P. Singer, ‘All animals are equal’, Philosophical Exchange (1) 1974, p. 106-107; E. Eskens, ‘A Beastly History of Philosophy’, www.ernoeskens.nl (search on: Beastly History), in: E. Eskens, Beestachtige geschiedenis van de filosofie, Leusden: Isvw Uitgevers 2016; B. Unti & A.N. Rowan, ‘A social history of post-war animal protection’, in: D.J. Salem & A.N. Rowan (eds.), The state of the animals, Washington D.C.: Humane Society Press 2001, p. 21; R.J. Simmonds, Interim Report drawn up on behalf of the Committee on Agriculture, Fisheries and Food on animal welfare policy, Doc. A-262/85, 1985-86, p. 10-11. 107 Most feminists and civil rights activists focused on social justice or advocated ‘animal rights’ only in the context of anti-vivisection. It should be observed that animal welfare issues could get racialized, which would stigmatize and marginalize of minorities even more, see: S. Donaldson & W. Kymlicka, ‘Animal Rights, Multiculturalism and the Left’, Journal of Social Philosophy (45) 2014, p. 120-121; M. Deckha, ‘Animal Advocacy, Feminism and Intersectionality’, DEP (3) 2013, p. 55-56, 59-61; see furthermore: B. Unti & A.N. Rowan, ‘A social history of postwar animal protection’, in: D.J. Salem & A.N. Rowan (eds.), The state of the animals, Washington D.C.: Humane Society Press 2001, p. 25; J.M. Davis, The Gospel of Kindness: Animal Welfare and the Making of Modern America, Oxford: Oxford University Press 2016, p.5; L. Sideris et al., ‘Roots of Concern with Nonhuman Animals in Biomedical Ethics’, ILAR Journal (40) 1999-1, p. 6-7; W. Johnson, ‘On agency’, Journal of Social History (37) 2003, p. 113–124; J. Sanbonmatsu (ed.), Critical Theory and Animal Liberation, Plymouth: Rowman & Littlefield Publishers 2011, p. 13-14; C. Boggs, ‘Corporate Power, Ecological Crisis and Animal Rights’, in: J. Sanbonmatsu (ed.), Critical Theory and Animal Liberation, Plymouth: Rowman & Littlefield Publishers 2011, p. 73-74. 108 B.E. Rollin, ‘Animal Rights as a Mainstream Phenomenon’, Animal : An Open Access Journal from MDPI (1) 2011- 1, p. 108; D. M. Broom, ‘A History on Animal Welfare Science’, Acta Biotheoretica (59) 2011-2, p. 121-137; A.B. Lawrence, ‘Applied animal behaviour science: Past, present and future prospects’, Applied Animal Behaviour Science (115) 2008, p. 3-6. 109 Industrialization not only sparked the debate on whether this process enhanced the human quality of life, but also on how the intensive farming industry affected animal welfare, see: R. Harrison, Animal Machines, London: Vincent Stuart Publishers 1964; D. Frasers, ‘Ruth Harrison – A Tribute’, in: M. Stamp-Dawkings, Animal Machines, CABI 2013, p. 17-18; H. van de Weerd, ‘Bringing the issue of animal welfare to the public: A biography of Ruth Harrison (1920–2000)’, Applied Animal Behaviour Science, (113) 2008-4, p. 403; D. Fraser, ‘Understanding animal welfare’, Acta Veterinaria Scandinavica (50) 2008.

The Brambell-committee laid down the foundations of animal welfare in the form of ‘freedoms’.110 These ‘freedoms’ were redefined by the Farm Animal Welfare Council (‘FAWC’) as the ‘five freedoms’ for animal welfare. 111 2.7 EU animal welfare law The EU started to regulate the pig, beef, and veal meat market in the sixties.112 At that time, animal health requirements only focused on preventing contagious diseases. 113 As a response to the Brambell- Committee, the Council of Europe (‘COE’) adopted in 1968 the European Convention for the Protection of Animals During Transport (‘ECPADT’) and the European Convention for the Protection of Animals kept for Farming (‘ECPAF’ or ‘Convention’) in 1976.114 When Member States ratified these COE-conventions, it was feared that national animal welfare policies would cause disparities between national laws, distort competition, or obstruct the common market.115 Therefore, the EU ascended to the ECPAF and began to harmonize the transport and slaughter of animals.116

110 Brambell advocated that: “An animal should at least have sufficient freedom to stand up, lie down, turn around, groom themselves and stretch their limb,” see: F.W.R. Brambell, Report of the Technical Committee to Enquire into the Welfare of Animals kept under Intensive Livestock Husbandry Systems (Command Paper 2836), London: Her Majesty’s Stationery Office 1965, p. 13. 111 This includes: the Freedom from hunger and thirst; the Freedom from discomfort; the Freedom from pain, injury and disease; the Freedom to express normal behaviour; and the Freedom from fear and distress, see: Report on Priorities for Animal Welfare Research and Development, Tolworth Tower: FAWC 1993, p. 3-4 in conjunction with Articles 3-7 European Convention for the Protection of Animals kept for Farming; D.J. Wolfson & M. Sullivan, ‘Foxes in the Henhouse: Animals, Agribusiness and the Law: A Modern American Fable’, in: C.R. Sunstein & M.C. Nussbaum (ed.), Animal Rights: Current Debates and New Directions, New York: University Press 2004, p. 221; D. Cao & S. White (ed.), Animal Law and Welfare – International Perspectives, Cham (Switzerland): Springer 2016, p. 51-52. 112 Council Reg. 20/62/EEC on establishing a common in market in pig meat; Reg. 14/64/EEC on common organisation of the market in beef and veal; Council Reg. 805/68/EEC on the common organisation of the market in beef and veal. 113 Rec. 5-6, 8 Dir. 64/432/EEC; Articles 1, 3 (2)-(7), 5, 9, Dir. 64/432/EEC in conjunction with Annex A Council Dir. 64/432/EEC on animal health problems affecting intra-Community trade in bovine animals and swine; rec. 14 & Article 23 Council Reg. 805/68/EEC. 114 P. Dalla et al., ‘Drivers for animal welfare policies in Europe’, in: D.J. Mellor & D. Bayvel, ‘Animal Welfare: focusing on the future’, OIE Scientific and Technical Review (33) 2014-1, p. 40; Ethical Eye – Animal welfare, Council of Europe, Council of Europe Publishing 2006, 58-59. 115 Rec. 14 Reg. 805/68/EEC; rec 3-5 Dir. 64/432/EEC; Preamble Council Decision 78/923/EEC; moreover, Article 36 Treaty of Rome 1957 allowed derogations on the basis of animal health; see furthermore: Debates of the European Parliament, 1977–1978 Session (Report of Proceedings from 8 to 11 March 1977); D.M. Broom, ‘A History on Animal Welfare Science’, Acta Biotheoretica (59) 2011-2, p. 121, 124-125; D. Fraser, ‘The globalisation of farm animal welfare’, Re/ Sci. Tech. (33) 2014-1, p. 34. 116 Article 1 Council Decision 78/923/EEC; the legal personality of EU in relationship with the principle of conferral, allowed the entering of an international agreements and fur fill their obligations, see: Art. 47 TEU, Article 5 TEU in conjunction with Article 216 TFEU; CJEU 31 March 1970, C-22/70, ECLI:EU:C:1971:32 (ERTA), para. 13; Council Dir. 74/577/EEC on the stunning of animals before slaughter; Council Dir. 77/489/EEC on the protection of animals during international transport; European Commission, Animal welfare in the EU: celebrating the past, preparing for the future, Animal Welfare News June 2005; J. Vapnek & M. Chapman, Legislative and regulatory options for animal welfare, Rome: FAO Legislative Study (104) 2010, p. 20-21; T. Camm & D. Bowles, ‘Animal Welfare and the Treaty of Rome – a Legal Analysis of the Protocol on Animal Welfare and Welfare Standards in the European Union’, Journal of Environmental Law (2) 12/2000, p. 198.

Without a conferred competence, animal welfare measures were primarily based on the CAP and internal market, under reference to the EU’s ascension to the COE-conventions.117 The internal market objective was invoked to abolish disparities between national laws in order to improve and protect the functioning of the internal market.118 It also provided the EU a teleological competence to enact regulatory measures outside its conferred competence.119 In addition, the CAP was invoked to prevent disparities between national laws and distortion of competition due to the integral applicability of the ECPAF on the CAP.120 However, in UK/Council the CJEU ruled that only the CAP provided the correct legal basis for farm animal welfare measures.121

Furthermore, the European Parliament (‘EP’) called upon the Commission to establish a common animal welfare policy. 122 In response to the EP Resolution 20 February 1987, the Commission proposed new animal welfare instruments.123

117 Council Dir. 74/577/EC and Council Dir. 77/489 in conjunction with Article 100 EC and Article 43 EC; CJEU 23 May 1996, C-5/94, ECLI:EU:C:1996:205 (Hedley Lomas), para. 4; moreover, preamble Council Dir. 98/58/EC refers both to ECPAF and Declaration 24 on the Welfare of Animals. 118 This objective, however, should not be confused with a general competence to regulate the internal market, see: CJEU 5 October 2000, C-376/98, ECLI:EU:C:2000:544 (Germany/Parliament & Council (tobacco advertising I), para. 83; T. Perišin, ‘Is the Eu Seal Products Regulation a Sealed Deal? EU and WTO Challenges’, International & Comparative Law Quarterly (62) 2013, p. 381-382. 119 R. Schütze, European Union Law, Oxford: Oxford University Press 2018, p. 233, 558-660; European Commission, Completing the Internal Market: White Paper from the Commission to the European Council (COM1985/310/final), para. 68; see by analogy: the energy sector, K. Talus, ‘The Vertical Division of Competences between the European Union and Its Member States in the Energy Sector’, in: Introduction to EU Energy Law, Oxford: Oxford University Press 2016, p. 11-12; public health in relationship with the regulation of the tobacco-industry, CJEU 5 October 2000, C-376/98, ECLI:EU:C:2000:544 (Germany/Parliament & Council (tobacco advertising I), paras, 68, 76, 78, 88; CJEU 9 October 2001, C-377/98, ECLI:EU:C:2001:523 (Netherlands/Parliament & Council), paras. 30-33; CJEU 10 December 2002, C-491/01, ECLI:EU:C:2002:741 (British American Tobacco/UK), paras. 179-183; CJEU 14 December 2004, C- 210/03, ECLI:EU:C:2004:802 (Swedish Match), para. 31; CJEU 12 December 2006, C-380/03, ECLI:EU:C:2006:772 (Germany/ Parliament (tobacco advertising II), paras. 39-40, 95-96; CJEU 4 May 2016, C-547/14, ECLI:EU:C:2016:325 (PMI, BTA/UK), paras. 215, 218, 219-222, 115-116 in conjunction with 223-224. 120 In UK/Council, the CJEU referred to the elimination of “unequal conditions of competition in that field.”. In that regard, the view of the Council and the Commission also on farming and competition distortion should also be observed, see: CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 10, 17, 26-27; moreover, see: Council Dir. 77/489/EEC; Preamble Council Directive 74/577/EEC in conjunction with Article 100 EC and Article 43 EC; K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (55) 2018-1, p. 64-65. 121 CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 26-27; rec. 5 Dir. 1999/74. 122 In first instance, MEP Spinelli proposed to integrate animal protection with the objective of environmental protection within the EU Treaty: Article 59 Draft Treaty Establishing The European Union, Resolution of the European Parliament 14 February 1984 on the draft Treaty establishing the European Union (OJ, C 77/33); followed by: ‘Motion for a Resolution by Woltjer’, Doc. 2-8007/84, paras. 1, 13, 14, in: R.J. Simmonds, Interim Report drawn up on behalf of the Committee on Agriculture, Fisheries and Food on animal welfare policy, Doc. A-262/85, 1985-86, p. 25-27; R.J. Simmonds, Interim Report drawn up on behalf of the Committee on Agriculture, Fisheries and Food on animal welfare policy, Doc. A-262/85, 1985-86, p. 21-24; Resolution of the European Parliament on animal welfare policy 12 July 1985, paras. 10-12 (OJ C 229/147). 123 Resolution of the European Parliament on animal welfare policy 20 February 1987 (OJ C 76/185), in conjunction with Commission proposals: concerning minimum standards for the protection of calves kept in intensive farming systems (COM(89)114 final), the protection of pigs in intensive farming systems (COM(89)115 final) and animals during transport (COM(89)322 final).

In 2006, the Commission provided a new essential step to increase farm animal welfare by launching its Action Plan on Animal Welfare. 124 Subsequently, the Commission launched the EU Strategy for the Protection and Welfare of Animals 2012-2015, which mainly emphasized the development of science- based animal welfare indicators.125 It also established the coordination of research.126

With the annexing of the non-binding Declaration 24 on the Welfare of Animals (‘the Declaration’) to the Maastricht Treaty, animal welfare became semi incorporated within EU primary law.127 When the Treaty of Amsterdam came into effect, the annexed Protocol on Protection and Welfare of Animals 1997 acknowledged animals as sentient beings.128 However, these provisions were non-binding and did not provide a real constitutional basis.129 Eventually, the Lisbon Treaty provided this constitutional basis by incorporating animal welfare and the status of animals as sentient beings within EU primary law.130 In contrast to the Declaration and the Protocol, Article 13 TFEU is legally binding.131

124 This plan updated minimum standards, introduced animal-based welfare indicators, aimed to ensure a greater awareness among animal keepers and consumers, prioritized policy-orientated research and aimed to promote international animal welfare initiatives. Moreover, the Commission held that: “animal welfare policies need to be founded on the best available scientific evidence as well as taking into account the concerns of civil society, socio- economic consequences (…)” and that: “animal welfare is evolving in terms of ethical concerns and this has become a “cultural attitude” for European society”, see: Community Action Plan on the Protection and Welfare of Animals 2006-2010 (COM(2006)13 Final), p. 3-4; Commission staff working document on a Community Action Plan on the Protection and Welfare of Animals 2006-2010, SEC(2006)65, para. 2. 125 Other objectives aimed at: creating common requirements for competence of personnel handling animals and establishing a EU framework to increase transparency and adequacy of information to consumers on animal welfare for their purchase choice, see: The European Union Strategy for the Protection and Welfare of Animals 2012-2015 (COM(2012)6 final), p. 6-8 126 The Panel on Animal Health and Welfare (‘AHAW’) of the European Food Safety Authority (‘EFSA’) is mandated to provide scientific opinions on animal health and welfare issues. The EFSA also includes a network of national authorities. Most animal welfare indicators or assessment methods are based on the findings of the Welfare Quality Project (an EU funded project comprising of 40 European and four Latin American institutions concerning the promotion of international animal welfare standards) and its successor the Welfare Quality Network. Moreover, the Commission can establish Animal Welfare Reference Centres to provide scientific and technical knowledge to the competent authorities on implementing and complying to current EU legislation, see: EU Reference Centre for Animal Welfare, see: Articles 95 & 96 Reg. 2017/65 in conjunction with: www.eurcaw.eu; see also: Terms of Reference of the EFSA Scientific Network on Animal and welfare, ESFA-Q-2017-00591; H. Blokhuis et al., ‘Assessing and improving farm animal welfare the way forward’, in: H. Blokhuis et al. (eds.), Improving farm animal welfare: Science and society working together: the Welfare Quality approach, Wageningen: Wageningen Academic Publishers 2013, p. 220-221; P. Presi & M. Reist, ‘Methodologies for the validation of animal based indicators of welfare’, EFSA Supporting Publications (8) 2011, p. 8; H.J. Blokhuis, I Veissier, M. Miele & B. Jones, ‘The Welfare Quality® project and beyond: Safeguarding farm animal well-being’, Acta Agriculturae Scandinavica, Section A — Animal Science (60) 2010-3. 127 It stipulated “pay full regard to the welfare of animals” when drafting and implementing legislation, see: Declaration 24 Maastricht Treaty 1992 (PbEG 1992 C 191/103). 128 Protocol 33 on the protection and welfare of animals 1997 – Amsterdam Treaty. 129 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands), paras. 73-74, 79. 130 Article 13 TFEU. 131 Y. Nakanishi (eds.), Contemporary Issues in Environmental Law. Environmental Protection in the European Union, Tokyo: Springer (5) 2016, p. 93.

Thus, based on the aforementioned, the EU developed over the years a unique and unprecedented animal welfare framework. 132 Nevertheless, EU law justifies animal exploitation out of necessity and self- preservation, as long as it does not constitute unnecessary harm.133 EU farm animal welfare law, therefore, entails, in line with developments after WWII, both deontological and utilitarian approaches.134

Figure 1.2 – European Court of Auditors, Animal Welfare in the EU, January 2018, p. 5.

132 See figures 1.2 – 1.3 for a global overview of EU animal welfare law. 133 At first sight, this can be discriminatory. Most humans favour “cuddly animals” or big farm animals over mosquitoes. However, given scientific ecologic insights and the lack of competing interest in case mosquitoes do not transfer deadly diseases, nobody would vouch for a measure on macro-level to exterminate all mosquitoes By analogy, even though bees can be killed when they threaten humans, EU law prohibits pesticides that cause bee- mortality due to its objective to protect the environment and animal health, see: GCJEU 17 May 2018, T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta / Commission), para. 105; rec. 8 Reg. 1107/2009. 134 U.J. Frey & F. Pirscher, Willingness to pay and moral stance: The case of farm animal welfare in Germany, PLoS ONE (13) 2018; E. Szűcs et al., ‘Animal Welfare in Different Human Cultures, Traditions and Religious Faiths’, Asian- Australasian Journal of Animal Sciences (25) 2012-11, p. 1504-1505; F. Lundmark et al., ‘Intentions and Values in Animal Welfare Legislation and Standards’, Journal of Agricultural and Environmental Ethics (27) 2014, p. 994.

Figure 1.3 – ‘40 years of animal welfare’, EC.Europa.EU

2.8 Rethinking the human-animal relationship So, what can trigger the enhancement of animal welfare if human morality and rights only apply between humans? Conceivably, the answer lies within humanity’s abilities. Human morality and rationality are, based on the ability of humans to reflect upon their actions and to rearrange reality by creating intersubjective entities. 135 These abilities enable humans to impose a moral obligation upon themselves.136

In essence, citizenships-theories, as proposed by scholars like Meijer and Kymlicka, appeal to our ability to impose a behavioural obligation towards animals given our knowledge about their needs. 137 According to animal welfare science, a wide range of animals possess substantial cognitive abilities.138

135 This does not mean that animals lack certain capacities that are fundamental within morality (such as cognition and a sense of justice), but only humanity is able to reflect upon his actions and to create intersubjective entities that affect their environment, see: Y.N. Harari, Homo Deus: A Brief History of Tomorrow, London: Harvill Secker 2016, p. 149-151; F.B.M. de Waal, The Bonobo and the Atheist: In Search of Humanism Among the Primates, New York: W.W. Norton & Company 2013, p. 17-18. 136 The preamble of the European Convention for the Protection of Animals during International Transport (Revised) 2003, for instance, stipulates specificity: “ (…) every person has a moral obligation to respect all animals and to have due consideration for their capacity for suffering”; see also: J. Rawls, A Theory of Justice (Revisited edition 2005), Cambridge (USA): Harvard University Press 1971, p. 512; F.B.M. de Waal, Good Natured: The Origins of Right and Wrong in Humans and Other Animals, Cambridge: Harvard University Press 1996, p. 34-39, 216. 137 Meijers, for instance, argues that animals have their own language and social structure and humans therefore should re-evaluate their own communication with them. Others argue that the lack of the same human langue disqualifies animals from the same level of rationality, which therefore excludes them from possessing rights or the same moral equal consideration. However, exclusion from possessing rights, does not mean exclusion from protection. Therefore, although the language of humans differs from the language of animals, humans have gained more scientific insights on the communication of animals and their social structures. This understanding appeals to altruistic human ability and the ability to create intersubjective entities. De Waal therefore advocates that humanity’s ability of altruistic tendencies obliges them to care for animals. See: F. de Waal, ‘We the People (and Other Animals)’, The New York Times (Op-Ed) 20 August 1999; E. Meijer, Political Animal Voices (diss. Amsterdam UvA), Amsterdam: UvA-DARE 2017, p. 15-16, 247-248, 250-252; S. Donaldson & W. Kymlicka, Zoopolis: A Political Theory of Animal Rights, Oxford: Oxford University Press 2011, p. 51, 250; G. Duckler, ‘Two Major Flaws of The Animal Rights Movement’, Animal Law Journal (14) 2008-2, p. 187-188, 192-193; N.H. Lee, ‘In Defense for Humanity: Why Animals Cannot Posses Human Rights’, Regent University Law Review (26) 2014-1, p. 470-472, 474. 138 F.B.M. de Waal, Are We Smart Enough to Know How Smart Animals Are?, New York: Norton 2017; S.J. Shettleworth, Cognition Evolution and Behavior, Oxford: Oxford University Press 2010; L. Marino & C.M. Colvin, ‘Thinking Pigs: A Comparative Review of Cognition, Emotion, and Personality in Sus domesticus’, International Journal of Comparative Psychology (28) 2015; D.M. Broom & K.G. Johnson, Stress and Animal Welfare, Dordrecht: Kluwer 1993; B. Heinrich, Mind of the Raven: Investigations and Adventures with Wolf-Birds, Ecco 2000; J.C. Flack & F.B.M. de Waal, ‘Any animal whatever. Darwinian building blocks of morality in monkeys and apes’, Journal of Consciousness Studies (7) 2000; F.B.M. de Waal, Good Natured: The Origins of Right and Wrong in Humans and Other Animals, Harvard: Harvard University Press 1997; P. Le Neindre et al. (ed.), Animal Pain: identifying, understanding and minimizing pain in farm animals, Multidisciplinary scientific assessment, INRA 2009, p. 53, 71, 86-90; L. Conradt, & T.J. Roper, ‘Democracy in animals: the evolution of shared group decisions’, Proceedings of the Royal Society B: Biological Sciences (274) 2007-1623, p. 2317-2326; P. Brakes (et al), ‘Animal cultures matter for conservation’, Science (363) 2019; H. Whitehead (et al.), ‘Culture and conservation of non-humans with reference to whales and dolphins: review and new directions’, Biological Conservation (120) 2004; for fish welfare see: A. Braithwaite, ‘Assessing fish welfare’, CAB Reviews: Perspectives in Agriculture, Veterinary Science, Nutrition and Natural Resource

Due to the public awareness of this knowledge, the human perspective on animals changed. 139 For instance, the public concerns about animal welfare and scientific insights led to the recognition of animal welfare as a value within EU law.140 Animal welfare science also instigated EU animal welfare provisions and led to the implementation of scientific-based standards and assessments within EU animal welfare law.141

Inversely, law also contributes to social and moral acceptance within society.142 Of course, social changes through law come with a price and have their limits in the long term.143 Nevertheless, the recognition of animals as sentient beings can inspire lawyers, policymakers, and interest groups to protect animal welfare.144

(12) 2017 (Article 023); J. Keagy, A. Braithwaite & J.W. Boughman, ‘Brain differences in ecologically differentiated sticklebacks’, Current Zoology (64) 2018-2; A. Braithwaite, Do fish feel pain?, Oxford: Oxford University Press 2010. 139 B.E. Rollin, ‘Animal Rights as a Mainstream Phenomenon’, Animals : An Open Access Journal from MDPI (1) 2011- 1, p. 108; D. M. Broom, ‘A History on Animal Welfare Science’, Acta Biotheoretica (59) 2011-2, p. 121-137; A.B. Lawrence, ‘Applied animal behaviour science: Past, present and future prospects’, Applied Animal Behaviour Science (115) 2008, p. 3-6; H. van de Weerd, ‘Bringing the issue of animal welfare to the public: A biography of Ruth Harrison (1920–2000)’, Applied Animal Behaviour Science, (113) 2008-4, p. 403; D.G.M. Wood-Gush, ‘The development of Applied Ethology in relation to certain agricultural animals over a century’, in: M.C.Appleby, R.I.Horrell, J.C.Petherick & S.M.Rutter (ed.), Applied Ethology: Past, Present and Future, Wheathampstead: Universities Federation for Animal Welfare 1991, p. 17-18; D. Fraser, ‘The globalisation of farm animal welfare’, Re. Sci. Tech. (33) 2014-1, p. 34; D. Harwood, Love for animals and how it developed in Great Britain 1928, republished in: R. Preece & D. Fraser (ed.), Dix Harwood’s Love for animals and how it developed in Great Britain (1928), Lewiston: Edwin Mellen Press 2002. 140 A-G Bobek held that animal welfare is a “significant value”, see: Conclusion A-G Bobek 17 March 2016, C0592/14, ECLI:EU:C:2016:179 (EFfCI/United Kingdom), paras. 20-21; see also: “Community Value” – rec. 4 Council Reg. 1099/2009; “value enshrined within the Article 13 TFEU” – rec. 2 Dir. 2010/63/EU. 141 For instance, rec. 6 Dir. 2010/63/EU provides that knowledge on animal welfare requires the protection of their welfare and that the level of protection should be in line with scientific insights; see also: rec. 2, 8-12 Council Dir. 2008/120/EG; rec. 6 Reg. 1099/2009; Article 18 (1) (b) Reg. 1223/2009 in conjunction with para. 8 Annex I Reg. 1223/2009; rec. 38-42, 50 Reg. 1223/2009; CJEU 21 September 2016, C-592/14, ECLI:EU:C:2016:703 (European Federation for Cosmetic Ingredient/UK), para. 34-36; European Parliament, resolution 14 March 2017 on minimum standards for the protection of farm rabbits 2016/2077(INI); analogically, the opinions of EFSA played led to the banning seal products. See: D. Cao & S. White (ed.), Animal Law and Welfare – International Perspectives, Cham (Switzerland): Springer 2016, p. 52; rec. 1, rec., 4 & Article 3 Reg. 1007/2009 on the trade in seal products; ‘Animal Welfare aspects of killing and skinning of seals’ – Scientific Opinion of the Panel on Animal Health and Welfare, EFSA Journal 19 December 2007, in conjunction with rec. 11 Reg. 1007/2009 and Commission Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products (COM/2008/469 final), explanatory memorandum Ch. 1. 142 Think about, for instance, the acceptance of homosexuality in England or the ending of racial segregation in the US, see: S. Brooman & D. Legge, Law Relating to Animals, London: Cavendish Publishing 1997, p. 27-28; D. Rendleman, ‘Rehabilitating the Nuisance Injunction to Protect the Envi ronment ‘, Washington and Lee Law Review (6) 2018 / Forthcoming: Washington & Lee Legal Studies Paper (75) 2018-4, p. 50; K.M. Welch, Black Litigants in the Antebellum American South, Chapel Hill: University of North Carolina Press 2018. 143 For example, the impact of Brown v. Board of Education also contributed to the re-segregation, see: M.J. Klarman, ‘Brown v. Board of Education: facts and political correctness’, Virginia Law Review (80) 1994, p. 185-199; S.F. Reardon et al.’ Brown Fades: The End of Court‐Ordered School Desegregation and the Resegregation of American Public Schools’, Journal of Policy Analysis and Management (31) 2012-4, p. 876-901; S. Ramsey, ‘The Troubled History of American Education after the Brown Decision’, Process: a blog for American history 9 February 2017. 144 For instance, the Dutch initiative ‘Chicken of Tomorrow’ was initiated by undertakings, see: J.M. Bos, H. van den Belt & P.H. Feindt, ‘Animal welfare, consumer welfare, and competition law: The Dutch debate on the Chicken of

Thus, law should focus on regulating the behaviour of individuals towards animals from an animal-based perspective. Animal welfare science could thereby establish critical boundaries, though, law has to provide an ethical benchmark from which animal welfare science and policies can be conducted. 145 2.9 Conclusion This paragraph provides the conclusion of this chapter by answering the following question:

What is the legal historical and philosophical development of EU animal welfare law?

The development of animal welfare law entails a change from a teleological anthropocentric view on animals towards a utilitarian and deontological animal welfare framework. Animals were elevated from sole property to sentient beings, though, EU law allowed animal exploitation in respect to animal welfare requirements.

Initially, animals were perceived as property out of secular utilitarian motives. With the introduction of animal husbandry and property rights, animals were economized and incorporated as property within ancient legal systems. Additionally, Stoic philosophy and Christian theology constituted a teleological anthropocentric perspective towards animals, which inspired future philosophers and lawyers. Within teleological anthropocentrism, animals were held to be subordinate to men. Due to the lack of rational speech, animals were also regarded to be irrational and therefore lacked equal moral rights. Eventually, the work of Bentham and emerging scientific insights changed the ethical perspective on animals, which inspired animal rights activism.

In contrast to teleological anthropocentrism, the period post-WWII provided a pragmatic compromise to allow intensive industrialized animal husbandry and deter unnecessary harm. It started when the COE adopted the Convention to protect the welfare of farm animals. Consequently, the EU ascended to the Convention and adopted farm animal welfare provisions. However, these provisions focused initially on protecting the functioning of the internal market and dissolving disparities between national laws. They were legitimized by the internal market ground and the CAP due to the Convention’s obligation. With the introduction of secondary legal instruments and Article 13 TFEU, EU animal welfare law has evolved into an institutional obligation to protect animal welfare.

Currently, the human-animal relationship within the EU is defined by utilitarianism and a deontological approach that recognizes animals as sentient beings and obliges to protect their welfare. Although animals are economized and used for exploitation, the EU farm animal welfare law prevents and mitigates unnecessary harm. Nevertheless, history indicates that progressing scientific insights, human altruism, and their ability to create intersubjective entities contributed to the protection of animal welfare.

Tomorrow’, Animal Frontiers (8) 2018-1; see also, OABA/France in which an organization argued before the French court that ‘EU biological logo’, within the meaning of Article 25 of Reg. 834/2007 & Article 57 Reg. 889/2008, violated Articles 3 & 5 Reg. 834/2007, see: CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), para. 22. 145 Of course, factors such as, the technological and economic abilities, law and politics influence this process. See: D. Cao & S. White (ed.), Animal Law and Welfare – International Perspectives, Cham (Switzerland): Springer 2016, p. 13; K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018/55; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017/3; P. Sobbrio, ‘The Relationship between Humans and Other Animals in European Animal Welfare Legislation’, Relations Beyond Anthropocentrism 2013, www.ledonline.it (search for: Relations).

3 ARTICLE 13 TFEU

3.1 Introduction Article 13 TFEU is the main provision within EU primary law on animal welfare, which stipulates:

“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 EU countries relating in particular to religious rites, cultural traditions and regional heritage.”

This chapter analyses Article 13 TFEU more in-depth and discusses its relationship towards the protection of animal welfare. Paragraph 3.2 analyses the scope of Article 13 TFEU, while paragraph 3.3 analyses the development of Article 13 TFEU within case-law. Subsequently, paragraph 3.4 discusses the expansion of the role of EU institutions through Article 13 TFEU. Finally, paragraph 3.5 provides the conclusion of this chapter. 3.2 The scope of Article 13 TFEU The most important feature of Article 13 TFEU is the recognition of animals as sentient beings, which abolishes the property-based notion of animals. It only addresses the EU and Member States to pay “full regard to animal welfare”, the scope of animal welfare protection remains at the discretion of the EU and Member States. Hence, Article 13 TFEU does not entail a prohibition of animal welfare violations or an active duty to protect animal welfare. 146 Neither does it establish a fundamental animal right or, in contrast to Article 36 TFEU, entail a justified derogation from the free movement of goods. Also, Article 13 TFEU as such does not provide a legal basis for individuals to demand higher animal welfare standards or justifies domestic provisions. Moreover, Article 13 TFEU only applies to the “formulation” or “implementation” of EU-policies within the designated areas. It, therefore, excludes domestic policies that do not implement EU law. 147

Within the TFEU, Article 13 TFEU is categorized as a provision of general application under Title II of the Treaties. Therefore, animal welfare has the same weight as the functioning of the internal market.148

146 Article 18 TFEU, for instance, provides: “(…) any discrimination on grounds of nationality shall be prohibited (…).”. 147 Hence, Dutch citizens cannot, for instance, order the Dutch state to oblige factory farms to install adequate sprinkler systems on the sole basis of Article 13 TFEU. 148 Conclusion A-G Wahl 30 November 2017, C-426/16, ECLI:EU:C:2017:926 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), para. 110; CJEU 25 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), para. 35; M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 83; D. Ryland & A. Nurse, ‘Mainstreaming after Lisbon: Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review (11) 2013, p. 101, 109- 110.

However, the restricted scope of Article 13 TFEU precludes the application of animal welfare as a general principle of EU law.149 Nevertheless, Article 13 TFEU provides a regulatory legitimization to enact animal welfare measures within the designated areas.150

Thus, Article 13 TFEU provides three main functions; it recognizes animals as sentient beings, it constitutes a restricted regulatory principle and establishes a constitutional obligation of the EU towards animal welfare. These topics will be discussed more in-depth in the following subparagraphs.

3.2.1 Sentient beings By recognizing animals as ‘sentient beings’ within EU primary law, the EU acknowledges that animals, in general, have the cognitive capacity to feel, perceive and experience emotional states, and a sense of awareness regarding their coping mechanism in respect to their environment.151 This recognition within EU primary law also expresses the cultural attitude of the EU towards the status of animals in general.

As a provision of general application and due to the expanding adjective clause: “ since animals are sentient beings”, all animals are acknowledged as sentient beings, regardless of the scope of Article 13 TFEU. 152 Moreover, the recognition of ‘sentience’ in conjunction with the insertion of “their welfare requirements”, implies the protection of the welfare requirements of the individual animal.153 Although Article 13 TFEU does not provide a prohibition or an active duty to protect, it does address the European legislator to observe the sentient nature of animals.154 Hence, Article 13 TFEU should be perceived as a behavioural obligation of the European legislator to protect animal welfare.

149 See also: CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands), para. 73; M. Cremona, ‘The Two (or Three) Treaty Solution: The New Treaty Structure of the EU’, in: A. Biondi, P. Eeckhout & S. Ripley (eds.), EU After Lisbon, Oxford: Oxford University Press, p. 48-49. 150 CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), para. 44; CJEU 29 May 2018, C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others), para. 64; CJEU 23 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), para. 35; CJEU 19 June 2008, C-219/07, EU:C:2008:353 (Andibel), par. 27; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 22. 151 Animal welfare in the EU entails therefore more than only health requirement, see: T. Camm & D. Bowles, ‘Animal Welfare and the Treaty of Rome – a Legal Analysis of the Protocol on Animal Welfare and Welfare Standards in the European Union’, Journal of Environmental Law (2) 2000-12, p. 205; see also: D.M. Broom, Sentience and Animal Welfare, Wallingford: CABI Publishing 2014, p. 5-6; I.J.H. Duncan, ‘The changing concept of animal sentience’, Applied Animal Behaviour Science (100) 2006, p. 13-14; D.M. Broom, ‘Considering animals’ feelings: Précis of Sentience and animal welfare (Broom 2014)’, Animal Sentience (5) 2016/1, p. 2, 9; A.F. Fraser & D.M. Broom, Domestic Animal Behaviour and Welfare, Wallingford: CABI 2015, p. 13; J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 11, 16. 152 Title II TFEU; M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 83. 153 In contrast, wildlife law focuses on the protection of species, see: J. Dubrulle& M. Lewis, ‘Defining Animal law’, Animal Law March 2016, http://animallaw.wordpress.com; whereas the reference to animal health can include animal welfare, it also entails the preservation of species or the prevention of contagious diseases, see: CJEU 3 December 1998, C-67/97, ECLI:EU:C:1998:584 (Bluhme), para. 33; CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands). 154 It acknowledges that unnecessary cruelty should be avoided, see: E. Spaventa, ‘Case-189/01, ‘H. Jippes, Afdeling Groningen van de Nederlandse Vereniging tot Bescherming van Dieren, Afdeling Assen en omstreken van de Nederlandse Vereniging tot Bescherming van Dieren / Minister van Landbouw, Natuurbeheer en Visserij’, Common Market Law Review (39) 5/2002, p. 1167, 1169; see by analogy: rec. 6 Dir. 2010/63/EU, which provides that the

3.2.2 Regulatory principle As mentioned before, Article 13 TFEU does not confer a general competence on animal welfare to the EU.155 Instead, Article 13 TFEU entails a horizontal clause, which is incorporated within the TFEU as a provision of general application and is categorized as a principle.156 This expresses that animal welfare is a legitimate objective within the public interest of the EU.157 Hence, Article 13 TFEU should be perceived as a regulatory principle. 158 It legitimizes the EU to adopt farm animal welfare measures, without conferring a general competence on animal welfare as such.159.Additionally, it allows the incorporation of animal welfare objectives within secondary law, either through amendments or cross-compliance.160 However, it should be observed that regulatory competence is not the same as a legal basis.161 Finally, Article 13 TFEU codifies as regulatory principle settled case-law and older animal welfare measures.162

capacity of animals to sense and express, pain, suffering, distress and lasting harm require the raising of animal welfare standards. 155 D.R. Ryland, ‘Animal welfare in the reformed Common Agricultural Policy: Wherefore art thou?,’ Environmental Law Review (17) 2015, p. 23. 156 The Lisbon Treaty introduced horizontal clauses to integrate the non-economic objectives of the EU within in certain areas, without conferring competence, in order to balance economic objectives against non-economic objectives, see: A. Arnull & D. Chalmers, The Oxford Handbook of European Union Law, Oxford: Oxford University Press 2017, p. 602-603, 966; Y. Nakanishi (eds.), Contemporary Issues in Environmental Law. Environmental Protection in the European Union, Tokyo: Springer (5) 2016, p. 14, 16-17, 87-91, 99, 101-104, 109-111; F. Weiss & C. Kaupa, European Union Internal Market Law, Cambridge: Cambridge University Press 2013, p. 13; Title II TFEU. 157 CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), para. 44; CJEU 29 May 2018, C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), paras. 63- 64; Conclusion A-G Wahl 30 November 2017, C-426/16, ECLI:EU:C:2017:926 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), para. 110; CJEU 25 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), para. 35; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), para. 27; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 22. 158 By analogy, Somsen and Fleurke argue define the precautionary principle as a regulatory principle because it legitimizes the EU to enact regulatory measures. Although the scope of application of Article 13 TFEU is not as broad as the precautionary principle, both applications derive their legitimacy from the actual conferred legal bases within the Treaties and are supplementary to the objectives them, see: F. Fleurke, ‘Future Prospects for Climate Engineering within the EU Legal Order’, European Journal of Risk Regulation (7) 2016, p. 71-72; H. Somsen, ‘Cloning Trojan Horses: Precautionary Regulation of Reproductive Technologies’, in: R. Brownsword & K. Yeung (eds.), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes, Oxford and Portland: Hart Publishing 2008, p. 221-226; H. Somsen, The Regulatory Challenge of Biotechnology, Chicester: Edward Elgar 2007, p. 126, 128. 159 For instance, Council Directive 74/577/EEC, Dir. 98/58/EC & Reg. 1099/2009; CJEU 17 January 2008, C-37/06 & C- 58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), paras. 24, 26; CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), para. 44 in conjunction with Article 13 TFEU and Reg. 1099/2009; CJEU 29 May 2018, C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), paras. 63-65 in conjunction with rec. 2 & Article 4(4) Reg. 1099/2009. 160 See, animal welfare requirements that are imposed on rural development: Articles 5(3) Reg. 1305/2013; Article 16(1)(b)(i) Reg. 1305/2013; Article 33 Reg. 1305/2013; Rec. 4, 23, 27, 38 Reg. 1305/2013; the cross-compliance system within the CAP: Article 200 Reg. 1308/2013; Article 33 (2) Reg. 1305/2013 in conjunction with: rec. 54, Article 93(1)(c) Reg. 1036/2013, SMR 11, 12, 13 Annex II Reg. 1306/2013, Articles 3 & 4 Council Dir. 2008/119/EC, Articles 3, 4 Council Dir. 2008/120, Article 4 Council Dir. 98/58; the payment of refunds for live animals: rec. 162 in conjunction with Article 200 Reg. 1308/2013; intertwining ‘organic farming’ to animal welfare, Articles 3(a)(iv), 5(h) & 14(1)(b)(viii) Reg. 834/2007 in conjunction with rec. 2, rec. 4 & Article 3(1) Reg. 1099/2009. 161 A regulatory principle merely legitimises certain measures within other conferred areas , see: paragraph 4.5.2. 162 Case-law provides that the Common market cannot disregard the public interest, such as animal welfare, see: CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 23; CJEU 23 February 1988, C-

3.2.3 Constitutional obligation Article 13 TFEU entails a formal constitutional behavioural obligation of the EU to protect animal welfare within the agricultural sector.163 To start with, the word “shall” within Article 13 TFEU entails a deontic commanding formal requirement as it addresses specifically the EU and Member States.164 Together with the verbs “pay full regard” and the other language versions of Article 13 TFEU, “shall” suggests an action of the legal subject to full fill its requirements.165 In contrast to “must”, as enshrined within Article 11 TFEU, “shall” within Article 13 TFEU does not entail a progressive duty, but rather constitutes a formal requirement.166 Therefore, Article 13 TFEU encompasses a constitutional obligation to respect the welfare requirements of animals.167 This obligation corresponds with the domestic constitutional obligations of other Member States.168 Of course, the way that this obligation is implemented remains at the discretion of the EU and Member States, though, it is to some extent open for judicial review.169 However, this obligation only concerns the formulation and implementation of EU policies within the given areas.170

131/86, ECLI:EU:C:1988:86 (UK/Council), para. 17; see also: Article 5 Dir. 98/58, which stipulates that: “the Commission shall submit to the Council any proposals which may be necessary for the uniform application of the European Convention for the Protection of Animals Kept for Farming Purposes.” 163 F. Fraser & D.M. Broom, Domestic Animal Behaviour and Welfare, Wallingford: CABI 2015, p. 5; D. Ryland & A. Nurse, ‘Mainstreaming after Lisbon: Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review (22), 2013-3, p. 110; furthermore, rec. 2 Dir. 2010/63/EU on the protection of animals used for scientific purposes, qualifies animal welfare as a ‘value’ that is enshrined within the Article 13 TFEU. 164 A. Felici, ‘ Shall ambiguities in EU legislative texts’, Comparative Legilinguistics (10) 2012, p.51-66; par. 2.3.2, Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation (2015), p. 12. 165 Other language-versions of Article 13 TFEU hold: “tragen die Union und die Mitgliedstaaten den Erfordernissen” (German); “houden de Unie en de lidstaten ten volle rekening met” (Dutch); “tiennent pleinement compte” (French); A. Felici, ‘ Shall ambiguities in EU legislative texts’, Comparative Legilinguistics (10) 2012, p. 60-61. 166 L. Krämer, ‘Giving a Voice to the Environment by Challenging the Practice of Integrating Environmental Requirements into other EU Policies’, in: S. Kingston (ed.), European Perspectives on Environmental Law and Governance, Abingdon: Routhledge 2013, p. 84-85, 89-91; Y. Nakanishi (eds.), Contemporary Issues in Environmental Law. Environmental Protection in the European Union, Tokyo: Springer (5) 2016, p. 93-94; J. Nowag, Environmental Integration in Competition and Free-Movement Laws, Oxford: Oxford University Press 2016, p. 19-20; S. Mahmoudi, ‘Protection of the European Environment after the Amsterdam Treaty’, Stockholm Institute for Scandinavian Law (39) 2000, p. 127; furthermore, “shall be taken into account”, as enshrined within Article 12 TFEU, implies rather a consideration then a requirement, see: A. Felici, ‘ Shall ambiguities in EU legislative texts’, Comparative Legilinguistics (10) 2012, p.51-66; par. 2.3.2, Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation (2015). 167 Constitutional provisions thereby encourages the development of more and stricter legislation, see: J. Vink, The Open Society and Its Animals (Diss. Leiden), Leiden: University of Leiden 2019, p. 206. 168 See, for instance: Article 20a Basic Law for the Federal Republic of Germany; Article 72(4) Official Gazette of the Republic of Slovenia; Article 11 Austrian Constitution; for more on constitutional state objectives to protect animal welfare, see: J. Vink, The Open Society and Its Animals (Diss. Leiden), Leiden: University of Leiden 2019, p. 197-201, 220-234, 237-245, 245-248. 169 Given the discretionary powers of the EU, the CJEU only assesses whether the measure is manifestly inappropriate, see: CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), paras. 80, 82-83. 170 “Implementation and formulation” of EU policies should be perceived broadly, varying from Commission decisions and legislative measures to the acts of the Commission or the EU. In particular because Article 13 TFEU is a ‘provision of general application’. ‘Analogical to Article 11 TFEU, ‘implementing’ also encompasses the adoption of

The phrase “full regard” in conjunction with “shall”, requires the EU and Member States to conduct a full risk-assessment on the risks of their policies towards animal welfare. 171 Additionally, “welfare requirements” and “sentient beings” imply that this assessment should observe the feelings, pathology, productivity, and physiology of the individual animal, with regard to its various coping mechanisms in respect to its environment.172 3.3 Article 13 TFEU within case-law Article 13 TFEU is not explicitly applied by the CJEU in order to determine to which extent animal welfare should be protected. In their reasoning, they rather refer to Article 13 TFEU to express the legitimacy of animal welfare objectives of the concerned measure. Instead, decisions concerning the scope of animal welfare protection are based on the interpretations of the provision itself.

Nevertheless, case-law indicates a progressive development towards animal welfare protection in which the objective of Article 13 TFEU is observed.173 The CJEU thereby rejected a textual interpretation of the measures and applied instead of an objective-based approach. Interestingly, both the A-G’s maintained a formal-approach and were reluctant to provide a higher level of animal welfare protection.

In Zuchtvieh A-G Bot concluded that according to the text of Reg. 1/2005, provisions on animal transport did not concern the transport of animals between the EU and third countries. 174 Yet, this position undermines the notion of animals as sentient beings within EU primary law. Given that animals remain sentient beings after they cross the EU-exit point, the formal distinction of A-G Bot between animal welfare within the EU until the EU-exit point and third countries is artificial.

secondary legislation, see: J. Nowag, Environmental Integration in Competition and Free-Movement Laws, Oxford: Oxford University Press 2016, p. 23-24. 171 In Jippes, CJEU observed that the EU legislator: “(…) considering the constraints attaching to different possible measures, (…) has taken full account of the requirements of animal welfare.”, see: CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), para. 85. 172 The actual procedures are formulated within secondary law and are supplemented by the opinions of AHAW of the EFSA and The Welfare Quality Assessment Protocols; see also: Article 7.1.1 Terrestrial Animal Health Code 2018, World Organization for Animal Health (OIE); A.F. Fraser & D.M. Broom, Domestic Animal Behaviour and Welfare, Wallingford: CABI 2015, p. 7, 26, 68; D.M. Broom, ‘Assessing welfare and suffering’, Behavioural Processes (25) 1991, p. 117; B. Nicks & M. Van den Heede, ‘Animal health and welfare: equivalent or complementary?’, in: D.J. Mellor & D. Bayvel, ‘Animal Welfare: focusing on the future’, OIE Scientific and Technical Review (33) 2014-1, p. 98; D.M. Broom, ‘Cognitive ability and sentience: Which aquatic animals should be protected?’, Diseases of Aquatic Organisms (75) 2007, p. 99–108; J.A. Mench, Advances in Agricultural Animal Welfare: Science and Practice, Cambridge: Woodhead Publishing 2018, p. 4-6. 173 CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), para. 44; CJEU 29 May 2018, C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), paras. 63- 64; Conclusion A-G Wahl 30 November 2017, C-426/16, ECLI:EU:C:2017:926 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), para. 110; CJEU 25 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), para. 35; see also: CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), para. 27; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), paras. 20, 22, 24, 26, 29. 174 According to A-G Bot the wording of Article 1(1) Reg. 1/2005 stated clearly: “the regulation ‘shall apply to the transport of live vertebrate animals carried out within the Community.”. The A-G rejected specifically compliance with ‘general conditions’ of Council Reg. 1/2005 for third-country transports, see: Conclusion A-G Bot 11 September 2014, C-424/13, ECLI:EU:C:2014:2216 (Zuchtvieh), paras. 47-49, 51-52, 54, 79-80, 84-87, 94-95.

According to the CJEU, the EU legislator laid down the principle that animals must not be transported in a way likely to cause injury or undue suffering.175 In contrast to A-G Bot, this obligation also applies to transports between the EU and third countries. 176 Zuchtvieh, therefore, demonstrates the pragmatic approach of the CJEU to protect animal welfare.177 Thus, even though the CJEU did not refer explicitly to Article 13 TFEU, they extended the scope of Reg. 1/2005 to third-country transports to protect animal welfare effectively.178

Similarly, A-G Wahl reasoned in OABA that the regulations on organic farming labelling did not lay down slaughter conditions or required information on the conditions of slaughter to the consumers.179 He stated that high animal welfare standards will be met regardless of the method of slaughter as Reg. 1099/2009 did not establish a principle of stunned slaughter.180 Again, the CJEU interpreted the concerning provision teleologically.181 According to the CJEU, Reg. 1099/2009 established a principle that obliged to ensure a high level of animal welfare.182 Thus, contrary to the A-G, the CJEU distinguished between minimizing pain by an accurate cut to the throat and keeping the animal’s suffering at a minimum through the means of pre-stunned slaughter.183 Although non-stunned slaughter was compatible with Reg. 1099/2009, it was “insufficient” to remove all pain “effectively”.184

175 CJEU 23 April 2015, C-424/13, ECLI:EU:C:2015:259 (Zuchtvieh), para. 36. 176 For instance, the CJEU held that it “must be taken as established” that certain provisions refer “generally” to transport of animals “without drawing any distinction according to place of destination”, see: CJEU 23 April 2015, C- 424/13, ECLI:EU:C:2015:259 (Zuchtvieh), para. 46 and furthermore paras. 37, 39-21, 43. 177 Namely, an obligation to prevent and protect animals against unnecessary harm during transport applies de facto on long journeys to third countries. 178 CJEU 23 April 2015, C-424/13, ECLI:EU:C:2015:259 (Zuchtvieh), paras. 36-38, 43, 49; it could be argued that the CJEU’s decision is based on provisions of Reg. 1/2005 that applied to third countries. However, the mere reference to provisions that apply to third-country transport does not necessarily mean that the instrument as such has an external scope of application. 179 Rec. 3 Reg. 834/2007 & Article 18 Reg. 889/2008 read in conjunction with: Conclusion A-G Wahl 20 September 2018, C-497/17, ECLI:EU:C:2018:747 (OABA/France), paras. 84-87, 95, 97. 180 Conclusion A-G Wahl 20 September 2018, C-497/17, ECLI:EU:C:2018:747 (OABA/France), paras. 80-83, 85, 90, 104 read in conjunction with rec. 43 and Articles 5 (2), 9 (3) & 15 (2) Reg. 1099/2009. 181 Article 3 & Article 14 (1)(b)(viii) Reg. 834/2007 together with rec. 4, 20, 24 Reg. 1099/2009 and Articles 2 (f) & 4 (1) Reg. 1099/2009, in the light of Article 13 TFEU. 182 CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), para. 47. 183 CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), paras. 42, 44-47, 48-49, 50-52. 184 The CJEU also held that consumer confidence towards organic labelling required the observance of high animal welfare standards, see: rec. 3 Reg. 834/2007 in conjunction with CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), para. 49-52.

Arguably, the objective-based approach, and the sufficiency and balancing test, indicate that the CJEU observed the notion of animals as sentient beings and their welfare requirements. It also suggests an application of the principle of ‘effet utile’. 185 The phrasing “read in light of Article 13 TFEU” should, therefore, be perceived as interpreting secondary animal welfare provisions in accordance with the essence of Article 13 TFEU.186 3.4 Expanding the role of the EU institutions As a regulatory principle and legitimate objective within the public interest, Article 13 TFEU could encourage EU institutions to protect animal welfare more assertively.

Firstly, the Commission and other institutions should not hold back to develop farm animal welfare policies. EU institutions could, for instance, annul legal acts based on the infringement of Article 13 TFEU in case animal welfare has not been fully observed.187 Notwithstanding the margin of discretion of the European legislator, a manifest error of the assessment could constitute an infringement of Article 13 TFEU.188

Moreover, the term “full” suggests a full risk-assessment on the effects of a measure on animal welfare. This allows the CJEU to assess whether the evidence substantiates the conclusions reached.189 Although the CJEU has not come across an annulment procedure based on the infringement of Article 13 TFEU, it has conducted a risk assessment on animal health and welfare. 190 In Schaible, the CJEU assessed the scientific assessment regarding the impact on animal welfare of the European legislator and balanced the adverse effects on animal welfare against the positive contributions to the protection of animal welfare. 191

185 This principle ensures an effective protection of EU law. In contrast to teleological interpretation, the principle of effet util entails a legal tool that enables the CJEU to provide an effective protection of EU law. See: CJEU 9 March 1978, C-106/77, ECLI:EU:C:1978:49 (Simmenthal), paras. 20, 22-24; CJEU 22 September 1988, C-187/87, ECLI:EU:C:1988:439 (Saarland v. Minister for Industry), paras. 16, 18-20; N. Fennelly, ‘Legal Interpretation at the European Court of Justice’, Fordham International Law Journal (20) 1996, p. 674-675; K. Gombos, EU Law viewed through the eyes of a national judge, Conference: ‘EU Legislative Drafting: Views from those applying EU law in the Member States’, Brussels 2018, p. 4; U. Šadl, ‘The Role of Effet Utile In Preserving the Continuity and Authority of European Union Law: Evidence From the Citation Web of the Pre-accession Case Law of the Court Of Justice of the EU’, European Journal of Legal Studies (8), 2015-1 p. 28. 186 CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), paras. 35, 52; C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), para. 81. 187 Article 263(2) TFEU in conjunction with Article 13 TFEU. 188 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), paras. 80, 82-83. 189 CJEU 15 February 2005, C-12/03 P, ECLI:EU:C:2005:87 (Tetra Laval), para. 48; D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 430-431; see by analogy the risk assessment of the CJEU on public health: CJEU 12 July 2005, C-154/04 & C-155/04, ECLI:EU:C:2004:848 (Alliance for Natural Health and Others), para. 73. 190 For instance, see: CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France); GCEU 17 May 2018, T- 429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta/Commission), paras. 107, 496-500; CJEU 19 June 2008, C- 219/07, ECLI:EU:C:2008:353 (Andibel), paras. 38, 41; see furthermore: I. Katsarova, ‘Animal welfare protection in the EU‘, European Parliament Think Tank 2013 (briefing), www.europar.europa.eu/thinktank (no. 130438REV1), p. 3; D. Ryland & A. Nurse, ‘Mainstreaming after Lisbon: Advancing Animal Welfare in the EU Internal Market’, European Energy and Environmental Law Review (22), 2013-3, p. 104-105. 191 CJEU 17 October 2013, C-101/12, ECLI:EU:C:2013:661 (Schaible), paras. 69, 71-74.

3.5 Conclusion The conclusion in this paragraph answers the following question:

In which way can Article 13 TFEU contribute to the protection of animal welfare in the European agricultural sector?

To start with, Article 13 TFEU recognizes animals as sentient beings independently from its scope of application. With this recognition, EU primary law acknowledges that animals can suffer and perceive feelings on an individual level. It also expresses a cultural attitude towards animals. Although Article 13 TFEU does not entail a prohibition or an active duty to protect animal welfare, it does oblige the EU and Member States to pay full regard to animal welfare requirements. Therefore, Article 13 TFEU imposes a constitutional behavioural obligation on EU institutions and Member States when they implement or formulate agricultural policies. This requires the EU and Member States to conduct a full risk assessment on the risks of their policies towards animal welfare. Also, the EU institutions or Member States could annul legal acts based on the infringement of Article 13 TFEU in case animal welfare has not been fully observed. Furthermore, Article 13 TFEU entails a regulatory principle, which legitimizes the EU to enact farm animal welfare measures and adopt a common farm animal welfare policy. The European legislator, therefore, should not hold back to develop farm animal welfare policies.

Article 13 TFEU also legitimizes the CJEU to extend the scope of animal welfare protection within the boundaries of secondary law. Although the CJEU rather refers to Article 13 TFEU to express the legitimacy of animal welfare objectives, the case-law demonstrates that they take the objective of Article 13 TFEU into account. In Zuchtvlieh and OABA, the CJEU applied an objective-based interpretation, conducted a sufficiency and balancing-test, and assessed the effects of the measure on animal welfare. Hence, Article 13 TFEU legitimizes the EU legislator and the CJEU to protect farm animal welfare actively and effectively and enshrines that animal welfare interest stands on equal footing with economic interest. 3.6 Formulating an EU farm animal welfare standard This paragraph integrates the theoretical framework on animal welfare, set out in paragraph 1.2.1, with Article 13 TFEU, to formulate an EU farm animal welfare standard. As mentioned before, animal welfare is value-based.192 The EU legislator, therefore, needs to determine its desired level of animal welfare. According to the aforementioned conclusion, EU primary law acknowledges animals as sentient beings and imposes a constitutional obligation to protect their welfare requirements. Hence, an animal-based EU standard on farm animal welfare should include the constitutional status of animals as sentient beings and protect the four animal welfare objectives integrally.

Thus, within the meaning of this thesis, ‘good animal welfare’ entails active integral protection of the four animal welfare objectives and thereby observes the status of animals as sentient beings. Now that the theoretical benchmark is explained, the next chapter analyses EU farm animal welfare law.

192 D. Fraser, ‘Understanding Animal Welfare’, Acta Veterinaria Scandinavia (50) 2008-1; F. Ohl & F.J. Van der Staay, ‘Animal welfare: At the interface between science and society,‘ The Veterinary Journal (192) 2012, p. 17-19.

4 FARM ANIMAL WELFARE WITHIN EU LAW

4.1 Introduction This chapter analyses the status of animals and animal welfare within EU law. To start with, paragraph 4.2 analyses secondary animal welfare law. Subsequently, paragraph 4.3 discusses animal welfare within the CAP. Paragraph 4.4 assesses the development of animal welfare within the case-law of the CJEU, while paragraph 4.5 discusses animal welfare enhancement through positive integration of EU law. Finally, paragraph 4.6 ends with the conclusion of this chapter. 4.2 Analysis of relevant secondary law This paragraph analyses the current secondary law instruments by providing an overview of whether the provisions are animal-based, resource-based, or management-based. It discusses to what extent the legal instruments observe the four animal welfare objectives integrally and ensure the status of animals as sentient beings.

4.2.1 Council Directive 98/58/EC – General Farm Animal Welfare Directive Dir. 98/58 provides the blueprint for EU farm animal law as it lays down minimum standards for all vertebrate animals that are being bred or kept for farming purposes.193 Articles 3 and 4 Dir. 98/58/EC address Member States to take “all reasonable steps” to protect animal welfare pursuant to the “established experience and scientific knowledge”.194 It also provides a regulatory competence to amend animal welfare laws, establish other ones, or adopt cross-compliance mechanisms. 195 Commission Decision 2006/778/EC, for instance, requires that both specific and general animal welfare requirements of Dir. 98/58/EC should be taken into account.196 Dir. 98/58 entails a mix of animal-based, resource-based and management-based animal welfare requirements.197 The four animal welfare objectives have been incorporated within the directive as well, though, vaguely.198 Finally, Dir. 98/58 provides a compliance mechanism by requiring Member States to ensure inspections.199

193 Article 1(1) Dir. 98/58/EC in conjunction with Article 2(1) Dir.98/58/EC; farmed fish are therefore excluded. 194 Like the exemption of stunning an animal before slaughter in case sufficient scientific evi dence suggest that a given stunning protocol provides for irreversible death to all animals: Rec. 26 Council Reg. 1099/2009. 195 Article 5(1), (3) Dir. 98/58; rec. 3 Dir. 1999/74; preamble(AE) & European Parliament, resolution 14 March 2017 on minimum standards for the protection of farm rabbits 2016/2077(INI), par. 36; S. Eck, Report on minimum standards for the protection of farm rabbits (Committee on Agricultural and Rural Development 30 January 2017), A8-0011/2017, p. 13. 196 Rec. 3-5, Article 1(a), Article 6 & Chapter III Annex II Commission Dec. 2006/778/EC, in conjunction with Dir/98/58/EC. 197 See for a detailed overview, figure 4.1. 198 Article 4 Dir. 98/58, for instance, refers to the animals physiological and ethological needs. 199 Article 6(1) Dir. 98/58.

Council Directive 98/58/EC – the protection of animals kept for farming purposes animal-based requirements rescourse-based management-based Provision description Provision description Provision description

Article 4 observing physiological and Annex 3 adequate lightning Article 3 ensuring compliance owners enthological needs Annex 4 care in case of visbile illment or Annex 8 adequate constuction of Article 6 ensuring inspections injurty accomodation Annex 7 freedom of movement + appropriate Annex 9 no sharp edges Annex 1 care by suffiecent numbers of competent staff physiological and etholigcal needs

Annex 14 wholesome diet appropriate to their Annex 10 air circulation + limits air Annex 2 inspection once a day or by sufficient intervals age and species in sufficient quantity humidity, dust, + provided in a manner that not temperature and gas causes uneccesary suffering or harm

Annex 15 feed intervals appropriate to their Annex 11 not in permanent in Annex 4 immediate respons in case of sickness physiological needs darkness or artificial light Annex 20 Prohbiting breeding prodcedures Annex 12 conditions for animals not Annex 5 Medical record keeping that would likley cause suffering or kept in buildings injury Annex 21 Prohibiting the farming of animals Annex 16 Acces to suitable water Annex 13 Daily inspection automated or mechanical that cannot be kept, on basis of their supply equipment for the health or well-being of the genotype or phenotype, due to animals + backup system for artificial detrimental effects on their health or ventilation welfare Annex 17 Feeding and watering Annex 18 No administering of substances that causes equipment designed to detrimental effect to the health and welfare of prevent contamination of animals, unless it is for therapeutic, food and water + minimize prophylactic or zootechnical treatment the harmful effects of competition between the animals Figure 4.1 scheme Council Dir. 98/58.

However, Council Dir. 98/58 does not establish a common desired level of animal welfare, nor does it protect the four animal welfare objectives integrally. It protects animal welfare passively instead of imposing a duty to provide a higher level of animal welfare. 200 As the directive entails a general harmonisation of farm animal welfare, Member States cannot restrict the free movement of goods.201 Harmonisation also restricts new Community measures in certain areas as they could be incompatible with the principles of proportionality and subsidiarity. 202 Furthermore, Dir. 98/58 is not enforced effectively by Member States.203

200 In other words, there is a difference between providing a minimum level of protection or achieving the highest level of animal welfare conditions. 201 In particular because Articles 3 and 4 Dir. 98/58 apply to all vertebrate farm animals. 202 See, for instance, the reaction of the Commission with regard to farm rabbit welfare. According to the Commission, Member States are already obliged to enact and enforce farm animal welfare measures, see: European Commission, Follow-up to the European Parliament resolution of 14 March 2017 on minimum standards for the protection of farm rabbits (2016/2077(INI)), SP(2017)390; Debates European Parliament, CRE 13/03/2017 – 16, Vera Jourová (see debate at: 21:48:27 – 21:52:01). 203 Member States have to ensure that ‘owners’ “ensure the welfare of animals under their care” and prevent unnecessary harm or suffering, see: Articles 3, 4 6, 10 and 12 Dir. 98/58; see also: DG Health and Food Safety,

As the provisions Council Dir. 98/58 do not constitute vertical and horizontal direct effect, individuals cannot invoke them in court against private parties or the state.204 Finally, the directive is outdated, and even though it stipulates that “No animal shall be kept for farming purposes unless it can reasonably be expected (…)”, not all harmful practices are phased out.205 Given that animals are sentient beings and their interests are on an equal footing to economic interest, the Commission should recast the directive.206 Therefore, Council Dir. 98/58 does not observe the notion of animals as sentient beings, nor does it protect animal welfare adequately.

4.2.2 Council Directive 1999/74/EC – Laying Hens Directive This directive lays down minimum standards to protect laying hens to improve the welfare of hens kept in battery cages and other rearing systems. 207 As social and sensitive animals, chickens require an environment that enables them to perform their ethological needs. 208 Council Dir. 1999/74 (‘Dir. 1999/74’) phased out unenriched cages and provides specific conditions for the type of housing system.209 In general, Dir. 1999/74 contains a lot of resource-based requirements.210 They contribute to the welfare of laying hens by providing them an enriched environment that observes their ethological needs and more space. Paradoxically, more space can lead to detrimental animal welfare effects.211 These problems are mostly caused by high stocking density.212 High stocking densities restrict chickens to establish a social hierarchy or perform other ethological needs without harming others.

It also contributes to the spreading of contagious diseases and causes social disturbance in case of negative flock-behavior.213 Without a fundamental debate on poultry farming and mass production, the resource-based provisions cannot protect poultry welfare effectively.

Overview report Commercial Rabbit Farming in the European Union, Luxembourg: Publications Office of the European Union, 2017, p. 2, 12. 204 Dir. 98/58 does not constitute vertical direct effect because it does not impose clear, precise, and unconditional obligations and requires additional measures, see: CJEU 4 December 1974, C-41/74, ECLI:EU:C:1974:133 (Van Duyn), paras. 12-13. 205 For instance, the slaughter of non-economic viable animals is still allowed; see: Annex 21 Dir. 98/58. 206 For instance, the slaughter of male chickens, or other male animals, without consumption purposes. 207 Rec. 7 Dir. 1999/74; Explanatory Memorandum on the protection of laying Hens (COM(1998)135, final), p. 3-10. 208 They need to: feed together, roost, preen, perform non-excessive pecking, take dust-bathes, have clean litter and build suitable nests. They also require the right light intensity as it would otherwise result in cannibalism. 209 This includes: alternative systems; enriched cages and unenriched cages, see: Article 3 Dir. 1999/74; Article 5(2) Dir. 1999/74. 210 See for a detailed overview, figure 4.2. 211 M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 71-78; T. Grandin, ‘Animal welfare and society concerns finding the missing link‘, Meat Science (98) 2014, p. 466; Opinion of the Scientific Panel on Animal Health and Welfare on a request from the Commission related to the welfare aspects of various systems of keeping laying hens, ‘The welfare aspects of various systems of keeping laying hens’, The EFSA Journal (197) 2005, p. 3-4. 212 In relationship with: bad management, poor feeding and inappropriate housing. For more on stocking density and chicken welfare, see: S. Brooshooft, Economic optimization of animal welfare in the Dutch broiler sector using the Welfare Quality® assessment protocol for poultry (Master thesis, Wageningen), Wageningen University 2014, p. 9-10, 19, 33. 213 Interestingly, outdoor systems constitute high risk on exposing chickens to contagious diseases, such as Avian influenza, or parasites and bacteria, such as Campylobacter spp, see: Opinion of the Scientific Panel on Animal Health and Welfare on a request from the Commission related to the welfare aspects of various systems of keeping laying hens, ‘The welfare aspects of various systems of keeping laying hens’, The EFSA Journal (197) 2005, p. 8-9.

Other issues are caused by poor feeding and genetic selection, which results in higher chances of intensive pecking/cannibalism and physiological complications.214 Furthermore, Dir. 1999/74 allows the practice of beak trimming even though studies indicate that beaks are sensitive and that trimmed beaks restrict other ethological needs of chickens, such as preening. 215 Given that animals are acknowledged as sentient beings, beak trimming is becoming untenable. Lastly, Dir. 1999/74 imposes no direct obligations on undertakings and neglects climate change issues or provisions regarding genetic selection.

In conclusion, Dir. 1999/74 provides the required resource-based and management-based provisions to ensure the health and ethological needs of chickens. However, the focus on production has led to high stock densities, which undermine the provisions of Dir. 1999/74. Therefore, Dir. 1999/74 is ineffective to protect animal welfare and should be updated.

214 Broilers, for instance, have to eat until their gut is completely full due to poor genetic selection, which causes them to have a constant hunger. Given that broilers are on a restrictive diet to prevent them from getting overweight, the constant hunger causes welfare problems, see: J.A. Mench, ‘ Broiler breeders: Feed restriction and welfare’, World's Poultry Science Journal (58) 2002, p. 23-29. 215 Beak trimming is allowed as it reduces intensive pecking and cannibalism, see: Annex 8 Dir. 1999/74; M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 71-72.

Council Dir. 1999/74/EC - minimum standards laying hens animal-based requirements rescourse-based management-based Provision description Provision description Provision description

Article 4(4) maximum stocking density of Article 4 (1)(a) providing linear feeders - 10 Annex 1 all hens must be inspected nine hens per m2 usable area cm per bird or circular feeders - once a day 4 cm per bird Article 6(1) Laying hens must have 750 cm2 Article 4 (1)(b) continuous drinking - 2,5 cm Annex 2 minimizing sound level (600 cm2 usable) cage area per per hen or circular drinking 1 hen, a nest, litter to peck and cm per hen; or one nipple scratch, and perches providing drinker per 10 hens or two 15 cm per hen cups for each hen in case of plumbed in drinking points Prohibiting mutalations, unless Article 4(1)(c) a nest for every seven hens or Annex 4 thoroughly cleansing and beak trimming to prevent 1 m2 place for a maximum of disinfection after depopulation pecking and cannibalism by 120 hens + regular satisfactorily cleaning Annex 8 qualified staff on chickens less than 10 days old

Article 4(1)(d) adequate perches

Article 4(1)(e) 250 m2 littered areau per hen

Article 4(2) adequate floors to support the forward-facing claws

Article 4 (3) conditions regarding the movement of hens between levels Article 5(1)(1) keeping conditions unriched cages, 550 cm2 per hen Article 5(1)(2) providing a feed trough providing nipple Article 5(1)(3) drinkers/drinking cups or a continuous drinking channel Article 5(1)(4) minimum height and surface Article 5((1)6) providing claw-shortening + Article 6(5) devices prohibiting unenriched cages Article 5(2) from 1 January 2012 a feed trough, 12 cm Article 6(2) multiplied by number of hens drinking system appropriate to Article 6(3) the group size aisle of 90 cm width betweeen tiers of cages + 35 between the Article 6(4) floor and the bottom tier of cages providing sufficient levels of light, following a 24-rhythm Annex 3 and a period of one third of the day of uninterrupted of darkness Annex 5 equipped to prevent escaping Accomodation of two or more tiers must have appropriate Annex 6 devices or measures to allow inspections Design cage must allow Annex7 removal of hens without constituting harm Figure 4.2 scheme Council Dir. 1994/74

4.2.3 Council Regulation 1/2005 – Animal transport Regulation Council Reg. 1/2005 was adopted In light of the Convention on Animal Transport to protect the welfare of animals during transport. 216 It pursues to limit long journey animal transports, prevent unnecessary harm and suffering, and impose strict enforcement. 217 Council Reg. 1/2005 also integrates cross- compliance mechanisms based on other delegated acts.218 Additionally, Reg. 2017/625 lays down specific rules for official controls by competent authorities to verify compliance with animal welfare provisions.219 As shown in figure 4.3, Reg. 1/2005 provides various management-based measures. The resource-based and animal-based measures are rather designed to mitigate unnecessary harm and suffering instead of promoting the ethological needs of animals. Animal transport is, therefore, more invasive to animal welfare than the keeping of animals as their ethological needs are restricted. Recent scandals and the increase of long-distance animal transports question whether the objective of Reg. 1/2005 can be achieved.220 Although Reg. 1/2005 minimizes the journey time, it does not require the establishment of alternatives for long journey animal transports. 221 From an animal-based perspective, alternatives for animal transports provide more benefits for animal welfare than allowing the transport of animals of long journeys.222

Article 3(b) Council Reg. 1/2005 also requires that animals should be “fit” for transport, but it is unclear what this means or how it should be assessed.223 Reg. 1/2005 thereby refers to certain physical conditions but excludes other animal welfare parameters, such as stress. 224 It also does not require any documentation on fitness concerning interstate transports.225

216 Council Dir. 77/489 harmonized the transportation of animals, which was repealed by Dir. 91/628 in order to provide stricter animal welfare rules, see also: Resolution European Parliament 20 February 1987 on animal welfare policy; rec. 7, 8, 9 Dir. 91/628/EC; rec. 2, 3, 7, 10 Reg. 1/2005. 217 Rec. 5, 6 Reg. 1/2005. 218 See, for instance, export-funds regarding living bovine animals: rec. 162, 168 Reg. 1308/2013; Articles 177, 200, 202(6) Reg. 1308/2013; see also, control internal frontiers: Article 21 Reg. 1/2005 in conjunction with Article 6 Dir. 91/496/EEC. 219 Rec. 93 Reg. 2017/625; Article 21 Reg. 2017/625. 220 L. Dale-Harris, ‘Revealed: exported EU animals subject to abuse and illegal conditions’, The Guardian 1 May 2017. 221 Reg. 1/2005 therefore only sets minimum standards, see: Article 3(a) Reg. 1/2005. 222 This includes local slaughter facilities together with transporting meat and carcasses or transporting only the semen and embryo’s. Additionally, the EP also insists to adopt alternative strategies for live animal transport, see: J. Dohrmann, Report on the implementation of Council Regulation No 1/205 on the protection of animals during transport within and outside the EU (2018/2110(INI)), Doc. A8-0057/2019, p. 22-23. 223 Articles 3(b), 20(2)(a), 21(1)(c) Council Reg. 1/2005 & Chapter I Annex I, paras. 1-3 Council Reg. 1/2005; See also: J. Dohrmann, Report on the implementation of Council Regulation No 1/205 on the protection of animals during transport within and outside the EU (2018/2110(INI)), Doc. A8-0057/2019, p. 22. 224 Ch. I Annex I Council Reg. 1/2005, para. 1. 225 Articles 21(2)(a) & (c)(i), 43, 47(1), 59(1) Reg. 2017/625 in conjunction with Article 15(2) Council Reg. 1/2005. They refer to “long journeys” or animals “entering the Union”; see also: DG Health and Food Safety, Overview report Systems to Prevent the Transport of Unfit Animals in the EU, Luxembourg: Publications Office of the European Union, 2015 p. 4.

Furthermore, the European legislator should decide whether long animal transports are still desirable in the light of climate change. Although animal transports during extreme heats are incompatible with Reg. 1/2005, only a few Member States banned animal transports in case of extreme heat. 226

Finally, given that the animal’s ethological needs are restricted, it should be assessed to what extent this restriction can be maintained without causing physical harm or detrimental levels of stress. Of course, the European legislator has to provide the desired benchmark and level of animal welfare.

Council reg. 1/2005 - the protection of animals during transport animal-based requirements rescourse-based management-based Provision description Provision description Provision description Rec. 5 For reasons of animal welfare Article 3(c) & means of transport should be Article 3 no person shall transport the transport of animals Chapter II - designed, constructed, animals in way likely to cause over long journeys should be Chapter IV, maintained and operated to injury or suffering limited as far as possible. Chapter VI avoid injury and suffering Annex I Article 3(b) & Animals have to be fit for the Article 3(d) loading and loading facilities Article 3(a) arangements in advance to Chapter I journey should be designed, minimise the lengt of the Annex I, paras. constructed, maintained and journey 1-3 operated to avoid injury and suffering Article 3(h) quality and quantity of food, Article 3(g) sufficient floor area Article 3(e) & training personnel handling water and rest according to Annex VI animals species and size Article 20 (2) check by comeptent authorities Chapter II sufficent space and adequate Article 3(f) regular checks animal welfare + whether animals are fit, are Annex I, para. ventilation transport without delay handeld according to Chapter III 1.2 Annex I, and are being provided food and water pursuant to Chapter IV(2) AnnexI

Chapter I prohibiting unneccessary Chapter II Strong partitions Article 3(h) offering water, feed and rest Annex I, para. sedatives Annex I, para. 5 1.4 Chapter I milking lactating females of Chapter II Providing piglets of less than Article 4 - transport requirements, Annex I, para. bovine, ovine and caprine Annex I, para. 10 kg, lambs less than 20kg, Article 7 & obligations transporter and 6 species withouth offspring 1.5 calves less than six months and Chapter III transport practices foals less than four months of Annex I age, with appropriate bedding

Chapter VI Appropriate bedding, food, Article 8 obligations keepers of animals Annex I water and rest Article 9 oblgations operators of assembly centres Article 10 - Provisions concerning Article 27 competent authorities on authorisation and enforcement

Annex II - Journey logs and forms Annex III Figure 4.3 Scheme Council Reg. 1/2005.

226 Hungary, for instance, banned all animal transport, while other Member States did not, see: ‘Despite EU Commission's heat wave alert, most Member States are continuing to transport animals’, Eurogroup for Animals, June 2019; see also: Annex Reg. 1/2005, Chapter II, paras. 1.1(b), 4.2 in conjunction with Annex Reg. 1/2005, Chapter VI, para. 3; DG Sante, Competent Authority comment on the draft report received on 29 November 2017, Annex, paras. 5.3-5.4, p. 2.

4.2.4 Council Directive 2007/43/EC – Broiler Directive Figure 4.4 shows that the Broiler directive imposes mainly technical and management-based requirements.227 According to the Commission, improving these specific requirements mitigates animal health issues.228 Resource and management-based requirements can have a significant effect on poultry welfare given the sensitive nature of poultry for environmental changes and their ‘in-their-nature behaviour’.229 Yet, there are three main issues not addressed by the Broiler Directive.

First, broilers are genetically bred to have an increased rapid growth rate within a short time, which causes various physiological problems. 230 Although periods of darkness can reduce food intake, the directive does not address the relationship between the period of darkness to reduce food intake. Secondly, the directive allows the practice of beak trimming.231 Even though beak trimming prevents harmful pecking behaviour and subsequent welfare issues, it also causes detrimental welfare effects. This includes pain as the beaks contain sensor receptors or other physiological issues, but also a restriction of their ‘in-their- nature’ behaviour, such as preening.232 Harmful pecking behavior is also connected to genetics and the third, more fundamental, problem. This concerns abnormal high stocking densities. 233 The many physiological problems indicate that high stocking densities either restrict the broilers’ ‘in-their-nature- behaviour’ or causes their natural behaviour to be harmful. 234 Notwithstanding that keeping conditions are more important than the size of the groups, research also concludes that smaller groups are easier managed.235 Given the status of animals as sentient beings and the integral protection of the four animal welfare objectives, high stocking densities are becoming untenable.

227 Broilers are chickens that are bred for consumption. 228 Proposal for a Council Directive laying down minimum rules for the protection of chickens kept for meat production (COM/2005/221 Final), Explanatory memorandum. 229 A well trained staff, for instance, that observes the ethological needs of poultry in relationship to their environment and can prevent detrimental effects on poultry welfare, see: rec. 9 Council Dir. 2007/43 in conjunction with The Welfare of Chickens Kept for Meat Production (Broilers) (Report of the Scientific Committee on Animal Health and Animal Welfare), 21 March 2000, p. 110. 230 This includes mainly physical problems, such as metabolic disorders resulting in leg problems, ascites and the sudden death syndrome etc., see: M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 75-77. 231 Beak trimming concerns the partically removal of the top and bottom of the bird’s beak;Annex I(12) Council Dir. 20017/43. 232 M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 71-72; for more on pecking vices and beak trimming, see: T.B. Rodenburg et al., ‘The prevention and control of feather pecking in laying hens: identifying the underlying principles’, World’s Journal of Poultry Science (69) 2013; I.J.H. Duncan, Animal Welfare Issues in the Poultry Industry: Is There a Lesson to Be Learned?, Journal of Applied Animal Welfare Science (4) 2001-3; R.E. Nordquist et al., ‘Mutilating Procedures, Management Practices, and Housing Conditions That May Affect the Welfare of Farm Animals: Implications for Welfare Research’, Animals (Basil) (7) 2017; M.J. Gentle, E. Seawright ‘The effects of partial beak amputation on circulating leucocytes in the domestic fowl’, Medical Science Research (16) 1988, p. 145-146. 233 Seen in a broader perspective, it concerns the focus on mass-production of chicken meat/upscaling of the broiler industry. 234 M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 77-78. 235 M. Bestman, Kippen houden zonder verenpikken De biologische legpluimveehouderij als uitgangspunt, Driebergen: Louis Bolk Instituut 2002, p. 44.

Council Directive 2007/43/EC - Broiler Directive animal-based requirements rescourse-based management-based Provision description Provision description Provision description Article 3(2) Maximum stocking density of Article 3(1)(a) compliance housing rules Article Mandating competent 33 kg/m2 Annex I 3(1)(b) authorities or official veterinarians to carry out inspections Article 3(2), (3) Increase of stocking density to Annex I(1) positioning and maintaining Article 4 Providing training for keepers 39 kg/m2 when complying with drinkers regarding welfare aspects Annex II mentioned in Annex IV + duty to instruct employed or engaged persons Article 3(4) Additional increase of 3 kg/m2 Annex I(2) Providing feed continuously or Article 7 Conducting inspections by when complying with Annex V be meal fed competent authorities or official veterinarians Annex I(12) Prohibiting surgical Annex I(3) All chickens shall have acces to Article 8 Stimulating good management interventions, except for beak dry and friable litter practice trimming when it is required + supervised castration under veterinarian supervision Annex I(4) Sufficient ventilation Annex I(8), inspecting chikcens twice a day (9) + providing appropriate treatment Annex I(5) Minimizing sound level Annex I(10) Cleaning of housing and equipment + providing clean litter Annex I(6), (7) Regulating light intensity Annex I(11) Record keeping Annex II(3)(a) Concentration ammonia does Annex II(1), Notification and not exceed 20 ppm + CO2 does (2) documentation on stocking not exceed 3000 ppm density and the taken technical details concerning the requirements of Annex I Annex II(3)(b) the inside temperature, when Annex III Documenting mortality rate the outside temperature when the stocking density measured in the shade excees 33 kg/m2 exceeds 30 °C, does not exceed this outside temperature by more than 3 °C

Annex II(3)(c) the average relative humidity Annex IV Training requirements, which measured inside the house includes the provisions of during 48 hors does not exceed Annex I and II, physiology, 70 % when the outside practical aspects, emergency temperature is below 10 °C care and preventive biosecurity measures Figure 4.4 Scheme Council Dir. 2007/43

Thus, the Broiler Directive should be recast and fundamentally change the keeping of broilers. This requires a multi-disciplinary approach to introduce genetic lines of broilers with a less high growth rate and pecking vices, restrict the weight of broilers, and phase out high stocking densities. 236

236T.B. Rodenburg et al., ‘The prevention and control of feather pecking in laying hens: identifying the underlying principles’, World’s Journal of Poultry Science (69) 2013; I.J.H. Duncan, Animal Welfare Issues in the Poultry Industry: Is There a Lesson to Be Learned?, Journal of Applied Animal Welfare Science (4) 2001-3; R.E. Nordquist et al., ‘Mutilating Procedures, Management Practices, and Housing Conditions That May Affect the Welfare of Farm Animals: Implications for Welfare Research’, Animals (Basil) (7) 2017; P. Koene, ‘Cannibalism in extensive poultry keeping: interfacing genetics and welfare’, Proceedings of the World Congress on Genetics Applied to Livestock

4.2.5 Council Directive 2008/119/EC – Calves Directive Council Dir. 2008/119/EC lays down minimum standards for the protection of calves. In comparison to its predecessor, Council Dir. 91/629/EEC, the current directive acknowledges that calves should benefit from an environment corresponding to their needs as herd animals.237 This includes the rearing in groups and sufficient space for their movement. As shown in figures 4.5.1 – 4.5.2, Council Dir. 2008/119 provides animal-based measures such as: phasing out veal crates, prescribing adequate diet standards, and requiring an environment that corresponds to their needs.238

A lot of the measures, however, are resource-based.239 While these measures have enhanced the welfare of calves to some extent, they do not require farmers to provide the highest level of animal welfare.240 Farmers are not obliged to prioritize ethological needs over cost-efficiency needs. Furthermore, resource- based requirements (partially) depend on subsidies that are hectare-based instead of welfare-based.241 Hence, non-intensive, sustainable, and animal-based farming remains unattractive. The directive also does not address the tenability of cost-efficiency-based intensive cattle farming in light of the status of animals as sentient beings.242 While intensive farming systems benefit the protection of animal welfare, they also raise ethical societal concerns regarding the animal welfare protection of the individual animal.243 Therefore, the European legislator needs to develop an ethical vision on animal husbandry that is compatible with the status of animals.

Production (27) 1998, p. 393-400; M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 77. 237 Rec. 7 Council Dir. 2008/119. 238 Rec. 7 Council Dir. 2008/119; Article 3(1), (2) Council Dir. 2008/119; Annex I(11), (13) Council Dir. 2008/119. 239 See Figure 4.5.1 – 4.5.2. 240 Most issues within the intensive rearing systems concerned health and ethological issues due to poor housing, feeding and management skills. This included the issues concerning the separation between calves and their mothers, as well as the isolation of calves from the group and inadequate intake of colostrum. For more on the welfare problems of calves within intensive rearing systems, see: S. Hristov et al., ‘Welfare problems in dairy calves’, Biotechnology in Animal Husbandry (27) 2011, p. 1417-1424; ‘Scientific Opinion on The risks of poor welfare in intensive calf farming systems. An update of the Scientific Veterinary Committee Report on the Welfare of Calves’, The EFSA Journal (366) 2006, p. 1-36. 241 Article 93(1)(c) & Annex II SRM 11 Reg. 1306/2013 in conjunction with Articles 3, 4 & Annex I Council Dir. 2008/119; rec. 21 & Article 32(1) Reg. 1307/2013; Article 52 (6) Reg. 1307/2013 in conjunction with Articles 2(13), 30(1) (2) Reg. 1306/2013; R. van der Burgh, L. Sengers, E. de Vos, ‘De EU subsidieert de vervuiling van het Nederlandse platteland - De boer broeit voort’, De Groene Amsterdammer 4 April 2018 (14). 242 Male calves, for instance, are just slaughtered because they have no economic value. 243 G.M. Gronin, J-L Rault & P.C. Glatz, ‘Lessons learned from past experience with intensive livestock management systems‘, in: D.J. Mellor & A.C.D Bayvel (eds.) , Animal Welfare: Focusing on the Future, Paris: OIE Scientific and Technical Review (33) 2014-1, p. 152-153.

Council Directive 2008/119/EC animal-based rescourse- management- Provision description Provision description Provision description Rec. 7 Benefiting from aan Article 3(1)(a) The width of any individual Annex I(1) Materials must be cleaned and environment that corresponds pen for a calf shall be at least disinfected to their needs, which includes equal to the height of the calf rearing in groups and enough at the withers, measured in space the standing position, multiplied by 1,1. Article 3(1)(a) Holdings built , rebuilt or Article 3(1)(a) Individual pens must have no Annex I(4) All automated or mechanical + Article 3(2) brought in use after 1 January solid walls, but preforated equipment essential for the 1998 shall no longer confine walls unless it concerns an calves’ health and well-being calfs to individual pens after isolation pen for sick animals must be inspected at least once eight weeks. The provisions of daily + rectifing defects and paragraph 1 shall apply to all safeguarding well-being during holdings from 31 December that reparation period 2006 Annex I(5) Calves must not be kept Article 3(1)(b) For calfs kept in groups the Annex I(4) Appropriate back-up system in permanently in darkness. To unobstructed space allowance case of artificial ventilation meet their behavioural and shall be at least equal to 1,5 systems in order to guarantee physiological needs, provision m2 for each calf less than 150 sufficient air renewal to must be made, allowing for the kilograms, at least equal to 1,7 preserve the health and well- different climatic conditions in m2 for calfs between the 150 being of the calves in the event the Member States, for kilogram 220 kilograms, and at of failure + alarm system appropriate natural or artificial least equal to 1,8 m2 for calfs lighting; of 220 kilograms or more.

Annex I(8) Calves must not be tethered, Annex I(1) Materials for the boxes and Annex 6 All housed calves must be with the exception of group- equipment must not be inspected by the owner or the housed calves which may be harmful person responsible for the tethered for no longer than one animals at least twice daily + hour at the time of feeding milk calves kept outside must be or milk substitute. Where inspected at least once daily tethers are used, they must not cause injury to the calves.

Figure 4.5.1 – Scheme Council Directive 2008/119

Council Directive 2008/119/EC animal-based rescourse- management- Provision description Provision description Provision description Annex I(11) All calves must be provided Annex I(2) Electrical circuits must prevent Annex I(8) Tethers must be inspected with an appropriate diet electrical shocks according to adapted to their age, weight national law and behavioural and physiological needs, to promote good health and welfare. To this end, their food must contain sufficient iron to ensure an average blood haemoglobin level of at least 4,5 mmol/litre, and a minimum daily ration of fibrous food must be provided for each calf over two weeks old, the quantity being raised from 50 g to 250 g per day for calves from eight to 20 weeks old.

Annex I(11) Calves shall not be muzzled Annex I(3) Insulation, heating and Annex I(9) Housing, pens, equipment and ventilation of the building utensils used for calves must must ensure that the air be properly cleaned and circulation, dust level, disinfected temperature, relative air humidity and gas concentrations are kept within limits which are not harmful to the calves. Annex I(12) Calves that are housed in Annex I(5) Artificial light must be Annex I(12) All calves must be fed at least groups and not being fed must available between 9 a.m. and 5 twice a day. have acces to the food ath the p.m. same time as the others of the group Annex I(13) All calves over two weeks of Annex I(7) The accommodation for calves age must have access to a must be constructed in such a sufficient quantity of fresh way as to allow each calf to lie water or be able to satisfy their down, rest, stand up and fluid intake needs by drinking groom itself without difficulty other liquids Annex I(15) Each calf must receive bovine Annex I(8) Tethers must be designed to colostrum as soon as possible avoid the risk of strangulaton after it is born and in any case or other injury within the first six hours of life Annex I(10) Floors must be smooth, but not slippery and have to be designed to avoid injury Annex I(14) Feeding and watering equipment must be designed, constructed, placed and maintained so that contamination of the calves’ feed and water is minimised Figure 4.5.2 – Scheme Council Dir. 2008/119

4.2.6 Council Directive 2008/120/EC – Pig Directive Council Dir.2008/120 lays down minimum standards for the protection of fattening and rearing pigs. It acknowledges the ‘in-their-behaviour’ of pigs in respect to their environment and the relationship between good animal welfare and social interaction.244 The directive also acknowledges the detrimental welfare effects of castration, tail-docking, tooth-clipping, and tooth-grinding. 245 The resource and management based requirements indicate an integral approach to the four different animal welfare objectives.246

However, the directive fails to address the welfare issues related to intensive pig farming as such. It only provides minimum standards, which facilitate intensive pig farming. Given the highly intelligent and social nature of pigs, the high stocking densities do not provide a higher level of pig welfare. Also, the resource- based requirements rather focus on protecting animal health instead of protecting the four animal welfare objectives integrally. Council Dir. 2008/120 also does not phase out farrowing crates, though, it acknowledges the social, behavioural, and environmental needs of pigs.247 Furthermore, even though the pig sector agreed voluntarily to phase out the surgical castration of pigs, the latest report concludes that these ambitions have not been realised.248 Yet, in light of the best practices on preventing ‘boar taint’ without surgical castration, the surgical castrating of pigs is becoming untenable.249 Thus, although the directive was at that time revolutionary for improving pig welfare, current knowledge on pig welfare requires a higher standard and a divergence to interest-based pig farming.

244 Rec. 8, 10 Council Dir. 2008/120; Annex I(D)(2) Council Dir. 2008/120; for more on pig welfare, see: IC de Jong et al., ‘Effects of strawbedding on physiological responses to stressors and behavior in growing pigs’, Physiology and Behavior (64) 1998-3, p. 303-310; I. Czucholl, K. Büttner, E. Beilage & J. Krieter, ‘Review of the assessment of animal welfare with special emphasis on the "Welfare Quality® animal welfare assessment protocol for growing pigs’, Archives Animal Breeding (58) 2015 237-249. 245 Rec. 11 Council Dir. 2008/120. 246 See figures 4.6.1 – 4.6.3. 247 Scientific Opinion of the Panel on Animal Health and Welfare, ‘Animal health and welfare aspects of different housing and husbandry systems for adult breeding boars, pregnant, farrowing sows and unweaned piglets’, European Food Safety Authority (EFSA) 2007; E. Casa, ‘Intensive pig farming: Ethical considerations’, Derecho Animal. Forum of Animal Law Studies (8) 2017; ‘An HSI Report: The Welfare of Animals in the Pig Industry’, Humane Society International, May 2014 (www.hsi.org); ‘Recommendations for the on-farm welfare of pigs: Submission to the OIE by the International Coalition for Animal Welfare’, IFAW March 2016. 248 European Declaration on alternatives to surgical castration of pigs; G. Backus et al., Second progress report 2015 – 2017 on the European declaration on alternatives to surgical castration of pigs, Expert Group on ending surgical castration of pigs: 2018; N. De Brinye, C. Berg, T. Blaha & D. Temple, ‘Pig castration: will the EU manage to ban pig castration by 2018?’, Porcine Health Management (29) 2016. 249 DG Health and Food Safety, Establishing best practices on the production, the processing and the marketing of meat from uncastrated pigs or pigs vaccinated against boar taint (immunocastrated) – Final report, Luxembourg: Publications Office of the European Union 2019; A. Heid & U. Hamm, ‘Consumer attitudes towards alternatives to piglet castration without pain relief in organic farming: Qualitative results from Germany’, Journal of Agricultural Environmental Ethics (25) 2012, p. 687-706; ‘Piglet Castration in Germany. Striving towards a complete renunciation.’ Qualitätssicherung Vom landwirt bis zur ladentheke 2009.

Council Directive 2008/120/EC animal-based requirements rescourse-based requirements management-based requirements Provision description Provision description Provision description Rec. 8 Pigs should benefit from an Article 3(1)(a) Availability unobstructed floor Rec. 9 When pigs are kept in groups, environment corresponding to area for each weaner or appropriate management their needs for exercise and rearing pig kept in groups. measures for their protection investigatory behaviour. The should be taken to improve welfare of pigs appears to be their welfare. compromised by severe restrictions of space. Rec. 10 Sows prefer to have social Article 3(1)(b) Available unobstructed floor Article 3(4) Ensuring that sows and gilts are interactions with other pigs. area for each gilt after service kept in groups during a period Thus, prohibits the keeping or gilts and sows within groups starting from four weeks after sows in continuous close of at least 1,64 m2 and 2,25 m2. the service to one week before confinement. Groups of less dan six animals the expected time of is 10% increase, while groups farrowing. of more than 40 can decrease with 10% Rec. 11 Rules for castration, tail- Article 3(2)(a) At least 0,95 m2 per gilt and at Article 3(7) All dry pregnant sows and gilts, docking, tooth-clipping and least 1,3 m2 per sow, must be in order to satisfy their hunger tooth-grinding because these of continuous solid floor of and given the need to chew, practices are likely to cause which a maximum of 15% is are given a sufficient quantity immediate pain and some reserved for drainage of bulky or high-fibre food as prolonged pain to pigs. openings well as high-energy foo

Article 3(5) Sows and gilts have permanent Article 3(2)(b) Width of openings in case of Article 3(8) Aggresive pigs have to be kept access to manipulable material concrete slatted floors temporarily appart

Article 3(7) All dry pregnant sows and gilts, Article 3(3) Prohibition constructions or Article 6 Employees have to instructions in order to satisfy their hunger conversions of installations for and guidance to handle pigs. and given the need to chew, the thethering of gilts and are given a sufficient quantity sows from 1 January 2006 of bulky or high-fibre food as well as high-energy foo

Annex I(3) The construction should allow Article 3(4) The sides of pens containing Annex I(2) Pigs must be kept in light with all pigs to lie at the same time, groups of pregnant sows and an intensity of at least 40 lux rest and get up normally and gilts must have sides be for a minimum period of eight see each other. greater than 2,8 m in length or hours per day. 2,4 m in case the group contains less than six individuals. Sows and gilts raised on holdings with fewer than 10 sows may be kept individually, provided that they can turn around easily in their boxes. Annex I(4) Pigs must have permanent Article 3(5) Sows and gilts have permanent Annex I(4) Pigs must have permanent access to a sufficient quantity access to manipulable material access to a sufficient quantity of material to enable proper of material to enable proper investigation and manipulation investigation and manipulation activities, such as straw, hay, activities, such as straw, hay, wood, sawdust, mushroom wood, sawdust, mushroom compost, peat or a mixture compost, peat or a mixture

Figure 4.6.1 – Scheme Council Dir. 2008/120

Annex I(8) Procedures resulting in damage Article 3(6) Sows and gilts kept in groups Annex I(6) All pigs must be fed at least to or the loss of a sensitive part are fed by a system, which once a day. of the body or the alteration of ensures that each individual bone structure shall be obtains sufficient food even prohibited, unless: uniform when competitors for the food reduction of corner teeth of are present piglets, docking part of the tail, castration of male pigs (by not tearing the tissues) and nose- ringing, preformed by veterinarians or trained persons. However, tail docking and reducting corner teeth cannot be carried out routinely, but requires evidence of injuries to other pigs.

Annex I(B)(1) Measures shall be taken to Annex I(1) No continuous noise above 85 Annex I(7) All pigs over two weeks of age minimise aggression in groups. dBA and avoidance of constant must have permanent access to or sudden noise a sufficient quantity of fresh water. Annex I(B)(2) Pregnant sows and gilts must, if Annex I(2) Pigs must be kept in light with Annex I(B)(2) Pregnant sows and gilts must, if necessary, be treated against an intensity of at least 40 lux necessary, be treated against external and internal parasites. for a minimum period of eight external and internal parasites. hours per day. Annex I(B)(3) In the week before the Annex I(3) Accomodatition must provide Annex I(B)(3) In the week before the expected farrowing time sows e access to a lying area expected farrowing time sows and gilts must be given suitable physically and thermally and gilts must be given suitable nesting material in sufficient comfortable as well as nesting material in sufficient quantity. adequately drained and clean, quantity. which allows all the animals to lie at the same time, rest and get up normall and see other pigs. Annex I(B)(4) An unobstructed area behind Annex I(5) Floors must be smooth but not Annex I(D)(1) When pigs are kept in groups, the sow or gilt must be slippery and o designed, measures must be taken to available so that they can rest. constructed and prevent fighting which goes maintained as not to cause beyond normal behaviour. injury or suffering to pigs. They must be suitable for the size and weight of the pigs and, if no litter is provided, form a rigid, even and stable surface.

Annex I(C)(2) No piglets shall be weaned Annex I(6) Where pigs are fed in groups Annex I(D)(2) Pigs should be kept in groups from the sow at less than 28 and not ad libitum or by an with as little mixing as days of age unless the welfare automatic system feeding the possible. If pigs unfamiliar with or health of the dam/piglet animals individually, each pig one another have to be mixed, would be adversely affected. must have access to the food this should be done at as young at the same time as the others an age as possible, preferably in the group. before or up to one week after weaning. Piglets can be weaned seven Annex I (7) All pigs over two weeks of age Annex I(D)(3) When signs of severe fighting days earlier if they are moved must have permanent access appear the causes shall be to specialized housings. to a sufficient quantity of fresh immediately investigated and water. appropriate measures taken. Animals at risk or particularly aggressive animals shall be kept separate from the group Figure. 4.6.2 – Scheme Council Dir. 2008/120

Council Directive 2008/120/EC animal-based requirements rescourse-based requirements management-based requirements Provision description Provision description Provision description Annex I(D)(1) When pigs are kept in groups, Annex I(A) Boar pens must be sited and Limited use of tranquillising measures must be taken to constructed so as to allow the medicaments in order to prevent fighting which goes boar to turn round and to hear, facilitate mixing and obliged beyond normal behaviour. smell and see other pigs. consultation with a veterinarian Annex I(D)(2) Pigs should be kept in groups The unobstructed floor area with as little mixing as possible. available to an adult boar must If pigs unfamiliar with one be at least 6 m2 or 10 in case of another have to be mixed, this floors used for natural services should be done at as young an age as possible, preferably before or up to one week after weaning. Annex I(B)(4) An unobstructed area behind the sow or gilt must be available. Annex I(B)(5) Farrowing pens must have farrowing rails. Annex I(C)(1) Floors for piglets mst be solid or covered with a mat or littered with straw or other suitable materials Annex I(C)(2) Farrowing creates must have sufficient space so that piglets can be suckled without difficulty. Annex I(D)(2) When pigs are mixed they shall be provided with adequate opportunities to escape and hide from other pigs. Figure. 4.6.3 – Scheme Council Dir. 2008/120

4.2.7 Council Regulation. 1099/2009 – Slaughter Regulation Council Reg. 1099/2009 governs the slaughter of all vertebrate animals that are bred or kept for the production of food, wool, skin, fur, or other products.250 It also provides specific conditions for religious slaughter without pre-stunning.251 Moreover, Council reg. 1099/2009 imposes a direct obligation on the business operators or the animal handlers and the butchers. Figures 4.7.1 – 4.7.4 demonstrate that the regulation contains a lot of management-based requirements, which is obvious given the essential characteristic of stunning and slaughtering animals. The regulation furthermore provides animal-based requirements. 252 By referring to ‘best practices in the field’ and ‘state of the art’, the regulation acknowledges the dynamic nature of animal welfare science.253

250 Articles 1(1) and 2(c) Council Reg. 1099/2009; nevertheless, it scope excludes reptilians and amphibians or poultry, rabbits and hares that are slaughtered for private domestic consumption, see: Articles 1(1), (3)b) Council Reg. 1099/2009; the regulation also applies to the killing of animals for the purpose of depopulation and for related operations, see: Article 1(1) Council Reg. 1099/2009. 251. Article 4(4) Council Reg. 1099/2009, this matter, however, will not be discussed in-depth. 252 These requirements are also reflected within the Welfare Quality® protocols for pigs among slaughterhouses Figures 4.7.1 – 4.7.2; Ch. 5.3, 5.4, 6.1B, 6.3, 6.4 Welfare Quality® protocol for pigs; see also: Welfare Quality® protocols for Cattle (without veal calves) and Welfare Quality® protocols for poultry. 253 Rec. 6 Council Reg. 1099/2009; Articles 20(2) 24, 25, 27 Council Reg. 1099/2009.

Regulation 1099/2009 animal-based requirements rescourse-based requirements management-based requirements Provision description Provision description Provision description Article 3(1) Animals shall be Article 2(a) Prevention from falling or Rec. 2 Business operators should take spared any slipping the necessary measures to avoidable pain, avoid pain, distress and distress or suffering suffering by taking the best during their killing methods in the field into and related account and the permitted operations methods within this regulation

Article Protecting animals Article Animals shall not Rec. 8 Compliance slaughter houses 3(2)(b) from injury 3(2)(e) prolongedly withdrawn from with food safety rules feed or water Article Handle and house Article 3(3) Slaughter facilities shall be Rec. 46 Installation of animal welfare 3(2)(c) animals according designed, constructed, officier in big slaughterhouses to their normal maintained and operated in behaviour accordance with the obligations set out in paragraphs 1 and 2 Article Ensuring that no Article 3 Business operators shall 3(2)(d) animal shows signs (2)(a) provide physical comfort and of avoidable pain or protection in clean and fair or exhibit adequate thermal conditions abnomal behaviour

Article Animals shall not Article Business operators protect 3(2)(e) prolongedly 3(2)(b) animals from injury withdrawn from feed or water Article Animals are Article Business operators handle and 3(2)(f) prevented from 3(2)(c) house animals according to the avoidable harmfull their behaviour interactions with other animals Animals shall only Article Business operators ensure that be killed after 3(2)(d) no animal shows signs of stunning in avoidable pain or fair or exhibit accordance with the abnomal behaviour methods and specific requirements related to the Article 4(1) application of those methods set out in Annex I The loss of Article Business operators ensure that consciousness and 3(2)(e) animals are do not suffer from sensibility shall be prolonged withdrawal of feed maintained until or water the death of the animal Figure 4.7.1 – Council Reg. 1099/2009.

Regulation 1099/2009 animal-based requirements rescourse-based requirements management-based requirements Provision description Provision description Provision description Article Ensuring Article Business operators prevent 6(1)(b) effectiveness of the 3(2)(f) avoidable harmfull interactions stunning method with other animals

Article 4(1) The loss of consciousness and sensibility shall be maintained until the death of the animal Business operators ensure that persons responsible for stunning or other nominated staff carry out regular checks to ensure that the animals do not present any signs of consciousness or sensibility Article 5(1) between the end of the stunning process and death. When an animal is not properly stunned, the person in charge of stunning shall immediately take the appropriate measures

Article 5(3) Business operates can use checking procedures within the meaning of Article 13 Article 6(1) Business operators shall plan in advance the killing of animals and related operations in accordance with standard operating procedures

Article 6(2) Business operators shall draw up and implement standard operating procedures in accordance with Article 3(1) Article Observing the manufacturers's 6(2)(a) recommendations Article define for each used stunning 6(2)(b) method the key parameters according to Ch. 1 Annex ! Article Specify measures in case an 6(2)(c) animal is not properly stunned or presents signs of life Article 6(4) Business operators make their standard operating procedures available to the competent authority upon request

Article 7 Killing and related operations shall only be carried out by persons with the appropriate level of competence Figure 4.7.2

Regulation 1099/2009 Animal-based requirements Rescourse-based requirements Management-based requirements Provision Description Provision Description Provision Description Article The layout and construction Article 14(1) Business operators ensure that 14(1) of slaughterhouses and the the layout and construction of equipment therein complies slaughterhouses and the with Annex II equipment therein complies with Annex II

Annex II Rules concerning the layout, Article Business operators provide construction and equipment 14(2)(a) upon request by the of slaughterhouses competent authority the the maximum number of animals per hour for each slaughter line Annex III, Conditions for animals that Article Business operators provide par. 1.2 have not been slaughtered 14(2)(b) upon request by the within 12 hours competent authority the categories of animals and weights for which the available restraining or stunning equipment may used Article Business operators provide 14(2)(c) upon request by the competent authority the maximum capacity for each lairage area Article 15(1) Business operators ensure compliance with the operational rules set out in Annex III Article 15(2) Business operators ensure that all animals that are killed without prior stunning are individually restrained; ruminants shall be mechanically restrained Article 15(3) With exemption of point (a) and (b) concerning shackels for poultry, the following restraining methods are prohibited; (a) suspending/hoisting conscious animals, (b) mechanical clamping/tying of legs or feet, (c) serving the spinal cord with a puntilla or dagger, or (d) the use of electric currents that does not stun, kill or not span the brain Article 16 Business operators implement appropriate monitoring procedures, including specific ones for each slaughter line Figure 4.7.3

Regulation 1099/2009 Animal-based requirements Rescourse-based requirements Management-based requirements Provision Description Provision Description Provision Description Article 17 Business operators designate an animal welfare officer Article 18 Competent authority esthablishes an action plan in case of depopulation operations Article 19 The keeper of the animals takes all necessary measures to kill an animal as soon as possible in case of an emergency killing Annex I, Ch. Stunning methods 1 Operational rules for slaughterhouses concerning the arrival, moving and Annex III handeling of animals, specific provisions for large mammals in lairage and the bleeding of animals Figure 4.7.4

Council Reg. 1099/2009 acknowledges that animal slaughter induces pain, distress, or suffering and thereby distinguishes between (necessary) avoidable suffering and unavoidable suffering.254 However, not all of the allowed stunning and slaughter methods reduce suffering or stress effectively.255 Sowery rightly notes that the regulation requires stunning ‘without pain’, while some “painless” slaughter methods can cause substantial suffering.256 Although Member States can adopt higher standards based on new scientific insights, they cannot impose import bans on products from other Member. 257

Furthermore, Council Reg. 1099/2009 fails to observe the sometimes conflicting relationship between the four animal welfare objectives and their integral protection. This leads to different animal welfare parameters among slaughter methods, which then result in conflicting animal welfare objectives with detrimental animal welfare effects. For example, stunning pigs by carbon dioxide causes less pre-slaughter stress as they are not restrained or separated, but induces visible detrimental physical welfare effects on them.258

254 Rec. 2 Council Reg. 1099/2009; Article 3(1) Council Reg. 2009/1099. 255 The European legislator has acknowledged this problem, see: rec. 6 Council Reg. 1099/2009. 256 In addition, she, along with the EFSA, criticizes also the shackling of live poultry, see: K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018-55, p. 84. 257 Rec. 57 Reg. 1099/2009; Article 26(1), (2) Reg. 1099/2009 in conjunction with Article 26(4) Reg. 1099/2009. 258 A.R. Steiner et al., ‘Humanely Ending the Life of Animals: Research Priorities to Identify Alternatives to Carbon Dioxide’, Animals (Basil) (9) 2019-11; Opinion EFSA, Animal welfare aspects in respect of the slaughter or killing of pregnant livestock animals (cattle, pigs, sheep, goats, horses)‘, EFSA Journal (15) 2017-5, p. 39; P. Brandt & M.D. Aaslyng, ‘Welfare measurements of finishing pigs on the day of slaughter: A review’, Meat Science (103) 2015, p. 13- 23; D. Bolaños-López et al., ‘CO2 gas stunning pigs: controversies in animal welfare and behaviour’, Meat Science

In contrast, electric stunning instantaneously stuns pigs but causes more pre-slaughter stress to them as they have to be separated and is not always effective to maintain unconsciousness.259 The regulation thereby fails to observe the value-based notion of animal welfare as the evaluation of slaughter methods also depends on how society perceives their detrimental welfare effects. 260

Certain aspects of Council Reg. 1099/2009 also are at odds with the notion of animals as sentient beings.261 First, some allowed slaughter methods, such as the maceration of non-stunned live male chicks up to 72 hours, are incompatible with the notion of animals as sentient beings. 262 Second, the regulation does not take into account that slaughterhouses are driven by process-efficiencies and mass production.263 It thereby lacks a time or quantity limit during the slaughter process. Controlling veterinarians and animal welfare officers, therefore, do not have enough time to assess the animals adequately. A huge quantity of animals also means that not every stunning or slaughter method can be applied as the choice of stunning and slaughter methods depends on their economic viability. 264

(98) 2014, p. 193-197; B. Nowak, T.V. Mueffling & J. Hartung, ‘Effect of different carbon dioxide concentrations and exposure times in stunning of slaughter pigs: Impact on animal welfare and meat quality’, Meat Science (75) 2007- 2, p. 290-298; ‘Welfare Aspects of Animal Stunning and Killing Methods (Opinion of the Scientific Panel on Animal Health and Welfare on a request from the Commission related to welfare aspects of the main systems of stunning and killing the main commercial species of animals)’, EFSA, AHAW/04-027, 2004, p. 54; Werkvoorschrift NVWA Toezicht op welzijn van hoefdieren en gekweekt wild op slachthuizen (WLZVL-017), NVWA 12 January 2018, p. 12, 15. 259 Effective stunning, however, is essential, see: Article 4(1) Council Reg. 1099/2009; A. Dalmau et al., ‘Application of the Welfare Quality® protocol in pig slaughterhouses of five countries’, Livestock Science (193) 2016, p. 84. 260 Terminology like “humanely slaughter” indicate a human perspective on animal welfare. Even though the pre- stunning of pigs by carbon dioxide is less stressful, the public opinion presumably regards the 30 seconds of visible physical suffering appalling. For more on value-based animal welfare, see: D. Fraser, ‘Understanding Animal Welfare’, Acta Veterinaria Scandinavia (50) 2008-1; F. Ohl & F.J. Van der Staay, ‘Animal welfare: At the interface between science and society,‘ The Veterinary Journal (192) 2012, p. 17-19. 260 R. Schütze, European Union Law, Oxford: Oxford University Press 2018, p. 579. 261 Article 13 TFEU in conjunction with rec. 1, 2, 19 Council Reg. 1099/2009, Article 3(1) Council Reg. 1099/2009. 262 Maceration entails the live shredding of male chicks, which should be done “instantaneously” in order to cause “immediate death”, see: Article 4(1) Council Reg. 1099/2009 in conjunction with Annex I, Ch. 1, No. 4 & Annex I Ch. 2(2) Council Reg. 1099/2009. Yet, this method is debated and considered to be aesthetically unpleasant within the public opinion. Alternatives methods therefore seek to avoid potential suffering, which include the usage of dual- purpose chicken breeds or in ovo sexing techniques to identify male embryos before hatching or incubation, see: Y. Vizzier Taxton et al., ‘Symposium: Animal welfare challenges for today and tomorrow’, Poultry Science (95) 2016-4, p. 2201-2202; C.J. Nicol et al., Farmed Bird Welfare Science Review, Melbourne: Department of Economic Development, Jobs, Transport and Resources 2017, p. 54. 263 DG Sante, Final Report of an Audit Carried Out in Poland From 04 February 2019 to 08 February 2019 in Order to Assess the Operation of Official Controls Over the Production of Bovine Meat, 2019-6839; S. Kevany, ‘Abuse of animals rife on farms across Europe, auditors warn’, The Guardian 14 November 2018; D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!’, Groene Amsterdammer (41) 2018. 264 Rec. 6 Council Reg. 1099/2009.

Moreover, recent scandals indicate a compliance issue. 265 In principle, Member States and their competent authorities are responsible for ensuring compliance and maintaining enforcement. 266 Consequently, the frequency, quality, and organisation of enforcement policies and activities between Member States differ, which precludes a common animal welfare level during slaughter. 267 This is incompatible with the notion of animals as sentient beings, which require an equal level of animal welfare protection within the entire EU. For sure, the CJEU held in OABA/France that the regulation established a principle of pre-stunning and thereby assessed the effectiveness of a slaughter method.268 However, due to the specific context of the case, it remains unclear to which length the CJEU will go.269 Can they, for instance, prohibit an allowed slaughter method that constitutes high detrimental effects on animal welfare? Now, the regulation acknowledges that any stunning technique presents certain drawbacks and also provides for implementation and evaluation mechanisms. 270 Arguably, this constitutes a certain margin in which the CJEU could phase out certain methods without overstepping its judicial boundaries.

Nevertheless, the industrialized process in which slaughterhouses operate precludes adequate supervision by competent authorities and animal welfare officers. Under Council Reg. 1099/2009, the position of the animal welfare officer is vulnerable as its independency does not enjoy the same legal protection as, for instance, a data protection officer. 271 A less intensive slaughter process, camera surveillance, and a better position of the animal welfare officer could restore the monitoring of slaughterhouses. Hence, Council Reg. 1009/2009 should be updated and address the focus on productivity.

265 D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!’, Groene Amsterdammer (41) 2018; R. Wassens, ‘NVWA deelt bijna vijftig boetes uit aan Nederlandse slachthuizen’, NRC 19 June 2018; ‘Slachthuis 23' maakt een puinhoop van het doden van varkens’, RTL nieuws 19 June 2018; L. Dale-Harris, ‘Revealed: exported EU animals subject to abuse and illegal conditions’, The Guardian 1 May 2017; Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016, p. 5, 15; D.M. Broom, Animal Welfare in the European Union (at request by the European Parliament), DG for Internal Policies, Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 9, 39; S. Vetter, L. Vasa & L. Ózsvári, ‘Economic Aspects of Animal Welfare’, Acta Polytechnica Hungarica (11) 2014, p. 126; The European Union Strategy for the Protection and Welfare of Animals 2012-2015, COM(2012)6 final, p. 4-6. 266 Articles 1(2)(f), 3(3)(a), 4, 5, 18, 137(1) Reg. 2017/625 in conjunction with rec. 54 Council Reg. 1099/2009, Articles 2(q), 22 Council Reg. 1099/2009. 267 In the Netherlands, private undertakings are the first line of supervision at slaughterhouses, while the competent authority, NVWA, fails to enforce and monitor animal welfare adequately, see: Feitenonderzoek toezichtsketen en tekortkomingen hierin kleine- en middelgrote slachthuizen Noord-Nederland (on request by the Dutch Ministry of Agriculture, Nature and Food Quality), Katwijk: 2Solve Investigations 2019; D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!’, De Groene Amsterdammer (41) 10 October 2018; see also: Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016, p. 5, 15; D. M. Broom & D-G for Internal Policies (at request by the European Parliament), Animal Welfare in the European Union, Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 9, 39. 268 CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), para. 45-47, 50. 269 In OABA/France, the main issue concerned whether the Organic logo of the EU could be placed on animal products that were derived from non-pre-stunned slaughtered animals. 270 Rec. 2, 6 Council Reg. 1099/2009; Articles 24, 25 Council Reg. 1099/2009. 271 See Article 17(3) Reg. 1099/2099 in comparison with rec. 97 & Article 38(3) Reg. 2016/679 – General Data Protection Regulation (“GDPR”).

4.3 Animal welfare and the CAP Article 38(1) TFEU establishes a CAP, which entails a lex specialis of the internal market.272 Its objectives are enshrined within Article 39 TFEU and encompass all farming activities, including animal husbandry.273 However, the status of animals and farm animal welfare within the CAP is ambiguous.

To start with, animal welfare protection as such is not included as one of the objectives within Article 39(1) TFEU. Instead, the CAP focusses on productivity and production, which promotes intensive livestock farming and mass production. 274 Agricultural subsidies thereby facilitate intensive livestock farming because they are hectare and quantity based. 275 Animals are furthermore regarded as agricultural products or mere resources within both the TFEU and agricultural economics.276 On one occasion, even animal health requirements were qualified as methods of production by the CJEU.277 Hence, the debate on improving farm animal welfare focusses on the impact of production, competition, and profits.278

272 In the aftermath of WWII, Member States enacted national agricultural protectionist policies. Thus, the Treaty of Rome constituted a special CAP in order to dissolve agricultural protectionism, see: R. Schütze, European Union Law, Oxford: Oxford University Press 2018, p. 579; Article 38(1) TFEU in conjunction with Article 39 TFEU, Article 40(1)(c) TFEU and Article 40(2) TFEU. 273Though, Article 39 TFEU does not mention ‘animal husbandry’ or ‘livestock farming’ explicitly, other EU provisions provide that animal husbandry is part of the CAP, such as: recitals Council Dir. 98/58; European Court of Auditors, Animal welfare in the EU: Closing the gap between ambitious goals and practical implementation, Special Report (31) 2018, p. 10. 274 Article 39(1)(a) TFEU; K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018/55, p. 57; D.J. Wadiwel, “Like One Who is Bringing his Own Hide to Market”: marx, irigaray, derrida and animal commodification’, Angelaki, Journal of the Theoretical Humanities (21) 2016-2, p. 65-82; S. McMullen, Animals and the Economy, London: Palgrave Macmillan UK (The Palgrave Macmillan Animal Ethics Series) 2016, p. 31, 51, 171, 189-190; F. Veraart, ‘Agriculture and Foods: Overproduction and Overconsumption’, in: H. Lintsen et al. (eds.), Well-Being, Sustainability and Social Development: The Netherlands 1850-2050, Cham: Springer 2018. 275 For instance, Article 93(1)(c) & SRM 11 Annex II Reg. 1306/2013 in conjunction with Articles 3, 4 & Annex I Council Dir. 2008/119; rec. 21 & Article 32(1) Reg. 1307/2013; Article 52 (6) Reg. 1307/2013 in conjunction with Articles 2(13), 30(1) (2) Reg. 1306/2013; R. van der Burgh, L. Sengers & E. de Vos, ‘De EU subsidieert de vervuiling van het Nederlandse platteland - De boer broeit voort’, De Groene Amsterdammer 4 april 2018 (14); D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!’, Groene Amsterdammer (41) 2018; European Court of Auditors, Animal welfare in the EU: Closing the gap between ambitious goals and practical implementation, Special Report (31) 2018, p. 22, 29- 35, 48-50. 276 Article 38(1) TFEU in conjunction with Annex I; K. Sowery, ‘Sentient beings & tradable products: the curious constitutional status of animals under Union Law’, Common Market Law Review (1) 2018/55, p. 57; S. McMullen, Animals and the Economy, London: Palgrave Macmillan UK (The Palgrave Macmillan Animal Ethics Series) 2016, p. 141-157; T. Regan, ‘The Radical Egalitarian Case for Animal Rights’, in: L. Pojman (ed.), Life and Death: A Reader in Moral Problems, Belmont: Wadsworth Publishing Company 1999, p. 442-445; T. Regan, The Case for Animal Rights, Berkeley: University of California Press 2004, p. 338-345, 349. 277 CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 23-24. 278 A. Henningsen & T. G. Czekaj, ‘The Relationship between Animal Welfare and Economic Performance at Farm Level: A Quantitative Study of Danish Pig Producers’, Journal of Agricultural Economics (69) 2018-1, p. 144-145; I.J. Visseren-Hamakers, ‘A framework for analyzing and practicing Integrative Governance: The case of global animal and conservation governance’, Environment and Planning C: Politics and Space (36) 2018, p. 1406-1407; E.Majewski, M. Hamulczuk, A.Malak-Rawlikowska, M.Gębska & D.Harvey, ‘Cost-effectiveness assessment of improving animal welfare standards in the European Agriculture’, Selected Paper prepared for presentation at the International Association of Agricultural Economists (IAAE) Triennial Conference 2012, p. 2-3, 19; T.G. Czekaj, A.S. Nielsen, A. Henningsen, B. Forkman & M. Lund, The relationship between animal welfare and economic outcome at the farm

Nevertheless, EU law acknowledges animals as sentient beings and obliges the EU and Member States to pay full regard to animal welfare with regard to the CAP.279 Moreover, secondary animal welfare law and case-law integrated animal welfare protection within the CAP.280 According to the CJEU, the CAP cannot disregard matters of public interest, such as animal welfare. 281 Secondary law thereby stipulates to observe the behavioural needs of animals and to protect them against: “any avoidable pain, distress or suffering.”282 Secondary law also incorporated scientific animal welfare insights and addressed the value of animal welfare within the EU. 283 Furthermore, even though most economists regard animals as products, they regard animal welfare to be either a public good, merit good, or moral good.284

level (IFRO Report, No. 222), Frederiksberg: Department of Food and Resource Economics, University of Copenhagen 2013, p. 14-15, 20-24. 279 Article 13 TFEU read in conjunction with Article 39(1)(a) TFEU. 280 In line with Article 13 TFEU – or the pre-existing Protocol – secondary laws such as rec. 4, 19 Reg. 1099/2009 and rec. 1, 11 Reg. 1/2005 acknowledge the importance of animal welfare requirements and the sentient nature of animals. See also: Conclusion A-G Wahl 21 January 2016, C-469/14, ECLI:EU:C:2016:47 (Masterrind), para. 29. 281 CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 23-24. 282 Article 3(1) Reg. 1099/2009; see also: Article 3 Reg. 1/2005 – “No person shall transport animals (…) in a way likely to cause injury or undue suffering to them.” in conjunction with Annex I Reg. 1/2005, para. 1 – “(…) all animals shall be transported in conditions guaranteed not to cause them injury or unnecessary suffering.”; rec. 8 Council Dir. 2008/120 – “Pigs should benefit from an environment corresponding to their needs for exercise and investigatory behaviour.”, in conjunction with Article 4(1) Council Dir. 2008/120 & Annex I Council Dir. 2008/120; rec. 7 Council Dir. 2008/119 – “It is recognised scientifically that calves should benefit from an environment corresponding to their needs as a herd-living species.”, in conjunction with Article 4(1) Council Dir. 2008/119 & Annex I Council Dir. 200/119, para. 11 – “All calves must be provided with an appropriate diet adapted to their age, weight and behavioural and physiological needs, to promote good health and welfare.” 283 Article 7.1.3(2) Terrestrial Animal Health Code, The World Organisation for Animal Health (‘OIE’) 2018; H. Buller et al., ‘Towards Farm Animal Welfare and Sustainability’ , Animals (8), 2018-6; EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2017-2030, DG Agricultural and Rural Development, European Commission, 2017, p. 43; DG Health and Food Safety & DG for Communication (at request by the European Commission), Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016. 284 Public goods are non-excludable, non-rival and provide non-commercial benefits within the public interest and, thus, requires government intervention. Animal welfare regulation is a public good because society as a whole obtains utility from their awareness on animal welfare requirements. A merit good regards animal welfare desirable for the entire society when it is consumed, regardless of the willingness to pay. A moral good provides a minimum animal welfare standard independent from consumer valuation in order to give utility to consumers, but also allows market-based incentives. See: T. Christensen, S. Denver & P. Sandoe, ‘How best to improve farm animal welfare? Four main approaches viewed from an economic perspective’, Animal Welfare (28) 2019, p. 98; D. Blandford & D. Harvey, ‘ Economics of Animal Welfare Standards: Transatlantic Perspectives’ , EuroChoices (13) 2014-3, p. 35-40; D. Harvey & C. Hubbard, ‘Reconsidering the political economy of farm animal welfare: An anatomy of market failure’, Food Policy (38) 2013, p. 105-114; J. L. Lusk & F.B. Norwood, ‘Animal Welfare Economics’, Applied Economic Perspectives and Policy (33) 2011-4, p. 474-475; see also: K. Hart et al., What Tools for the European Agricultural Policy to Encourage the Provision of Public Goods, DG for Internal Policies, Policy Department B: Structural and Cohesion Policies (at request by the European Parliament's Committee on Agriculture and Rural Development) 2011, p. 21, 26; H.M. Nielsen et al, ‘How to Consider the Value of Farm Animals in Breeding Goals. A Review of Current Status and Future Challenges’, Journal of Agricultural and Environmental Ethics (24) 2011, 309-330.

4.4 Animal welfare and the CJEU This paragraph discusses the development of animal welfare within case-law at the hand of four patterns that could be derived.

The first pattern concerns the relationship between the free movement of goods and animal health/welfare. In Holdijk, the Netherlands imposed a non-discriminatory domestic provision to protect the welfare of calves as the protection of fatting calves at that time was not governed by EU law. 285 In line with Groenveld, the CJEU ruled that unilateral provisions based on animal health, in the absence of harmonisation, justified derogation from the free movement of goods.286 Similarly, the Monsees-case, in which Austria prohibited the international transport of animals for slaughter to limit the transportation time. Even though the measure was disproportionate, the CJEU nevertheless held that Member States could retain restrictions based on animal health until the transportation date of the directive expired. 287

However, the CJEU has rejected pleadings based on animal health in case of harmonisation. In Hedley Lomas, the UK refused export licensing for sheep to Spain because a certain number of Spanish slaughterhouses violated Council Directive 74/577 EEC.288 The CJEU ruled that recourse to Article 36 TFEU was no longer possible when secondary legislation provided the necessary measures to achieve the objective.289 Furthermore, the CJEU argued Articles 5 and 189(3) EEC guarantee that Member States will implement secondary law effectively and therefore must trust each other.290 A similar reasoning can be found in Compassion. In this case, the applicant ordered the UK to restrict the export to Spain due to the Spanish practice of rearing calves in veal boxes. 291 According to the CJEU, the UK could impose stricter animal welfare standards, but could not impose export restrictions as the Spanish provisions complied with secondary EU law.292

285 Article 2(b) Royal Decree of 8 September 1961 on fatting calves (‘Mestkalverenbesluit’) in conjunction with Article 1 Law on the Protection of Animals (‘Wet op de dierenbescherming’), read in light of: CJEU 1 April 1982, C-141/81 – C-141/83, ECLI:EU:C:1982:122 (Holdijk), para. 13. 286 CJEU 8 November 1979, C-15/79, ECLI:EU:C:1979:253 (Groenveld), paras. 5, 7-9; CJEU 1 April 1982, C-141/81 – C- 141/83, ECLI:EU:C:1982:122 (Holdijk), para. 9, 11, 13-14. 287 CJEU 11 May 1999, Case C-350/97, ECLI:EU:C:1999:242 (Monsees), paras. 24, 27. 288 According to the UK, Article 36 EEC justified the refusal of export licensing in case another Member States failed to comply with secondary law. See: CJEU 23 May 1996, C-5/94, ECLI:EU:C:1996:205 (Hedley Lomas), paras. 3-4, 7, 13(1), 14-16. 289 CJEU 23 May 1996, C-5/94, ECLI:EU:C:1996:205 (Hedley Lomas), paras. 18, 21; See by analogy, Van den Burg in which the CJEU held that prohibiting the importation and marketing of lawfully hunted birds, under Council Dir. 79/409, from other Member States, could not be justified under Article 36 EEC or subjected to stricter rules than the directive, see: CJEU 23 May 1990, C-169/89, ECLI:EU:C:1990:227 (Van den Burg), paras. 8, 15-16 290 Even unilaterally adopted corrective and protective measures in order to obvi ate any breach of EU Law by other Member States were prohibited, see: CJEU 23 May 1996, C-5/94, ECLI:EU:C:1996:205 (Hedley Lomas), para. 19; CJEU 21 September 1989, C-68/88, ECLI:EU:C:1989:339 (Commission/Greece), paras. 19, 23. 291 CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (United Kingdom/Compassion in World Farming). 292 CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (United Kingdom/Compassion in World Farming); D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 906; see

The second pattern entails that the EU legislator can legitimately take animal welfare into account. First of all, the EU legislator is allowed to ban animal-tested cosmetic products and seal products based on animal welfare concerns to protect the internal market.293 With regard to the CAP, the CJEU ruled in UK/Council that the CAP must observe animal health as it is a matter within the public interest.294 The CJEU thereby regarded farm animal welfare measures to be measures of production and market organisation and thus held that these measures pursued the objectives of the CAP.295

For instance, in Viamex, the EU legislator was allowed to subject payment of export refunds for live bovine animals to compliance with animal-welfare legislation. 296 Although A-G Mengozzi held that this was not proportionate, the CJEU argued that the measure was not manifestly inappropriate and in the pursuit of a legitimate objective.297 Thus, the EU can legitimately adopt farm animal welfare measures based on the CAP or the internal market.298

293 CJEU 21 September 2016, C-592/14, ECLI:EU:C:2016:703 (European Federation for Cosmetic Ingredient/UK), paras. 34-36; GCEU 25 April 2013, T-526/10, ECLI:EU:T:2013:215 (Commission/Inuit Tapiriit Kanatami II), paras. 35, 64, 83, 90, 96; CJEU 3 September 2015, C-398/13 P, ECLI:EU:C:2015:535 (Commission/Inuit Tapiriit Kanatami II), paras. 26- 27, 31; M. Bungenberg, M. Krajewski, C. Tams, J.P. Terhechte & A.R. Ziegler (eds.), European Yearbook of International Economic Law 2017, Cham: Springer 2017, p. 472; Y. Nakanishi (eds.), Contemporary Issues in Environmental Law. Environmental Protection in the European Union, Tokyo: Springer (5) 2016, p. 105-109. 294 CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 26-27; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017/3, p. 553; T. Camm & D. Bowles, ‘Animal Welfare and the Treaty of Rome – A Legal Analyssis of the Protocol On Animal Welfare And Welfare Standards In The European Union’, Journal of Environmental Law (12) 2000/2, p. 199-200. 295 The CJEU regarded the introduction of common quality standards for improving the quality of the products and perfecting the organization of production as ‘the characteristic feature of the organization of the market in eggs’. By harmonizing the conditions for laying hens, the EU protected the functioning of the common market and thus the objective of the CAP. Finally, although the CJEU referred to ‘the keeping conditions for animals’, it entailed animal health requirements and thus by analogy also animal welfare, see: CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 19, 23-24, 26-27, in conjunction with Article 38(1) TFEU; Article 39(1) TFEU, Article 40(1), (2) TFEU; Article 43(1), (2) TFEU. 296 In Viamex, Article 5(3) Reg. 615/98 stipulated that no export refunds for live bovine animals will be paid in case of non-compliance with Council Dir. 91/628, see: Article 13(9) Reg. 805/68 in conjunction with Articles 1, 5(2), (3) Reg. 615/98 under reference to Council Dir. 91/628; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), paras. 5, 20. CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), paras. 22-24, 26. 297 According to A-G Mengozzi, Reg. 615/98 placed all the responsibilities of the directive upon transporters without imposing specific appropriate penalties. Instead, Reg. 615/98 penalized any infringement of the directive by forfeiting the right to refund, while Council Dir. 91/628 obliged Member States to ensure compliance by adopting specific appropriate penalties. However, the CJEU held that Reg. 615/98 was not manifestly inappropriate. Article 5(3) Reg. 615/98 was restricted by Articles 4, 5(2), Reg. 615/98 or by Article 5(3) Reg. 615/98, which only concerned elements related to animal welfare. Furthermore, the CJEU argued that linking payment of export funds to specific animal welfare provisions upholds a public-interest requirement. In particular because this measure ensures that the EU does not finance exports made in breach EU animal welfare law. Moreover, the objective to protect animal welfare also imposes an obligation on the EU with regard to the CAP, see: Opinion A-G Mengozzi 13 September 2007, C-37/06 & C-58/06, ECLI:EU:C:2007:513 (Viamex & ZVK), paras. 38-40, 53, 55-56; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 26 under reference to paras. 22-24, 26, 37-44. 298 CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 26-27; CJEU 17 January 2008, C- 37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 23.

The third pattern involves the debate about the status of animal welfare as a principle. In Jippes, the CJEU explicitly states that animal welfare is not a general principle of EU-law.299 Nevertheless, case-law provides that the protection of animal welfare is “a legitimate objective in the public interest.”300 Furthermore, A- G Bobek holds that animal welfare is a “significant value” within the EU and therefore can be balanced against other values within the margin that is provided by the EU legislator. 301 With the introduction of Article 13 TFEU, it also became clear that animal welfare is restricted to certain areas. Thus, although animal welfare is not a general principle of EU law, it does entail a legitimate objective within EU law.

Lastly, the fourth pattern entails the active involvement of the CJEU to protect animal welfare. In Jippes, the CJEU held that the Protocol imposed an obligation to pay full regard to welfare requirements, which could be verified through a proportionality assessment.302 The CJEU thereby assessed the effects of the measure on animal health or welfare in light of the conducted risk assessment by the Commission. 303 In Schaible, the CJEU also balanced the adverse effects of a measure on animal welfare against the positive effects of that measure on animal welfare. 304 Furthermore, the CJEU applied in OABA/France and Zuchtvieh, in contrast to the A-G’s, an effect-based approach instead of a formal textual-based approach.305

299 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands), paras. 74-75-76. 300 CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), para. 44; CJEU 29 May 2018, C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), paras. 63- 64; Conclusion A-G Wahl 30 November 2017, C-426/16, ECLI:EU:C:2017:926 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others), para. 110; CJEU 23 April 2015, C-424/13, ECLI:EU:C:2015:259 (Zuchtvieh), para. 35; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 23; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), para. 27; this corresponds with UK/Council in which animal health protection was regarded to be a matter of the public interest that should be observed by CAP, see: CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 26-27. 301 Conclusion A-G Bobek 17 March 2016, C0592/14, ECLI:EU:C:2016:179 (EFfCI/United Kingdom), paras. 20-21. 302 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands), para. 79. 303 CJEU 17 May 2018, T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta/Commission), paras. 117, 120, 124, 129-130; CJEU 10 September 2009, C-100/08, ECLI:EU:C:2009:537 (Commission/Belgium), paras. 101-102; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 37-38, 41; CJEU 12 July 2005, C-154/04, ECLI:EU:C:2005:449 (Alliance for Natural Health and Others), para. 73; D. Cao & S. White (ed.), Animal Law and Welfare – International Perspectives, Cham (Switzerland): Springer 2016, p. 51-52. 304 This concerned the mandatory affixation of an electronic identifier application in order to identify animals that have been in contact during epizootic disease out breaks. As it concerned the legality of a legal act, the CJEU applied a restricted balancing-test. According to the CJEU, the measure would limit the spread of contagious diseases and thus enable the avoidance of infection, which had greater positive effect on the animal welfare, see: CJEU 17 October 2013, C-101/12, ECLI:EU:C:2013:661 (Schaible), paras. 69, 71-74; see by analogy Commission/Belgium, in which the CJEU ruled that the Belgian legislator forsook the assessment on the negative effects on animal health by a general identification method with anodised rings, regardless the size and type of bird, see: CJEU 10 September 2009, C- 100/08, ECLI:EU:C:2009:537 (Commission/Belgium), paras. 104-105; see also: CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 37-38. 305 Conclusion A-G Bot 11 September 2014, C-424/13, ECLI:EU:C:2014:2216 (Zuchtvieh), paras. 47-49, 51-52, 54, 79- 80, 86-87, 94-95 in comparison to: CJEU 23 April 2015, C-424/13, ECLI:EU:C:2015:259 (Zuchtvieh), paras. 37, 49; Conclusion A-G Wahl 20 September 2018, C-497/17, ECLI:EU:C:2018:747 (OABA/France), paras. 80-83, 85, 90, 104 in comparison to: CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), paras. 42, 44-47-50, 52.

Additionally, the CJEU applied in OABA/France a balancing and sufficiency test to assess “the effects” of non-stunned slaughter and pre-stunned slaughter on animal welfare. This enables the CJEU to effectively protect animal welfare. Thus, post-Lisbon case-law indicates that the CJEU, in light of Article 13 TFEU, ensures a high level of animal welfare within the boundaries of secondary law.306 4.5 Saving sentience Inspired by the aforementioned analysis, this paragraph provides some thoughts on safeguarding the sentient nature of animals through positive integration of EU law. 307 It focusses in particular on strengthening the enforcement of EU farm animal welfare law.

4.5.1 A different perspective Law does not operate in a social vacuum. Thus, before delving into the legal measures, it is necessary to develop a different perspective on farm animals and animal husbandry within EU law.308 First of all, animal welfare should be regarded as a moral good as its protection is rooted in law independent from consumer valuation.309 Also, animal labour should no longer be perceived as mere capital.310

Secondly, farm animals should, given their status as sentient beings, no longer be perceived as products but rather as members of the agricultural community. As members of the agricultural community, the interest of farm animals also requires protection from that community.311

306 Rec. 20 & Article 4(1) Reg. 1099/2009 in conjunction with CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), paras. 46, 52; rec. 5 & rec. 11 Reg. 1/2005 in conjunction with CJEU 23 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), paras. 35-36. 307 Positive integration of EU law entails harmonisation through adopting legal measures on the EU level, see: Art. 26 TFEU; P. Caro de Sousa, ‘Negative and Positive Integration in EU Economic Law: Between Strategic Denial and Cognitive Dissonance?’ German Law Journal (13) 2012, p. 979-1012 (2012); J. Weiler, ‘Mutual Recognition, Functional Equivalence and Harmonization in the Evolution of the European Common Market and the WTO’, in: F. Kostoris & P. Schioppa (ed.), The Principle of Mutual Recognition in the European Integration Process 25, United Kingdom: Palgrave Macmillan 2005; F.W. Scharpf, ‘Negative and Positive Integration in the Political Economy of European Welfare States’, in: M. Rhodes et al (ed.), The Future of European Welfare States, London: Palgrave Macmillian 1998. 308 Article 39(2)(c) TFEU thereby stipulates that the CAP is linked to “the economy as a whole”. A different perspective on animals therefore influences the perspective of animal husbandry within the economy. 309 Animal welfare is in general regarded as a public good because society as a whole obtains utility from their awareness on animal welfare requirements. Determining, however, the market price for public goods remains difficult because consumption patterns not correspond with the willingness to pay. Moreover, letting animal welfare protection depend on consumer attitudes is incompatible with the notion of animals as sentient beings. Blandford & Harvey therefore perceive animal welfare as a moral good. The state thereby imposes a minimum animal welfare standard independent from consumer valuation, but also allows the market to provide higher animal welfare standards, see: T. Christensen, S. Denver & P. Sandoe, ‘How best to improve farm animal welfare? Four main approaches viewed from an economic perspective’, Animal Welfare (28) 2019, p. 98; D. Blandford & D. Harvey, ‘ Economics of Animal Welfare Standards: Transatlantic Perspectives’ , EuroChoices (13) 2014-3, p. 35-40; D. Harvey & C. Hubbard, ‘Reconsidering the political economy of farm animal welfare: An anatomy of market failure’, Food Policy (38) 2013, p. 105-114. 310 See by analogy Piketty’s view on human labour within economics: T. Piketty, Capital in the Twenty-First Century (A. Goldhammer, trans.), Cambridge: Harvard University Press 2017, p. 58, 202-203; D. Wadiwel, ‘Piketty’s Capital should force a rethink on animals as property’, The Conversation 2015, www.theconversation.com (search on: animals as property). 311 In comparison with co-citizenship, the claim is not that animals should have co-authorship over legislation, but that their interest should be observed within policies and legislation, see: A. Cochcrane, ‘Labour Rights for Animals’,

This obligation can be expressed within law by imposing a duty of care on business operators to protect animal welfare. Contrary to Cochrane’s argument, membership within the context of animal production does not preclude animal slaughter. 312 What is excluded are the conditions that induce suffering.313 Another way to observe the status of animals as members of the agricultural community is by perceiving them as workers. Like workers, animals represent an economic value but have individual interests that should be protected by the business operator.314 By perceiving animals as working members, lawyers could draw inspiration from human labour conditions to improve the ‘working conditions’ of animals.315

Arguably, the status of animals as members disrupts the internal market. However, this argument is not valid as, for instance, data protection also influences the internal market but enables nonetheless a data economy in respect to the right of data protection.316

Consequently, a different perspective on farm animals influences the practice of animal husbandry. 317 Instead of focussing on production and productivity, animal husbandry should be animal interest-based.318 Furthermore, anthropogenic climate change requires a shift from production-based animal farming to sustainable agriculture that focuses on dietary changes towards more plant-based diets.319

Academia.edu, p. 7, 9, published in: R. Garner & S. O’Sullivan (eds.), The Political Turn in Animal Ethics, London: Rawmann and Littlefield 2016; for more on co-citizenship, see: E.R. Meijer, Political Animal Voices (diss. Amsterdam UvA), Amsterdam: UvA-DARE 2017, p. 120-122, 154-155; W. Kymlicka, ‘Social Membership: Animal Law beyond the Property /Personhood Impasse’, Dalhousie law journal (40) 2017, p. 123-152; S. Donaldson & W. Kymlicka, ‘Linking animal ethics and animal welfare science: commentary on Broom on animal welfare’, Animal Sentience (5) 2016, p. 2; S. Donaldson & W. Kymlicka, Zoopolis: A Political Theory of Animal Rights, Oxford: Oxford University Press 2011, p. 250-258; S. McMullen, Animals and the Economy, London: Palgrave Macmillan UK (The Palgrave Macmillan Animal Ethics Series) 2016, p. 189-190. 312 Cochrane provides no in-depth analysis why killing as such undermines the well -being of animals, see: A. Cochcrane, ‘Labour Rights for Animals’, Academia.edu, p. 9, published in: R. Garner & S. O’Sullivan (eds.), The Political Turn in Animal Ethics, London: Rawmann and Littlefield 2016. 313 From a utilitarian and deontological perspective, animal slaughter as such is not the problem. Rather, the conditions under which animals are slaughtered and the way the intensive slaughter industry operates makes it impossible to prevent suffering and animal welfare violations. Membership does question the purposeless slaughter of so called “commercially useless” animals, such as male chicks. 314 In comparison to human labour, animal production is also part of the agricultural economy. Moreover, like employees, animals so generate a certain value for the given undertaking. 315 Notwithstanding that this requires additional legal research, ‘animal labour conditions’ could, for instance, include safety requirements, such as a mandatory sprinkling installation system to prevent stable burns, stress reduction policies or a prohibition of animal slaughter on the basis of non-economic viability. 316 Article 8 Charter of Fundamental Rights of the European Union (‘CFR’) in conjunction with Article 7 CFR; Article 1(1) General Data Protection Regulation 2016/679 (‘GDPR’). 317 Keeping animals in artificial conditions for exploitation requires society’ acceptance that their agricultural system comes with a price in order to establish an animal-based agricultural policy, see: S. McMullen, Animals and the Economy, London: Palgrave Macmillan UK (The Palgrave Macmillan Animal Ethics Series) 2016, p. 189-190. 318 Animal interest-based farming should thereby observer the findings within animal welfare science. 319 C. Soto Golcher, B. Arts & I.J. Visseren-Hamakers, ‘Seeing the forest, missing the field: Forest and agriculture in global climate change policy’, Land Use Policy (77) 2018, p. 637; J. Poore & T. Nemecek, ‘Reducing food’s environmental impacts through producers and consumers’, Science (36) 2018-6392; M. Springman et al., ‘Options for keeping the food system within environmental limits’, Nature (562) 2018, 519-523; ‘Vleesconsumptie en klimaatbeleid’, Planbureau voor de Leefomgeving: Bilthoven 2008, p. 5; for more on animal husbandry and climate change, see: IPCC, 2018: ‘Summary for Policymakers’, in: V. Masson-Delmotte et al. (eds.), Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global

Dutch examples of interest-based farming include cow-following dairy farm robots that let cows decide when they wanted to be milked and interest-based chicken farming based on scientific insights. 320 An example from other countries concerns the practice of silvopasture.321

Interest-based farming thereby benefits both animal welfare and the economy as it reduces the scale of production.322 It also provides a more sustainable business model for farmers in the long term, given that the current system supports overproduction. 323 This results in more supply of animal products than demand, which, combined with low price elasticity and the ‘the commodity-trap’, results in lower margins.324

Arguably, consumers could contribute to a higher level of animal welfare through the means of their buying power. However, research indicates that consumers are mainly price-driven and suffer from the ‘meat-paradox’.325 This questions whether the market alone can protect animal welfare.

greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, Geneva: World Meteorological Organization 2018; D. Marinova & D. Bogueva, ‘Planetary health and reduction in meat consumption’, Sustainable Earth (2) 2019; S.L. Lewis & M.A. Maslin, ‘Defining the Anthropocene’, Nature (519) 2015, 172-177; J. Rockström et al., ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity,’ Ecology and Society (14) Article 32, 2009; P.J. Crutzen, ‘Geology of Mankind’, Nature (415) 2002, p. 23. 320 The introduction of dairy farm robots enabled cows to decide when they want to be milked. When farmers saw that their cattle still was not happy they let the robot go outside with the cows, which decreased violent cattle behaviour, see: C. Driessen & L.F.M. Heutinck, ‘Cows desiring to be milked? Milking robots and the co-evolution of ethics and technology on Dutch dairy farms’, Agriculture and Human Values (32) 2015-1, p. 3-20; V. van der Boon, ‘Loopt hier de blijste kip ter wereld?’, Financieel Dagblad 10 January 2020; ‘Is dit de kippenstal van de toekomst?’, Omroep Gelderland 10 January 2020. 321 J. Vidal, ’Putting pigs in the shade: the radical farming system banking on trees’, The Guardian 13 July 2019; S. Jose & J. Dollinger, ‘Silvopasture: a sustainable livestock production system’, Agroforestry Systems (93) 2019, p. 1-9; G.J. Prent et al., ‘Lamb performance in hardwood silvopastures, II: animal behavior in summer’, Translational Animal Science (4) 2020-1, p. 363-375. 322 Lower pig density, for instance, benefits both the welfare of piglets and production, see: S. van Beirendonck, L. Paepen, A. Bulens, J. van Thielen & B. Driessen, ‘The effect of pen density on piglet welfare and growth’, International conference on pig welfare: Improving Pig Welfare - what are the ways forward? 2015 (Copenhagen), p. 78; M. Fels, F. Lüthje, A. Faux-Nightingale & N. Kemper, ‘Use of space and behavior of weaned piglets kept in enriched two-level housing system’, Journal of Applied Animal Welfare Science 2018, p. 1-2; see also: O. Johansson-Stenman, ‘Animal Welfare and Social Decisions: Is It Time to Take Bentham Seriously?’, Ecological Economics (145) 2018, p. 90-103; M.S. Dawkins, ‘Animal welfare and efficient farming: is conflict inevitable?’ Animal Production Science (57) 2016-2, p. 201-208. 323 Lesser production in order to increase animal welfare shifts the product’s distinctiveness from price to quality. Switzerland, for instance, provides a high level of animal welfare and high quality products due to strict animal welfare rules and comprehensive financial incentive program, see: C.S. Vogeler, ‘Farm Animal Welfare Policy in Comparative Perspective: Determinants of Cross-national Differences in Austria, Germany, and Switzerland’, European Policy Analysis (3) 2017, 40-41; V. van der Boon, ‘Nederlandse boeren slachtoffer van eigen succes’, Financieel Dagblad 16 april 2019. 324 V. van der Boon, ‘Nederlandse boeren slachtoffer van eigen succes’, Financieel Dagblad 16 april 2019. 325 D-G Health and Food Safety & DG for Communication (at request by the European Commission), Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016, p. 5, 15; D. M. Broom & D-G for Internal Policies (at request by the European Parliament), Animal Welfare in the European Union, Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 9, 39; S. Vetter, L. Vasa & L. Ózsvári, ‘Economic

Of course, investing in animal welfare comes with a price in the short term, though, it does not have to lead to lower revenues in the long term.326 In order to provide an equal playing field and avoid allocation, a harmonized approach is required.327 Additionally, the CAP and agricultural subsidies should no longer focus on increasing production based on the number of hectares but aim at promoting interest-based animal husbandry.328

Finally, it should be observed that there is a political ambition to enhance farm animal welfare. 329 This is supported by the majority among EU citizens.330 Hence, the Commission proposed to integrate animal welfare as one of the CAP’s objectives.331

Aspects of Animal Welfare’, Acta Polytechnica Hungarica (11) 2014, p. 126; The European Union Strategy for the Protection and Welfare of Animals 2012-2015, COM(2012)6 final, p. 5. 326 The extra cost are estimated at 2% of the overall value. New compatible technologies, however, boost productivity and prevent losses due to unfavourable conditions. Research also indicates a correlation between good management skills regarding animal welfare and a higher economic performance. See: The European Union Strategy for the Protection and Welfare of Animals 2012- 2015, COM(2012)6 final, p. 4; A. Henningsen et al., ‘The Relationship between Animal Welfare and Economic Performance at Farm Level: A Quantitative Study of Danish Pig Producers’, Journal of Agricultural Economics (69) 2018-1, p. 142-162; S. Vetter, L. Vasa & L. Ózsvári, ‘Economic Aspects of Animal Welfare’, Acta Polytechnica Hungarica (11) 2014, p. 119, 127-128; Animal Welfare in Finland | a national report on animal welfare (trans. T. Saloniemi), Finnish Centre for Animal Welfare 2013, p. 23, 38; Economics and Farm Animal Welfare, London: Farm Animal Welfare Committee 2011, p. 4, 16-20; Final Report: Evaluation of the EU Policy on Animal Welfare & Possible Options for the Future (report by: GHK & ADAS UK), London 2010, p. 5. 327 The Danish ban on cages in the egg production in the 1950’s, for instance, resulted in a loss of market share and was too costly, while the harmonized EU ban of 2012 was not, see: T. Christensen et al, ‘How to improve farm animal welfare? Four main approaches viewed from an economic perspective’, Animal Welfare (28) 2019, p. 99. 328 European Court of Auditors, Animal welfare in the EU: Closing the gap between ambitious goals and practical implementation, Special Report (31) 2018, p. 22, 29-35, 48-50; D. Dupont-Nivet & P. Kalkman, ‘Heya! Kilo’s knallen!’, Groene Amsterdammer (41) 2018; see also: T. Christensen, S. Denver & P. Sandoe, ‘How to improve farm animal welfare? Four main approaches viewed from an economic perspective’, Animal Welfare (28) 2019, p. 98-99. 329 Council Meeting 11255/19, Agriculture and Fisheries, 15 July 2019, p. 8; European Parliament Resolution 14 February 2019 on the implementation of Council Regulation (EC) No 1/2005 on the protection of animals during transport within and outside the EU, 2018/2110 (INI); European Parliament Resolution 25 October 2018 on Animal welfare, antimicrobial use and the environmental impact of industrial broiler farming, 2018/2858 (RSP); European Parliament resolution 14 March 2017 on minimum standards for the protection of farm rabbits 2016/2077(INI). 330 94% of the EU citizens recognizes the importance of animal welfare and 84% of the EU citizens favours EU legislation on this subject, see: EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2017- 2030, DG Agricultural and Rural Development, European Commission, 2017, p. 43; D.M. Broom, Animal Welfare in the European Union, DG for Internal Policies (at request by the European Parliament), Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 9; DG Health and Food Safety & D-G for Communication (at request by the European Commission), Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016, p. 5, 12, 15. 331 In addition, CAP Strategic Plans by Member States are required to include a system of conditionality, which imposes administrative penalties on non-complying beneficiaries of direct CAP-payments. See: rec. 17, 21, 23, 38 & Articles 6(1)(i), 11(1)(c), 28(5)(b) & 65(5)(b) 2018/0216 (COD), Proposal for a Regulation establishing rules on support for strategic plans to be drawn up by Member States under the Common agricultural policy (CAP Strategic Plans), COM(2018)392 final.

4.5.2 Competence and legal basis Under the principle of conferral, the EU can only adopt farm animal welfare measures in case this competence is conferred to them by the Treaties. 332 These measures also need to comply with the principles of proportionality and subsidiarity. 333 This paragraph argues that the legal competence to enact farm animal welfare measures can be derived from the CAP in conjunction with Article 13 TFEU.

Now the Treaties do not confer animal welfare as a general competence. 334 As a regulatory principle, Article 13 TFEU only legitimizes animal welfare measures within certain areas. Therefore, the regulatory competence to enact animal welfare measures is derived from other conferred competencies that provide the correct legal basis.335 With regard to farm animal welfare, the regulatory competence is derived from the CAP as it constitutes the only correct legal basis. 336 Other animal welfare measures can be derived from the internal market objective.337 In general, these measures concern the banning of non-agrarian products that constitute an unacceptably high risk to animal welfare violations within the public opinion. This includes, for instance, animal-tested cosmetics, seal products, or products made from cat and dog fur.338

Furthermore, the conferred competencies can be divided into three levels: an exclusive, shared, or supporting coordinating competence.339 Since ‘agriculture’ is categorized as a shared competence, the derived regulatory competence regarding farm animal welfare is also shared between the EU and Member States.340

332 Article 3(6) TEU, Article 4(1) TEU. 333 Article 5(2) TEU; Article 5(1), (3) & (4) TEU; Article 2 (2) TFEU; D. Chalmers, G. Davies & G. Monti , European Union Law, Cambridge: Cambridge University Press 2016, p. 209-210. 334 The EU has therefore no competence to legislate on companion animals, see: ‘Legislative aspects of farm animal welfare’, European Commission, https://ec.europa.eu (search on: Animal welfare), Article 3(6) TEU. 335 In principle, there can be only one legal basis. In case of different, yet interlinked objectives, only the identified main objective provides the single legal basis as the other objectives are regarded to be “secondary”. Several legal bases are therefore “exceptional”. It applies only to inseparably linked objectives that are not incidental to each other. See: CJEU 20 November 2018, C-626/15 & C-659/16, ECLI:EU:C:2018:925 (European Commission/Council), paras. 77-78; CJEU 24 June 2014, C-658/11, ECLI:EU:C:2014:2025 (European Parliament/European Commission), para. 43; CJEU 11 September 2003, C-211/01, ECLI:EU:C:2003:452 (Commission/Council), paras. 39-40, 48-49. 336 As integral part of the CAP, animal welfare is inseparably linked and incidental to the CAP. The main objective of animal welfare measures thereby entails the protection of the functioning of the CAP. See: Article 13 TFEU in conjunction with Article 39 TFEU & CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 19- 21, 24, 26-27 (under reference to Articles 38(2), 39 EEC-Treaty & Article 43(1) TFEU (or Article 37 TEC)); R. Schütze, European Union Law, Oxford: Oxford University Press 2018, p. 579; B. Driessen, ‘Fundamental Animal Rights in European Law’, European Public Law (23) 2017/3, p. 553. 337 Article 13 TFEU in conjunction with Article 114 TFEU. 338 See, for instance: rec 1. Reg. 1523/2007 – “In the perception of EU citizens, cats and dogs are considered to be pet animals” – together with Articles 1, 3 Reg. 1523/2007; see also: Article 18 (1) (b) Reg. 1223/2009 & para. 8 Annex I Reg. 1223/2009; rec. 38-42, 50 Reg. 1223/2009; CJEU 21 September 2016, C-592/14, ECLI:EU:C:2016:703 (EFfCI/UK), paras. 32, 34-36; rec. 1, 4 & Article 3 Reg. 1007/2009 on the trade in seal products. 339 Article 5(2), (3) TEU; Article 3 TFEU; Article 4 TFEU; 6 TFEU; D. Chalmers, G. Davies & G. Monti , European Union Law, Cambridge: Cambridge University Press 2016, p. 293-295. 340 Article 4(2)(d) TFEU read in conjunction with Article 13 TFEU and Article 39 TFEU; according to Article 2(2) TFEU, Member States can only exercise this competence to the extent that the EU has not exercised, or ceased to exercise, its competence.

Now, a correct legal basis alone is not enough to enact measures as certain legislative requirements need to be fulfilled.341 The proposed measures have to be compatible with the principles of proportionality and subsidiarity, which will be discussed in the following subparagraphs.

4.5.2.1 Principle of subsidiarity The principle of subsidiarity provides that the EU can only take measures if the proposed action cannot be sufficiently achieved by the Member States alone.342 Specifically, the principle examines to what extent the objectives of a measure represent the general interest of the EU and whether they could be better achieved at the EU-level, given its scale or effects.343 According to the CJEU, the general objectives of EU law can be better be achieved on the EU level.344

341 To start with, there should be a political ambition. Next, the legislative measures should pursue one of the Treaty objectives and also contribute to its achievement. Subsequently, the problem must affect the common market and thereby entail a ‘likely’ obstacle of trade or constitute an ‘appreciable’ distortion of competition. Hence, the proposed measure should be aimed at ‘dissolving disparities between national laws’, ‘maintaining a level playfield’, or ‘preventing distortion of competition’. In addition, the proposed measure must ‘actually contribute’ to achieving these objectives, on the pain of annulment. See: Preamble Council Dir. 77/489/EEC; Preamble Council Directive 74/577/EEC; rec. 6 Dir. 2007/43/EC; rec. 7 Dir. 98/58/EC; rec. 2 Council Reg. 1/2005; Explanatory memorandum, Proposal for a Council Regulation on the protection of animals during transport (COM(89)322 final); Completing the Internal Market: White Paper from the Commission to the European Council (COM1985/310/final), para. 68; CJEU 10 December 2002, C-491/01, ECLI:EU:C:2002:741 (British American Tobacco), para. 60; according to the CJEU, farm animal welfare provisions are conditions and methods of production and thus contribute to achieving the objectives of the CAP, see: CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (United Kingdom/Council), paras. 15, 17, 19, 23-24; as farm animal welfare issues affect productivity and competitiveness, it also affects the common market, see: rec. 4-6 Council Dir. 2008/119 – “a source of revenue for the part of the agricultural population”; see also: rec. 7, 8 Dir. 98/58; rec. 6 Dir. 1999/74; rec. 2 Reg. 1/2005; rec. 6 2007/43; rec. 5-7 Dir. 2008/120; rec. 3, 5, 10 Reg. 1099/2009; the European legislator thereby also observed consumer attitudes towards agricultural products in relationship with animal welfare, see: rec. 3 Reg. 1099/2009; rec. 4 Reg. 1099/2009; rec. 2, 7 Council Dir. 1999/74/EC; rec. 4 Council Dir. 2007/43/EC; The European Union Strategy for the Protection and Welfare of Animals 2012- 2015, COM(2012)6 Final, p. 4; Commission staff working document on a Community Action Plan on the Protection and Welfare of Animals 2006-2010, SEC(2006)65, para. 2; DG Agricultural and Rural Development, EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2017-2030, European Commission publication: 2017, p. 43; D-G Health and Food Safety, Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), DG for Communication (at request by the European Commission), 2016, p. 12; European Court of Auditors, Animal Welfare in the EU (Background paper), January 2018, p. 3-4; see by analogy: the EU-ban on seal products, which was created “in response to public moral concerns about the animal welfare aspects”, see: rec. 1 Reg. 215/1775; see furthermore: Proposal for a Directive on the protection of animals used for scientific purposes, Explanatory Memorandum, COM(2008)543 Final. 342 Subsidiarity only applies to non-exclusive competence. It therefore protects the sovereignty, or identity, of Member States. See: Article 5(3) TEU; Articles, 1, 5 Protocol (No 2) on the application of the principles of subsidiarity and proportionality; CJEU 9 October 2001, C-377/98, ECLI:EU:C:2001:523 (Netherlands/Parliament & Council), para. 31; CJEU 4 May 2016, C-547/14, ECLI:EU:C:2016:325 (PMI, BTA/UK), paras. 215, 218; D. Chalmers, G. Davies & G. Monti, European Union Law, Cambridge: Cambridge University Press 2016, p. 393-395. 343 This includes the text of the proposed measure, the context and individual circumstances or interest of the proposed measure, see: D. Chalmers, G. Davies & G. Monti, European Union Law, Cambridge: Cambridge University Press 2016, p. 395; Article 5 Protocol (No 2) on the application of the principles of subsidiarity and proportionality; CJEU 4 May 2016, C-547/14, ECLI:EU:C:2016:325 (PMI, BTA/UK), paras. 215, 218, 220-223, 225-227; CJEU 18 June 2015, C-508/13, ECLI:EU:C:2015:403 (Estonia/Parliament and Council), paras. 44, 54, 61. 344 This includes the internal market and the CAP, and their interdepended objectives, such as: human health and the internal market; CJEU 9 October 2001, C-377/98, ECLI:EU:C:2001:523 (Netherlands/Parliament & Council), paras.

The subsidiary of a measure is observed beforehand by the EU institutions and can be assessed by Member States later on.345 For example, when the EP called for welfare legislation for rabbit farming, the Commission dismissed his initiative due to its incompatibility with the principles of proportionality and subsidiarity.346

Animal welfare is an interdepended objective of the CAP. Both are within the general interest of the EU.347 However, the example of farm rabbit welfare indicates that measures can be incompatible with the principle in case of adequate harmonisation. Moreover, the Commission requires sufficient data that indicate severe animal welfare violations due to non-compliance with Council Dir. 98/58. Finally, the argument concerning the scale of rabbit farming implies that mere disparities between welfare standards do not affect the common market seriously enough to justify EU-intervention.

Thus, farm animal welfare measures are in principle compatible with the subsidiarity principle when they dissolve disparities between welfare standards that affect the common market seriously. 348 Furthermore, the recasting of legislation is also deemed compatible with the principle of subsidiarity in the case of dissatisfactory harmonisation results.349

4.5.2.2 Principle of proportionality The principle of proportionality entails that the acts of the EU shall be appropriate and not go beyond what is necessary to achieve the objectives as laid down in the Treaties. 350

30, 32-33; CJEU 18 June 2015, C-508/13, ECLI:EU:C:2015:403 (Estonia/Parliament and Council ), paras. 46-48; CJEU 4 May 2016, C-547/14, ECLI:EU:C:2016:325 (PMI, BTA/UK), paras. 215, 218, 219-222, 223-224 in conjunction with paras. 115-116; CJEU 10 December 2002, C-491/01, ECLI:EU:C:2002:741 (British American Tobacco/UK), paras. 179- 183; G. Davies, ‘Subsidiarity: the Wrong Idea, in the Wrong Place, at the Wrong Time’, Common Market Law Review (43) 2006-1, 63, 72-74. 345 Member States can thereby provide a reasoned opinion in case of non-compliance; see: Article 5(3) TEU; Articles 1-7 Protocol (No 2) on the application of the principles of subsidiarity and proportionality. 346 In conjunction with Article 3(1) Council Dir. 98/58.Commissioner Jouravá held that: “Member States were better placed to enhance the welfare of farm rabbits, because rabbit production was mainly concentrated in a few Member States and therefore the Commission does not consider it appropriate to propose an initiative on the welfare of farm rabbits.”, see: CRE 13/03/2017 – 16, Vera Jourová (debate at: 21:48:27 – 21:52:01); European Commission, Follow- up to the European Parliament resolution of 14 March 2017 on minimum standards for the protection of farm rabbits, SP(2017)390; with regard to the legal initiative of the EP see: European Parliament, resolution 14 March 2017 on minimum standards for the protection of farm rabbits 2016/2077(INI), paras. Z, 34 (third bullet); S. Eck, ‘Report on minimum standards for the protection of farm rabbits (2016/2077(INI),’ Committee on Agriculture and Rural Development (A8-0011/2017), Explanatory Statement. 347 GCEU 25 April 2013, T-526/10, ECLI:EU:T:2013:215 (Commission/Inuit Tapiriit Kanatami II), paras. 40-44, 52, 64, 73 83-84; CJEU 3 September 2015, C-398/13 P, ECLI:EU:C:2015:535 (Commission/Inuit Tapiriit Kanatami II), paras. 26-27, 31. 348 Explanatory Memorandum, Proposal for a Council Regulation on the protection of animals at the time of killing, COM(2008)553 final, p. 2, 8; Preamble Council Dir. 77/489/EEC; Preamble Council Directive 74/577/EEC; rec. 6 Dir. 2007/43/EC; rec. 7 Dir. 98/58/EC; rec. 2 Council Reg. 1/2005. 349 In particular when it concerns lacking enforcement mechanisms, see for instance: Explanatory Memorandum, Proposal for a Council Regulation on the protection of animals at the time of killing, COM(2008)553 final, p. 2, 8; see by analogy the improvement of data protection enforcement: Explanatory Memorandum, Proposal for a General Data Protection Regulation, COM(2012)11 final, p. 2, 5. 350 According to the literature-based tripartite proportionality test, a measure must be: i) appropriate to achieve its legitimate aim, ii) the least onerous on in case of more appropriate measures and iii) not constitute disproportionate disadvantages in comparison to pursued aim, see: Article 5(4) TEU; Articles 1 & 5 Protocol (No. 2) on the application

It assesses the quality of a measure in light of the desired objective and balances the effects of the measure against the infringement of other interests.351 In practice, the CJEU assesses proportionality with different levels of intensity and does not conduct the tripartite test strictly.352 In case the EU legislator enjoys discretionary powers, such as the CAP, the CJEU’s review is restricted and assesses only whether the measure is ‘manifestly inappropriate’. 353 However, the CJEU is obliged to assess whether the EU legislator fully observed the animal welfare requirements.354 In Schaible, the CJEU assessed the necessity of a given measure by reviewing the assessments’ observance on the adverse animal welfare effects.355 They thereby balanced the adverse animal welfare effects against the positive welfare effects.356 In Jippes, the CJEU ruled that there was no manifest error as the Council assessed the advantages and drawbacks of a non-vaccination policy, which corresponded with studies and best practices. 357 Thus, animal welfare measures are generally proportionate in case the European legislator conducted an assessment, which is supported by scientific evidence. Proportionality can also be observed by including derogations or delegate some regulatory aspects to Member States or third parties.358

of the principles of subsidiarity and proportionality; CJEU 16 June 2015, C-62/14, ECLI:EU:C:2015:400 (Gauweiler), para. 67; CJEU 25 July 2018, C-239/17, ECLI:EU:C:2018:597 (Teglgaard & Fløjstrupgård/Fødevareministeriets Klagecenter), para.49; CJEU 13 November 1990, C-331/88, ECLI:EU:C:1990:391 (Fedesa/UK), para 13; P.P. Craig & G. de Búrca, EU Law: Text, Cases, and Materials, Oxford: Oxford University Press 2015, p. 551; R. Schütze, An Introduction to European Law, Cambridge: Cambridge University Press 2015, p. 204-205. 351 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), para. 81. 352 Measures of EU institutions are reviewed less intense, whereas national measures are reviewed intensively because they usually entail a restriction of the fundamental EU freedoms, see: T.-I. Harbo, ‘The Function of the Proportionality Principle in EU Law’, European Law Journal (16), 2010-2, p. 172, 179-185; D. Chalmers, G. Davies & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 400-401; CJEU 13 November 1990, C-331/88, ECLI:EU:C:1990:391 (Fedesa), para. 16. 353 This limited review expresses the political responsibilities of the EU legislator to conduct policy choices and value judgements; CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), paras. 80, 82-83; CJEU 17 May 2018, T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta / Commission), para. 506; CJEU 7 September 2006, C-310/04 ECLI:EU:C:2006:521 (Spain/Council), paras. 96, 98; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2006:118 (Viamex/Hauptzollamt Hamburg-Jonas), paras. 34-36; CJEU 13 November 1990, C-331/88, ECLI:EU:C:1990:391 (Fedesa), para. 14; T. Tridimas, ‘The Principle of Proportionality’, in: R. Schütze & T. Tridimas, Oxford Principles of European Union Law: Vol. 1: The European Union Legal Order, Oxford: Oxford University Press 2018, p. 251-252; the EU legislature thereby needs to produce clearly and unequivocally the observed basic facts. See: CJEU 7 September 2006, C-310/04 ECLI:EU:C:2006:521 (Spain/Council), paras. 111, 121-123, 133-135; CJEU 13 November 1990, C-331/88, ECLI:EU:C:1990:391 (Fedesa), para. 14; CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes), paras. 80, 82, 95, 100; GCEU 16 September 2013, T-333/10, ECLI:EU:T:2013:451 (ATC/Commission), para. 99, 103; R. Schütze, An Introduction to European Law, Cambridge: Cambridge University Press 2015, p. 204-205; in certain cases, however, the CJEU only assesses whether the regulation ensures the achievement of its objective, see: CJEU 25 July 2018, C-239/17, ECLI:EU:C:2018:597 (Teglgaard & Fløjstrupgård/Fødevareministeriets Klagecenter) , paras. 48, 50-51. 354 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), paras. 79, 85. 355 CJEU 17 October 2013, C-101/12, ECLI:EU:C:2013:661 (Schaible), paras. 42, 46. 356 CJEU 17 October 2013, C-101/12, ECLI:EU:C:2013:661 (Schaible), paras. 69-74. 357 The CJEU referred to studies, which indicated that general preventive vaccination policies have more drawbacks then a non-vaccination policy and cannot guarantee the reduction of future outbreaks. Foot-and-mouth disease cannot be eradicated preventively as it can still occur in vaccinated herds. It is therefore impossible to distinguish between vaccinated and infected animals, see: CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), paras. 80-83, 89-93, 95, 122. 358 Articles 18-21 Inter-institutional Agreement on Better Law-Making (2003/C 321/01).

Animal welfare measures on the EU level will be regarded disproportionate in case of small scale exploitation and private consumption. 359 Presumably, their effects on the common market are insignificant to justify a measure on the EU-level. Measures are furthermore disproportionate when they govern areas outside the scope of the legal basis or violate fundamental rights.360

4.5.3 Adopting a General Farm Animal Welfare Regulation To enhance farm animal welfare protection effectively, Dir. 98/58 should be recast for a general farm animal welfare regulation. It should apply to both the EU, Member States and their competent authorities, and business operators or other stakeholders. The regulation should thereby provide interest-based provisions that observe the four animal welfare objectives integrally. 361 To establish an interest-based framework, the regulation could introduce the animals’ ‘in-its-nature-behaviour’ as a general starting point by incorporating Gygax’s & Hillmann’s concept of ‘naturalness’. 362 Furthermore, the regulation should be updated by governing genetic selection to improve animal welfare, phasing out certain harmful genetic features, prohibiting instant slaughter due to non-economic viability, and observing climate change issues.363

359 The Slaughter Regulation, for example, does not apply to the slaughter of poultry, rabbits and hares for private consumption and excludes reptiles and amphibians, see: rec. 17, 19 Council Reg. 1099/2009; Article 2(c) Council Reg. 1099/2009. 360 Farm animal welfare provisions, for instance, do not govern the rules for hunting. Article 1(3)(a)(ii) Council Reg. 1099/2009; rec. 14 -Council Reg. 1099/2009; with regard to persevering the freedom of religion, see: Article 4(4) Council Reg. 1099/2009; rec. 15, 18 Council Reg. 1099/2009. 361 If these four objectives are not assessed integrally, their interaction could result into to conflicts with detrimental animal welfare effects. For example, beak trimming of laying hens prevents injuries pecking behaviour, but is painful and is considered disturbing in the public opinion. Free-range poultry keeping provides elements of natural behaviour, but also increases the risks of cannibalism. Thus, this problem requires a multi-disciplinary approach, including: an enriched free range environment with high-fibre diets and suitable litter in order to stimulate feeding and foraging behaviour, genetic selection and good management skills, see: T.B. Rodenburg et al., ‘The prevention and control of feather pecking in laying hens: identifying the underlying principles’, World’s Journal of Poultry Science (69) 2013; I.J.H. Duncan, Animal Welfare Issues in the Poultry Industry: Is There a Lesson to Be Learned?, Journal of Applied Animal Welfare Science (4) 2001-3; R.E. Nordquist et al., ‘Mutilating Procedures, Management Practices, and Housing Conditions That May Affect the Welfare of Farm Animals: Implications for Welfare Research’, Animals (Basil) (7) 2017; P. Koene, ‘Cannibalism in extensive poultry keeping: interfacing genetics and welfare’, Proceedings of the World Congress on Genetics Applied to Livestock Production (27) 1998, p. 393-400. 362 Gygax & Hillmann define ‘in-its-nature’ behaviour as proximate behaviour control on the basis of the animal’s wants and ability to reach their goal, given their biology, control of coping mechanism and interaction to the environment, see: L. Gygax & E. Hillmann, ‘“Naturalness” and Its Relation to Animal Welfare from an Ethological Perspective’, Agriculture (8) 2018; also: F. Ohl & F.J. Van der Staay, ‘Animal welfare: At the interface between science and society,‘ The Veterinary Journal (192) 2012, p. 17. 363 In addition, Näsström proposes to introduce a tiered labelling system or a Community logo. The effectiveness of labelling, however, is debated within literature and both systems face some problems. A tired labelling system provides in detail the differences between animal welfare initiatives and thus stimulates improvement, but cannot communicate this effectively to consumers. Whereas a logo provides an easier and clearer communication, but lacks the detail of a tiered labelling system. Thus, a labelling system should be considered, but requires more legal, economic and behavioural economic research. See: M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 273-280, 291-292, 301.

However, the European legislator has to establish the desired level of animal welfare and quantify interest-based benchmarks.364 Other thoughts on a general animal welfare framework will be discussed briefly in the following subparagraphs.

4.5.3.1 Incorporating the precautionary principle The regulation should integrate the precautionary principle to extend its application towards animal welfare protection.365 This would oblige the EU and Member States to prevent the materialization of animal welfare risks in case there is a likelihood that these risks will materialize. 366 By analogy with environmental protection and animal health, the precautionary principle justifies restrictive measures that precede over economic interest and can also be invoked by individuals.367

4.5.3.2 Establishing a duty of care To oblige Member States, business operators, and other stakeholders to protect animal welfare actively, the regulation should impose a duty of care on them. A duty of care does not grant rights but imposes an obligation on legal subjects to refrain from or conduct certain activities. 368 Under certain circumstances, this obligation can be enforced within courts.

With regard to the European legislator, the first step is to acknowledge animals as members of the CAP. Secondly, the duty of care should integrate the precautionary principle to oblige the EU legislator to fully take animal welfare into account. Thirdly, the duty of care should also entail a duty to enhance and to improve. Enhancement promotes proactive policymaking on farm animal welfare and animal welfare initiatives in ways that have no natural, legal, or historical precedent.369 Improvement entails a proactive reflection and adjustment of current existing policies, provisions, and initiatives.

364 Thus, there needs to be a broader debate within the EU about which kind of animal husbandry and farming practices are acceptable. 365 F.L.B. Meijboom & B. Bovenkerk, ‘Fish Welfare: Challenge for Science and Ethics—Why Fish Makes the Difference’, Journal of Agricultural and Environmental Ethics (26), 2013-1, p. 1-6. 366 GCEU 17 May 2018, T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta / Commission), para. 107, 109- 110, 496-500; CJEU 17 April 2018, C-441/17, EU:C:2018:255 (Commission/Poland (Białowieża Forest), paras. 112, 118, 158, 171; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 38, 41; CJEU 10 September 2009, C-100/08, ECLI:EU:C:2009:537 (Commission/Belgium), paras. 101-102; Commission Communication from the Commission on the precautionary principle (COM/2000/1 Final), para. 3; C. Barnhard & S. Peers (ed.), European Union Law, Oxford: Oxford University Press 2017, p. 667; see also the definition of the precautionary principle within Principle 15 Rio Declaration 1992. 367 Article 12 Reg. 258/97 in conjunction with CJEU 1 April 2004, C-236/01, ECLI:EU:C:2004:212 (Monsanto Agricoltura Italia), paras. 110--114, 133; Article 11 (1) Dir. 91/414/EEC in conjunction with GCEU 12 April 2013, T-31/07, ECLI:EU:T:2013:167 (De Pont de Nemours France/Commission), paras. 133, 214, 239, 247; rec. 8 & Article 1(3) Reg. 1107/2009 in conjunction with GCEU 17 May 2018 T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta / Commission), paras. 105-107, 109-110, 117, 119-120, 124, 129-130, 324-325, 496, 499-500; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 38, 41. 368 For example, the environment has no rights. However, EU law has imposed a duty of care on the EU and the Member States to protect the environment through the means of the precautionary principle, see: Article 191(2) TFEU; Communication from the Commission on the precautionary principle (COM(2000)1 Final); CJEU 7 November 2018, C-293/17 & C-294/17, ECLI:EU:C:2018:882 (Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu & Stichting Werkgroep Behoud de Peel/Provincial Governments of Gelderland & Limburg) paras. 82, 93, 100; CJEU 17 April 2018, C-441/17, EU:C:2018:255 (Commission/Poland (Białowieża Forest), para. 112. 369 For instance, this includes genetic modifying species to correct harmful physical conditions or make them more resistant against diseases, stimulating cultured meat to reduce livestock, and providing technical innovations to

Furthermore, the regulation should, besides certain specific obligations, impose the principle of accountability on business operators and other stakeholders. This makes them responsible for the protection of animal welfare and obliges them to objectively demonstrate compliance.370

Also, the regulation should incorporate the notion of interest-based animal welfare protection by design and by default.371 Of course, this requires the European legislator to quantify certain benchmarks and to incorporate ‘naturalness’ as a basic concept of ‘good’ animal welfare.

4.5.3.3 Ensuring effective enforcement By adopting a general animal welfare regulation, the EU could ensure an effective enforcement mechanism. 372 First, a regulation imposes direct obligations on both the EU, Member States, and business operators, and other stakeholders.373 In contrast to a directive, regulations enable individuals to rely upon its provisions within horizontal relations and can even impose obligations of a directive on individuals through expressed referencing. 374 Secondly, regulations also enable judicial review. This allows the CJEU to assess the effectiveness and necessity of a measure in respect to animal welfare. Regulations also allow individuals to order competent authorities to pursue enforcement activities against business operators, through the means of domestic administrative proceedings.

protect animals outside against infectious diseases or develop animal welfare management tools. See by analogy Somsen on environmental enhancement in: H. Somsen, ‘Temporal Challenges: The Retrospectivity of EU Environmental Law’, in: L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene, Oxford: Hart Publishing 2017p. 370; H. Somsen, ‘Human Rights Duties to Preserve, Protect, and Improve the Environment’, in: R. Brownsword,E. Scotford & K. Yeung, The Oxford Handbook of Law, Regulation and Technology, Oxford: Oxford University Press 2017, p. 391-394. 370 See by analogy the application of the accountability principle by the GDPR. It entails that the controller is responsible for ensuring compliance with the GDPR and thereby imposes an proactive obligation to demonstrate this compliance objectively, see: rec.’s, 39, 74 & Articles 5(2), 24, 28(3)(h) GDPR; J. Lindqvist, ‘New challenges to personal data processing agreements: is the GDPR fit to deal with contract, accountability and liability in a world of the Internet of Things?’, International Journal of Law and Information Technology (26) 2018, p. 58; P. de Hert, ‘Accountability and System Responsibility: New Concepts in Data Protection Law and Human Rights Law’, in: D. Guagnin et al. (eds.), Managing Privacy through Accountability, London: Palgrave Macmillan UK 2012, p. 195, 201- 202, 219, 221-222. 371 ‘By design’ means that animal-interest, defined by ‘naturalness’ and the four animal welfare objectives within integral perspective, should be incorporated from the start of the business model within the entire process. ‘By default’ entails that strictest degree of animal welfare protection should be observed by default, which means that certain benchmarks or obligations cannot be violated. See by analogy, rec. 78 and Article 25 GDPR. 372 Violations of EU law by Member States are resolved through infringement proceedings by the Commission. Individuals can address violations of EU law through preliminary referencing or by seek compensation based on state liability. See: Articles 258(2), 260(2), 259(1), (4) TFEU; Article 267 TFEU. 373 Article 288 TFEU; CJEU 14 July 1994, C-91/92, ECLI:EU:C:1994:292 (Faccini Dori), para 24; CJEU 6 November 2018, C-569/16 & C-570/16, ECLI:EU:C:2018:871 (Bauer & BroBroßonn), para. 76. 374 Individuals can only rely on a directive in vertical relations in case it is not, or incorrectly, transposed by Member States and grants individuals unconditional, sufficiently, clear and precise rights, see: CJEU 4 December 1974, C- 41/74, ECLI:EU:C:1974:133 (Van Duyn/Home Office), paras. 12-13; CJEU 19 January 1982, C-8/81, ECLI:EU:C:1982:7 (Becker/Germany), para. 25; CJEU 14 July 1994, C-91/92, ECLI:EU:C:1994:292 (Faccini Dori), para 20; CJEU 25 February 1986, C-152/84, ECLI:EU:C:1986:84 (Marshall), para. 48; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), paras. 20, 22, 24, 26, 29; CJEU 6 November 2018, C-569/16 & C-570/16, ECLI:EU:C:2018:871 (Bauer & BroBroßonn), paras. 76-77; CJEU 7 August 2018, C‑122/17, EU:C:2018:631 (Smith), paras. 42-43.

In the Netherlands, for instance, Greenpeace ordered the NVWA to pursue enforcement activities against undertakings who violated Reg. 995/2010.375 Arguably, judicial review restricts the political mandate on animal welfare protection.376 This is, however, a fallacy. Judges merely assess the compliance with animal welfare provisions, which are derived from a democratic process. Of course, the CJEU could extend the scope of a provision through teleological interpretation. Yet, this extension is restricted by the broader legal context of a provision, which has been established by the European legislator.377

Additionally, animal welfare organizations should have a stance in civil courts because animals do not have a stance in court.378 By analogy with Article 11(1)(a), (b) Dir. 2005/29, organizations with a legitimate interest could, pursuant to national law, take legal actions against animal welfare violations or request enforcement activities.379

Furthermore, the regulation should establish independent animal welfare authorities. Currently, Reg. 2017/625 and the specific animal welfare instruments require Member States to establish ‘competent authorities’. 380 In contrast, the GDPR, for instance, establishes ‘independent authorities’. 381 This independence could allow animal welfare authorities to fully observe the objective of animal welfare provisions and act within the interest of animals.382 Animal welfare authorities could, for instance, raise public awareness, provide legal advice on the impact of legislation on animal welfare, or monitor relevant developments.383 Given the cross-border nature of animal production, animal welfare authorities should independently coordinate cross-border enforcement and share information within a network. 384

375 Currently, the case is under review at the Administrative Jurisdiction Division of the Dutch Council of State. According to the A-G of the Administrative Jurisdiction Division of the Dutch Council of State, a reconsideration decision concerning the refusal of enforcing activities must observe the aim of providing an effective, proportionate and dissuasive remedy. As the Netherlands did not imposed dissuasive administrative fines, it infringes the EU principle of effectivity, see: Conclusion A-G P.J. Wattel 11 March 2020, ECLI:NL:RVS:2020:738 (Greenpeace/Ministry of Agriculture, Nature and Quality of Food), paras. 9.31, 10.5-10.6; see also: Amsterdam District Court 12 March 2019, ECLI:NL:RBAMS:2019:1942 (Greenpeace/Ministry of Agriculture, Nature and Quality of Food), paras. 16-18 in conjunction with rec. 27 & Articles 4(2), (3), 5, 19(2) Reg. 995/2010. 376 See, for instance, Vink’s critique on judicial review in respect to the separation of powers, in: J. Vink, The Open Society and Its Animals (Diss. Leiden), Leiden: University of Leiden 2019, p. 167, 241-243, 245, 248. 377 The broader legal context encompasses other applicable (higher) laws and the essence of a provision. In OABA/France, the CJEU held that Council Reg. 1099/2009 expressed to keep the animal’s suffering to “a minimum”, which imposed an obligation to conduct prior-stunning. In addition, EU primary law recognizes animals as sentient beings and requires a full protection of their welfare requirements. This legitimized the CJEU to assess which slaughter technique removed effectively “all the animal’s pain, distress and suffering”. see: Article 13 TFEU in conjunction with rec. 20 & Articles 3, 4(1) Council Reg. 1099/2009, Articles 5(h), 14(1) (b)(vii) Reg. 834/2007 and CJEU 26 February 2019, C‑497/17, ECLI:EU:C:2019:137 (OABA/France), paras. 37, 46-50. 378 This would require of course further research to determine the scope of such possibility, though, it could be restricted in case of full harmonisation or the by the scope or purpose of the measure. 379 See by analogy: Article 80 GDPR; see also: H. Kock, ‘Non-class group litigation under EU and German Law’, Duke Journal of Comparative & International Law (11) 2001-2, p. 355, 366. 380 Article 3(3) Reg. 2017/65 in conjunction with Articles 1, 2(1), 4, 5 Reg. 2017/65; with regard to animal welfare see: Article 1(2)(f) & (d) Reg. 2017/65 in conjunction with rec. 7, Articles 9(1)(a)(i) & (iv), 21, 44(2)(a), (4), 45(1)(b), 49(3), 67 Reg. 2017/65. 381 Rec.’s 117-123 & Articles 4(16), 51-59 GDPR. 382 See by analogy Articles 52(1), (2), (4), 55(1), 57(1), 58(3)(b) GDPR. 383 See by analogy Article 57(1)(b), (c), (i), GDPR. 384 By analogy with the European Competition Network, a coherent coordinated uniform protection of EU animal welfare law could have the same centralizing effect, see: A. Ortega Gonzáles, The Enforcement of EU Competition

Therefore, the legal position and task of the current EU Reference Centre for Animal Welfare need to be the same as, for instance, the European Data Protection Board.385

Finally, sanctions should be aimed at effectuating a behavioural change among the supply chain partners. This could be achieved by imposing civil liability on business operators to allow other supply chain partners to claim the damage that they suffered from EU farm animal welfare violations.386 Additionally, the names of the offending business operators and the concerning enforcement actions should be published.387 4.6 Conclusion This chapter answers the following question:

To which extent is farm animal welfare protected adequately within relevant EU law?

The protection of farm animal welfare within EU law is inconclusive and lacks a general ideological perspective on animal welfare. On the one hand, EU law provides a diverse, yet fragmented, legal framework to protect farm animal welfare. In particular, the latest legal instrument integrated more scientific insights and animal-based criteria. According to case-law, animal welfare also entails an important value of the EU. On the other hand, growing animal welfare concerns and inadequate enforcement indicate that farm animal welfare is not protected effectively. It seems that the current economic context in which animal husbandry operates precludes an ‘interest-based’ level of protection.

This inconclusiveness is demonstrated within secondary law by an outdated framework of minimum provisions with lacking enforcement and no legal incentives to ensure the highest level of animal welfare. On paper, all of the relevant legal instruments provide animal-based benchmarks and observe the four different welfare objectives, though, not always integrally. 388 Also, the choice for resource or management based requirements corresponds with the given activity and the main welfare issues of the given animal.389

Law in Cartel Cases: Seeking Effectiveness in Divergence (diss. Antwerp), Antwerp: Antwerp University 2017, p. 788- 789, 889; rec. 15 & Articles 11, 12 Council Reg. 1/2003 in conjunction with rec.’s 2, 74-75 & Articles 1(3), 4 Dir. 2019/1; see also by analogy: Articles 60-63, 68(3) GDPR. 385 See by analogy: rec. 139 & Articles 68-70 GDPR; for more one the European Union Reference Centre for Animal Welfare, see: Art. 1 Commission Implementing Reg. 2018/329 in conjunction with rec. 73 Reg. 2017/625 & Articles 95, 96 Reg. 2017/625; DG Health and Food Safety, Annex I Terms of Reference, Call for selection and designation of the first European Union Reference Centre for animal welfare, 17 October 2017 (Ref. Ares(2017)5017921); ‘European Union Reference Centre for Animal Welfare’, http://ec.europa.eu (search on: Reference Centre for Animal Welfare). 386 For example, analogical to cartel damages claims by private parties, farmers, supermarkets and wholesalers should be enabled to claim the follow-on damage they suffer from animal welfare violations by slaughter houses and transport companies. See: rec.‘s, 3, 5-6 & Articles 1, 3(1) Dir. 2014/104; A. Ortega Gonzáles, The Enforcement of EU Competition Law in Cartel Cases: Seeking Effectiveness In Divergence (diss. Antwerp), Antwerp: Antwerp University 2017, p. 6, 441, 450-451. 387 This would provide more transparency to the public and stimulate follow-on damage claims by possible harmed supply chain partners. Recent meat scandals, for instance, indicate that supply chain partners were not informed on the infringement and thus unable to cancel deliveries from the slaughter houses or retrieve their damage. 388 This concerns in particular Dir. 98/58. 389 Council Dir. 1999/74, Council Dir. 2008/119 and Council Dir. 2008/120 provide more resource-based requirements. In addition, Reg. 1/2005 and Reg. 1099/2009 provide more management-based requirements, while Council Dir. 2007/43 equally provides both resource- and management-based requirements.

Still, the current animal welfare provisions provide only minimum protection.390 They, therefore, lack any incentive to achieve the highest possible level of animal welfare. 391 Furthermore, current compliance mechanisms cannot protect farm animal welfare effectively within the intensive production-driven animal husbandry. Firstly, most obligations are only imposed on Member States, while only two regulations also impose enforceable duties on business operators or competent authorities. Secondly, the focus on production-driven animal husbandry compromises adequate and integral protection of the four animal welfare objectives. Although resource-based provisions enable intensive farming systems to protect animal health, they fail to integrally protect the other three welfare objectives, such as the ethological requirements. Production-driven animal husbandry also leads to high stocking densities, which have detrimental effects on animal welfare, and precludes effective monitoring. Nevertheless, case-law provides that the CJEU, in light of Article 13 TFEU, ensures a high level of animal welfare protection within the boundaries of secondary law.392 By balancing animal welfare equally against other objectives, it is argued that the CJEU perceives animals as sentient beings and pays full regard to the protection of their welfare. However, animal welfare cannot restrict the free movement of goods in case of harmonisation, nor is it regarded as a general principle of EU law.

To achieve a higher level of animal welfare, the EU needs to reform its production-oriented animal husbandry. However, given that animal welfare is also value-based, the EU first needs to determine its desired level of animal welfare and quantify certain benchmarks. To start with, farm animals should be perceived as members of the agricultural community, instead of mere products.393 Membership does not grant animal rights but does impose obligations on the agricultural community. Furthermore, animal husbandry should be interest-based to provide a sustainable business model that respects the sentient nature of animals. Therefore, the EU should adopt a general animal welfare regulation that incorporates Gygax’s & Hillmann’s concept of ‘naturalness’ and observes the four animal welfare objectives integrally.394 A regulation also enables the EU to impose duties on both the Member States, business operators, and other stakeholders. Furthermore, it allows individuals to rely on its provisions in court, which enables judges to provide judicial protection by assessing the effectiveness and necessity of a measure.395 Additionally, the regulation should impose a duty of care, allow interest groups to have a stance in court, incorporate the precautionary principle, and establish an independent animal welfare authorities. Animal welfare authorities should thereby be allowed to publish the names and sanction decision of the concerning business operators. Finally, the regulation should impose civil liability on business operators by allowing private damage claims from supply chain partners. Animal welfare authorities should thereby be allowed to publish the names and enforcement decisions of the concerning business operators.

390 For example, see: Article 4 Reg. 1/2005. 391 Of course, the legal instruments include evaluation provisions and allow the Commission to adjust some technical requirements or animal welfare parameters. 392 Rec. 20 & Article 4(1) Reg. 1099/2009 in conjunction with CJEU 26 February 2019, C‑497/17,ECLI:EU:C:2019:137 (OABA/France), paras. 46, 52; rec. 5 & rec. 11 Reg. 1/2005 in conjunction with CJEU 23 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), paras. 35-36. 393 In particular because the production-based notion of animals becomes untenable due to the status of animals as sentient beings and recent philosophical and scientific insights. 394 Article 13 TFEU and the CAP thereby provide the EU a derived regulatory competence to enact farm animal welfare measures. 395 CJEU 26 February 2019, C-497/17, ECLI:EU:C:2019:137 (OABA/France), paras. 47, 49-50, 52.

5 ANIMAL WELFARE PROTECTION BY MEMBER STATES

5.1 Introduction This chapter answers whether EU law allows Member States to enact domestic animal welfare measures. Firstly, paragraph 5.2 discusses if negative integration precludes domestic animal welfare measures. The relevant derogations from the free movement of goods to protect animal welfare are discussed in paragraph 5.3. Paragraph 5.4 discusses whether Member States can ensure animal welfare through the means of EU competition law, while paragraph 5.5 provides the conclusion of this chapter. 5.2 Negative integration, an obstacle Negative integration of EU law entails the integration of the internal market by prohibiting national measures that impose trade obstacles.396 It imposes an obligation on Member States to abstain from adopting provisions that restrict free trade.397 Negative integration is also perceived as judicial integration as the CJEU has the authority to prohibit national laws that are contrary to EU law.398 It should be observed that animal welfare protection cannot be achieved through negative integration because Article 13 TFEU does not prohibit animal welfare violations.

Given that farm animal welfare is a shared competence, Member States can enact domestic animal welfare measures pursuant to Article 2(2) TFEU.399 Consequently, these measures could preclude the free movement of goods.400 Thus, negative integration could preclude domestic animal welfare provisions.401 Hence, the following paragraphs discuss to which extent EU law allows Member States to derogate from the free movement of goods to protect animal welfare. 5.3 Free movements of goods In principle, Member States are free to regulate the production and marketing of goods within their territory in the absence of harmonisation.402 However, this freedom is restricted by the free movement of goods; a fundamental principle of EU law.

396 P. Caro de Sousa, ‘Negative and Positive Integration in EU Economic Law: Between Strategic Denial and Cognitive Dissonance?’ German Law Journal (13) 2012, p. 980; W. Wolfgang, ‘Negative and Positive Integration in EU Criminal Law Co-operation’, European Integration online Papers (15) 2011, Article 3, p. 2-3. 397 M. Blauberger, ‘Compliance with rules of negative integration: European state aid control in the new member states’, Journal of European Public Policy (16) 2009-7, p. 1030, 1033. 398 Article 19 TEU; Articles 258 (2) TFEU & 259 (1) TFEU in conjunction with Article 260 TFEU; Article 267 TFEU; R. Schütze, European Union Law, Cambridge: Cambridge University Press 2018, p. 17; examples within EU case law, see: CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon); CJEU 11 July 1974, C-8/74, EU:C:1974:82 (Dassonville), para. 5; CJEU 6 October 2015, C-354/14, ECLI:EU:C:2015:658 (Capoda Import-Export), paras. 39, 46. 399 43(1) TFEU, in light of Article 13 TFEU, in conjunction with Article 4(1), (2)(d) TFEU; in case global interest, Member States could resort to intergovernmental cooperation, see: C. Barnhard & S. Peers (eds.), European Union Law, Oxford: Oxford University Press 2017, p. 19; F.W. Scharpf, ‘Negative and Positive Integration in the Political Economy of European Welfare States’, in: M. Rhodes et al (ed.), The Future of European Welfare States, London: Palgrave Macmillian 1998, p. 91. 400 Article 34 TFEU; Article 35 TFEU; CJEU 11 July 1974, C-8/74, EU:C:1974:82 (Dassonville), para. 5. 401 This does not apply to domestic measures that do not obstruct trade, such as the requirement to install fire installation or the banning of certain practices, such as castrating pigs. 402 C. Barnhard & S. Peers (ed.), European Union Law, Oxford: Oxford University Press 2017, p. 312.

Articles 34 and 35 TFEU prohibit all quantitative restrictions and measures that have an equivalent effect (‘MEQR’s’) on imports and exports.403 Quantitative restrictions have as objective too, totally or partially, limit the number of imports, exports, or goods in transit by imposing quotas or bans.404 MEQR’s are, in light of Dassonville, defined as all trading rules that are not described as quotas or bans, but have the same effect to hinder, directly or indirectly, actually or potentially, interstate-trade.405 They encompass (i) measures that restrict the marketing or selling of goods, (ii) measures that restrict the producing or packaging of goods, and (iii) other measures that constitute trade obstacles.406 Cassis de Dijon also obliges Member States to accept lawfully equal produced or marketed goods from other Member States due to the principle of mutual recognition.407 Thus, both the Dassonville-formula and mutual recognition limit the enactment of restrictive measures. Nevertheless, the free movement of goods is not absolute and can be restricted to protect the public interest of the Member States.408 Distinct measures can only be justified by the grounds within Article 36 TFEU, such as animal health, public morality, and public policy.409

403 This distinction, however, is regarded artificial because the Dassonville formula provides that: “All trading rules (…) which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent (…).”, see: CJEU 11 July 1974, C-8/74, ECLI:EU:C:1974:82 (Dassonville), para. 5; F. Weiss & C. Kaupa, European Union Internal Market Law, Cambridge: Cambridge University Press 2014, p. 56-57; C. Barnhard, The Substantive Law of the EU: The Four Freedoms, Oxford: OUP 2013, p. 74. 404 CJEU 17 July 1973, C-2/73, ECLI:EU:C:1973:89 (Geddo/Ente), para. 7; CJEU 14 December 1979, C-34/79, ECLI:EU:C:1979:29 (Henn & Darby), paras. 11-13; CJEU 9 June 1992, C-47/90, ECLI:EU:C:1992:250 (Delhaize/Promalvin), paras. 11-14, 27; CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (Compassion in World Farming), para. 39. 405 MEQR’s can be divided in distinctly applicable measures against products on the basis of origin or indistinctly by legal applying to all goods, but still in practice impose a higher burden on non-domestic goods. Finally, the CJEU prohibited all measures that restrict the market access, including even the mere possibility of dissuading the introduction of marketing of a good, see: CJEU 11 July 1974, C-8/74, ECLI:EU:C:1974:82 (Dassonville), para. 5; CJEU 14 June 2018, C-169/17, ECLI:EU:C:2018:440 (the Association/Spain), para. 21; L.W. Gormley, ‘The Definition of Measures of Equivalent Effect’, in: A. Arnull, P. Eeckhout & T. Tridimas (ed.), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs, Oxford: Oxford University Press 2008, p. 192-193; D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 756-758, 761; C. Barnhard, The Substansive Law of the EU: The Four Freedoms, Oxford: Oxford University Press 2016, p. 19, 80-85, 90, 102-106; with regard to indistinctly measures, see: CJEU 20 May 2003, C-469/00, ECLI:EU:C:2003:295 (Ravil/Bellon Import), paras. 40, 43, 88; CJEU 1 December 2008, C-205/07, ECLI:EU:C:2008:730 (Gysbrechts), paras. 42-44; with regard to all other trade restricting measures, see: CJEU 12 July 2012, C-171/11, ECLI:EU:C:2012:453 (Fra.Bo), para. 22; CJEU 10 February 2009, C-110/05, ECLI:EU:C:2009:66 (Commission/Italy), para. 37 & CJEU 4 June 2009, C-142/05, ECLI:EU:C:2009:336 (Mickelsson and Roos), para. 28; P. VerLoren van Themaat, ‘Bevat Artikel 30 van het EEG-Verdrag slechts een non-discriminatie- beginsel ten aanzien van invoerbeperkingen?', Sociaal-Economische Wetgeving (632) 1967. 406 D. Chalmers, G. Davies & G. Monti, European Union Law, Cambridge: Cambridge University Press 2016, p. 756; N.N. Shuibhne, The Coherence of EU Free Movement Law: Constitutional Responsibility and the Court of Justice, Oxford: Oxford University Press 2013, p. 25. 407 CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon), para. 14; CJEU 10 February 2009, C-110/05, ECLI:EU:C:2009:66 (Commission/Italy), paras. 34-35; C. Janssens, The Principle of Mutual Recognition in EU Law, Oxford: Oxford University Press 2013, p. 11, 125. 408 C. Barnhard & S. Peers (eds.), European Union Law, Oxford: Oxford University Press 2017, p. 480. 409 CJEU 18 July 2007, C-490/04, ECLI:EU:C:2007:430 (Commission/Germany), para 86; F. Weiss & C. Kaupa, European Union Internal Market Law, Cambridge: Cambridge University Press, p. 33.

Indistinctly applicable measures and other trade obstacles can also be justified by mandatory requirements (‘MR’s’).410 The following subparagraphs discuss the relevant derogations within EU law from the free movement of goods on the basis of animal welfare.

5.3.1 Article 36 TFEU: Public morality and policy Distinctly applicable measures can be justified on the grounds of public morality or policy. 411 Public morality entails an ethical benchmark according to the values of a Member State. Although Member States determine their moral standards, the issue must be sufficiently serious and not constitute arbitrary discrimination. 412 The UK, for instance, could prohibit the import of pornographic materials based on public morality because they prohibited all lawful trade of pornographic materials in general.413 However, when they only prohibited the import and not the domestic manufacturing and marketing, the measure could not be justified on the ground of public morality.414 In Compassion, animal welfare concerns could not be justified by public morality as they were invoked as “an aspect” of the justification of animal health instead of a “separate” ground.415 This implies that besides the violation of animal welfare requirements, the activity as such must constitute sufficient serious moral concerns about animal welfare.416 For instance, the killing of seals as such raises high public concerns about animal welfare besides the violation of relevant animal welfare requirements.417 In contrast, animal husbandry as such will not constitute the same public concerns.

In Compassion, the UK also invoked public policy to protect animal welfare. 418 Public policy entails a genuine and sufficiently serious threat against a fundamental interest of society, which is interpreted restrictively by the CJEU.419 It is, therefore, a diffuse, yet restricted, residual category.420

410 The CJEU thereby assesses (i) which kind of measure restricts the free movement of goods, and (ii) whether the measure is justified and proportionate, in order to ensure the functioning of the internal market. See: CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon), para 8; C. Janssens, The Principle of Mutual Recognition in EU Law, Oxford: Oxford University Press 2013, p. 12-13; N.N. Shuibhne, The Coherence of EU Free Movement Law: Constitutional Responsibility and the Court of Justice, Oxford: Oxford University Press 2013, p. 24. 411 Article 36 TFEU; CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (UK/Compassion in World Farming), paras. 66- 68. 412 CJEU 14 December 1979, C-34/79, ECLI:EU:C:1979:295 (Henn and Darby), para. 21; CJEU 11 March 1986, C-121/85, ECLI:EU:C:1986:114 (Conegate), para. 15. 413 CJEU 14 December 1979, C-34/79, ECLI:EU:C:1979:295 (Henn and Darby), paras. 15-17. 414 Non-unilateral prohibitions thus imply that the moral issue is not sufficiently seriously threatened in order to justify the restriction of the free movement of goods, which could assume arbitrary discrimination, see: CJEU 11 March 1986, C-121/85, ECLI:EU:C:1986:114 (Conegate), paras. 15-17, 20. 415 Because the moral concerns were “an aspect” of animal health, the UK sought recourse to a ground that was already harmonized, see: CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (UK/Compassion in World Farming), paras. 66, 68. 416 Subsequently, these concerns must, taken as a whole, lead to unitary prohibitions or marketing restrictions. 417 Generally, these concerns result in the restriction of the activity as such. 418 CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (UK/Compassion in World Farming), paras. 65-66, 68. 419 CJEU 4 December 1974, C-41/74, ECLI:EU:C:1974:133 (Van Duyn), paras. 18-19, 21, 24; CJEU 27 October 1977, C- 30/77, ECLI:EU:C:1977:172 (Bouchereau), paras. 33, 35; CJEU 14 October 2014, C-36/02, ECLI:EU:C:2004:614 (Omega), para. 30; T. Hoško, ‘Public Policy as an Exception to Free Movement within the Internal Market and the European Judicial Area: A Comparison’, Croatian Yearbook of European Law and Policy (10) 2014, p. 193-194, 208. 420 The legal context determines whether public policy can be invoked. For instance, a municipality can restrict the locale sale of cannabis on the basis of public policy in order to combat drugs tourism and the accompanied public nuisance. In contrast, public policy derogations on the Member State level require a sufficient threat to a

In practice, it is unlikely that animal welfare could be justified by the public policy-ground as it requires more than the mere violation of animal welfare.421 In Compassion, the CJEU held that the response of a section of the public opinion towards the veal create system did not genuinely threaten or contravene public policy.422 Public policy derogations based on animal welfare can, however, be invoked within the context of secondary law and competition law.423

5.3.2 Article 36 TFEU: Animal health From the start of the European project, animal health, as enshrined within Article 36 TFEU, provides, in absence of harmonisation, a justification of restrictive non-discriminatory domestic provisions. 424 Arguably, animal welfare could be perceived as part of animal health within the meaning of Article 36 TFEU. To start with, EU law is not set in stone; the textual expression does not always entail the scope of a provision.425 The CJEU could assess animal welfare in conjunction with animal health by analogy with Mickelsson and Roos. 426 Furthermore, animal health and animal welfare are different, yet inherently interlinked concepts.427 In the past, these concepts were also perceived as interchangeable.428

fundamental interest of society as a whole or the functioning of a state, such as the right to mint coinage or to restrict the residence of non-nationals on the basis of personal conduct associated with socially harmful activities. See: CJEU 16 December 2010, C-137/09, ECLI:EU:C:2010:774 (Josemans/Burgemeester van Maastricht), paras. 62, 66-67, 82-84; CJEU 23 November 1978, C-7/78, ECLI:EU:C:1978:209 (Thompson), paras. 32-34; CJEU 4 December 1974, C-41/74, ECLI:EU:C:1974:133 (Van Duyn), paras. 18-19. 421 Hypothetically, Member States could incorporate animal welfare as a fundamental value of the state, such as a constitutional duty (see by analogy: CJEU 14 October 2014, C-36/02, ECLI:EU:C:2004:614 (Omega), paras. 30-35). Based on this constitutional obligation, Member States could, in absence of harmonisation, prohibit the slaughter of animals that are considered to be by products, such as male chicks, within their territory. Of course, the need to prove that animal welfare protection constitutes a fundamental interest and that the activity as such is a sufficient threat against it. 422 Conclusion A-G Léger 15 July 1977, C-1/96, ECLI:EU:C:1997:365 (UK/Compassion in World Farming), paras. 109- 110; CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (UK/Compassion in World Farming), paras. 67-68. 423 Here, public policy refers to a legitimate public interest and does not require a ‘sufficient threat to society’s fundamental interest’. Rec. 40, 41 Dir. 2006/123/EC, for instance, regard animal welfare as an ‘overriding reasons relating to the public interest’ and as a matter of ‘public policy’; paragraph 5.4 discusses EU competition law. 424 Article 36 Treaty of Rome 1957; CJEU 8 November 1979, C-15/79, ECLI:EU:C:1979:253 (Groenveld), paras. 5, 7-9; D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 894. 425 For instance, the text of Article 19(1) TEU only refers to the CJEU, but according to case-law also includes national courts because they ensure judicial review in the EU legal order, see: CJEU 27 February 2018, C-34/16, ECLI:EU:C:2018:117 (Associação Sindical dos Juízes Portugueses), paras. 32-33; see, by analogy, also the interpretation of Article 123 TFEU and Article 125 TFEU (‘No bail-out clause’) with regard to the ESM Treaty and the authorisation of the ECB to buy state bonds on the secondary market, see: CJEU 27 November 2012, C‑370/12, EU:C:2012:756 (Pringle), paras. 125-126, 130, 132, 137; CJEU 16 June 2015, C-62/14, ECLI:EU:C:2015:400 (Gauweiler), paras. 94-95, 102-103, 105-107, 113, 116, 127. 426 CJEU 4 June 2009, C-142/05, ECLI:EU:C:2009:336 (Mickelsson and Roos), paras. 31, 33; furthermore, whereas environmental issues “affect” human health, animal welfare is actually an inherent “part” of animal health. 427 Rec. 7 Reg. 2016/429 Animal Health Law; Articles 7.1.2(1) & 7.1.1 Terrestrial Animal Health Code 2018, World Organization for Animal Health (OIE). 428 After the ratification of the Convention, animal welfare requirements were integrated within the animal health- ground, see, for instance, the reasoning of the Dutch government: CJEU 1 April 1982, C-141/81 – C-141/83, ECLI:EU:C:1982:122 (Holdijk), p. 1306-1307; moreover, the CJEU mentioned in Andibel first animal welfare and then refers to the animal health-exception, see: CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 27- 28.

On the other hand, Article 36 TFEU is interpreted strictly and the CJEU tends to be reluctant to deviate from this narrow interpretation.429 The Treaties thereby explicitly distinguish between the concept of animal welfare and animal health.430 Animal health and animal welfare sometimes also entail different concepts.431 Thus, without amendment of the Treaties, the CJEU can legitimately exclude animal welfare from animal health. At last, it should be observed that Member States cannot take recourse to Article 36 TFEU in case of harmonisation.432 Nonetheless, secondary law could provide a derogation for Member States based on animal welfare, such as a suspension of animal transports during heat waves.433

5.3.3 Mandatory requirements MR’s are case-law based derogation grounds concerning the public interest of Member States, which are not mentioned in Article 36 TFEU.434 The list of MR’s are non-exhaustive and could, therefore, include other interests than the ones that are mentioned in Cassis de Dijon. 435 Analogical to environmental protection, the CJEU could regard animal welfare as a mandatory requirement. 436 Animal welfare is a provision of general application within EU primary law and entails a legitimate objective within the public interest.437

429 See, for instance, CJEU 25 January 1977, C-46/76, ECLI:EU:C:1977:6 (Bauhuis), para. 12; C. Barnhard & S. Peers (eds.), European Union Law, Oxford: Oxford University Press 2017, p. 355; L.W. Gormley, ‘The Definition of Measures Having Equivalent Effect’, in: A. Arnull, P. Eeckhout & T. Tridimas, Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs, Oxford: Oxford University Press 2008, p. 191. 430 The European legislator incorporated animal welfare as a horizontal clause within the Lisbon-treaty, but not within Article 36 TFEU. 431 Animal welfare focusses on the protection of individual welfare, which also include health, requirements, whereas animal health also implies a public protection and preservation of species. In Bayer, for example, animal health focused on the overall protection of the bee-population, while in Viamex the welfare of individual animals required protection, see: GCEU 17 May 2018 T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta / Commission), para. 427; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2006:118 (Viamex/Hauptzollamt Hamburg-Jonas), paras. 34-36 432 See by analogy: Van den Burg, in which the CJEU held that a prohibition on the importation and marketing of lawfully hunted birds in another Member State, that did not fall under the definition of ‘migratory’ or ‘endangered’ species of Council Dir. 79/409, could not be justified under Article 36 EEC or subjected to stricter rules than the directive, see: CJEU 23 May 1990, C-169/89, ECLI:EU:C:1990:227 (Van den Burg), paras. 8, 15-16; also: CJEU 23 May 1996, C-5/94, ECLI:EU:C:1996:205 (Hedley Lomas), paras. 18, 21; CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (UK/Compassion), paras. 67-69; R. Schütze, European Union Law, Cambridge: Cambridge University Press 2018, p. 584D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 906. 433 See, for instance: ‘Despite EU Commision’s heat wave alert, most Member States are continuing to transport animals’, Eurogroup for Animals, 24 June 2019, http://eurogroupforanimals.org. 434 D. Chalmers, G. Davies & G. Monti, European Union Law, Cambridge: Cambridge University Press 2016, p. 926- 927. 435 The inclusion of “requirements” as a plural noun and the term “in particular” without a strict or narrow interpretation indicate that mandatory requirements are non-exhaustive, see: CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon), para. 8. 436 CJEU 7 February 1985, C-240/83, ECLI:EU:C:1985:59 (ADBHU), paras. 12-13, 15; CJEU 20 September 1988, C- 302/86, ECLI:EU:C:1988:421 (Commission/Denmark), paras. 8-9; CJEU 2 July 1992, C-2/90, ECLI:EU:C:1992:310 (Walloon-case), paras. 30, 32. 437 Article 13 TFEU read in light of Title II TFEU; CJEU 25 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh-Export), para. 35; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), para. 27; CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK), para. 22.

The status of animals as sentient beings within EU primary law also expresses the importance of animal welfare by Member States and obliges them to protect animal welfare.438 However, the application of MR’s in the context of animal welfare is restricted. 439 MR’s can only justify indistinctly applicable measures.440 According to Gormley, this is an essential distinction between Treaty-based derogations and MR’s as the latter are not included within the Treaty.441 Indeed, the CJEU did not elaborate on whether mandatory requirements as such also encompass discriminatory measures. 442 Yet, this distinction is sometimes artificial. It neglects that some MR’s have been incorporated within the Treaty as provisions of general application and constitute “legitimate objectives within the public interests” on the EU-level.443 Hence, it is untenable that EU law addresses Member States to take animal welfare into account when they implement EU policies but precludes them to do so when they adopt domestic policies.444 Therefore, the rule of reason should distinguish between MR’s based on their nature. Analogical to environmental measures, the nature of animal welfare protection inherently differentiates between the origin of products in case they do not comply.445 For example, animal products circulate freely within the internal market and European animal husbandry can consist of cross-border supply chains. Hence, it could be argued that animal welfare as a mandatory requirement should also justify distinctly measures.

438 There are Member States who have incorporated animal welfare in their constitutions, see: Germany – Article 20a Basic Law for the Federal Republic of Germany; Slovenia – Article 72(4) Official Gazette of the Republic of Slovenia; Austria – Article 11 Austrian Constitution; Luxembourg – Article 11bis Constitution of Luxembourg. Member States can also acknowledge the sentient nature of animals within their legal systems, see: The Netherlands – Article 3:2a(a) Dutch Civil Code; Austria – Article 1 Animal Protection Act (TSchG) & § 285a ABGB. 439 They have to be proportionate and not constitute arbitrary discrimination or disguised trade restrictions, see: CJEU 2 July 1992, C-2/90, ECLI:EU:C:1992:310 (Walloon-case), para. 25; C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 188. 440 CJEU 20 September 1988, C-302/86, ECLI:EU:C:1988:421 (Commission/Denmark), para. 6; L.W. Gormley, ‘The Definition of Measures Having Equivalent Effect’, in: A. Arnull, P. Eeckhout & T. Tridimas, Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs, Oxford: Oxford University Press 2008, p. 192, 199-200; P. VerLoren van Themaat, ‘Bevat Artikel 30 van het EEG-Verdrag slechts een non-discriminatie-beginsel ten aaanzien van invoerbeperkingen?', Sociaal-Economische Wetgeving (632) 1967. 441 The environmental-exception is therefore the only exception to this rule, see: L.W. Gormley, ‘The Definition of Measures Having Equivalent Effect’, in: A. Arnull, P. Eeckhout & T. Tridimas, Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs, Oxford: Oxford University Press 2008, p. 191. 442 C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 188, 191, 200-201; D. Langlet, ‘Free Movement of Goods and the room for Member State Action’, in: D. Langlet & S. Mahmoudi, EU Environmental Law and Policy, Oxford: Oxford University Press 2016, p. 85. 443 Article 13 TFEU read in light of Title II TFEU. 444 In particular because animals as such are recognized as sentient beings by the 27 EU Member States. 445 See by comparison: CJEU 2 July 1992, C-2/90, ECLI:EU:C:1992:310 (Walloon-case), para. 25; CJEU 4 June 2009, C- 142/05, ECLI:EU:C:2009:336 (Mickelsson and Roos), paras. 32, 34, 36; see also: Conclusion A-G Geelhoed 17 July 2005, C-320/03, ECLI:EU:C:2005:459 (Commission/Austria), para. 107; C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 190-191, 199-200.

Nevertheless, the second restriction precludes derogations based on MR’s in case of harmonisation.446 Even though minimum harmonisation allows Member States to enact stricter domestic provisions, they cannot impose trade restrictions in case of a ‘market access clause’.447 A contrario, recourse to MR’s is possible in case of minimum harmonisation without a market clause or derogation system. 448 Unfortunately, most matters concerning animal welfare in the agricultural sector are harmonized and contain a market access clause. Thus, even though animal welfare can be regarded as a mandatory requirement, its application is limited due to extensive harmonisation on animal welfare in the agricultural sector.

5.3.4 Precautionary Principle The precautionary principle allows Member States to enact restrictive measures in case a likelihood of harm occurs to the given objective.449 Pursuant to Article 191(2) TFEU, the precautionary principle applies to environmental policies and, by analogy, to Article 168 TFEU and Article 36 TFEU as a general principle.450 In Andibel, the CJEU held that the precautionary principle justified restrictive measures to protect animal health. 451 Animal welfare, however, is not included within Article 36 TFEU. Thus, the precautionary principle as such only applies to animal health. 452 For sure, the CJEU could, in the absence of harmonisation, interpret animal welfare as an inherent aspect of animal health or assess animal welfare in conjunction with animal health. However, the CJEU interprets Article 36 TFEU strictly.453 It should also be observed that there are differences between the concepts of animal health and welfare.

446 CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon), para. 8; P.P. Craig & G. de Búrca, EU Law: Text, Cases and Materials, Oxford: Oxford University Press 2015, p. 709, 711. 447 CJEU 22 June 1993, C-11/92, ECLI:EU:C:1993:262 (Gallaher), paras. 16, 22-23 in conjunction with Article 8(2) Dir. 89/622; CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (United Kingdom/Compassion in World Farming), para. 64; D. Chalmers & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 906; see, for example: Article 26(3), (4) Reg. 1099/2009. 448 L. Woods, P. Watson & M. Costa, Steiner & Woods EU Law, Oxford: Oxford University Press 2017, p. 342. 449 GCEU 17 May 2018, T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta/Commission), paras. 109-110, 119, 324-325, 496, 499-500; CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 38, 41; CJEU 10 September 2009, C-100/08, ECLI:EU:C:2009:537 (Commission/Belgium), paras. 101-102; F. Fleurke, ‘Future Prospects for Climate Engineering within the EU Legal Order’, European Journal of Risk Regulation (7) 2016, p. 71- 72; H. Somsen, The Regulatory Challenge of Biotechnology, Chicester: Edward Elgar 2007, p. 126, 128. 450 GCEU 26 November 2002, T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00 & T-141/00, ECLI:EU:T:2002:283 (Artegodan/Commission), paras. 173, 175, 182-184; CJEU 23 September 2003, C-192/01, ECLI:EU:C:2003:492 (Denmark/Commission), paras. 42, 45, 49-52; P.P. Craig & G. de Búrca, EU Law: Text, Cases and Materials, Oxford: Oxford University Press 2015, p. 112-113; M.Á. Recuerda Girela, ‘Risk and Reason in the European Union Law’, European Food and Feed Law Review (1) 2006-5, p. 282-283. 451 CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 38, 41. 452 Article 36 TFEU; CJEU 23 September 2003, C-192/01, ECLI:EU:C:2003:492 (Denmark/Commission), paras. 42, 45, 49-52; C. Baudenbacher, ‘The EFTA Court, the ECJ, and the Latter’s Advocates General – a Tale of Judicial Dialogue’, in: A. Arnull, P. Eeckhout & T. Tridimas (ed.), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs, Oxford: Oxford University Press 2008, p. 94. 453 The CJEU therefore performs a detailed assessment according to the latest scientific insights, see: CJEU 11 July 2000, C-473/98, ECLI:EU:C:2000:379 (Toolex Alpha), paras. 15, 17, 46-47; CJEU 23 September 2003, C-192/01, ECLI:EU:C:2003:492 (Commission/Denmark), paras. 42-43, 47, 49, 51, 55-56; K Garnett & D.J. Parsons, ‘Multi-Case Review of the Application of the Precautionary Principle in European Union Law and Case Law’, Risk Analysis (37) 2017, p. 512-513; D. Langlet, ‘Free Movement of Goods and the room for Member State Action’, in: D. Langlet & S. Mahmoudi, EU Environmental Law and Policy, Oxford: Oxford University Press 2016, p. 88.

With regard to harmonized measures, the precautionary principle could be integrated with animal welfare protection within secondary law as derogation ground for Member States. Another issue is that, in principle, the precautionary principle justifies non-discriminatory measures. 454 Nevertheless, the precautionary principle in conjunction with Article 36 TFEU justify discriminatory restrictions. 455 The precautionary principle should, therefore, allow objective discriminatory restrictions in case the nature of the issue requires this.

5.3.5 Selling arrangements Given the aforementioned, the possibilities for Member States to enact stricter provisions in respect to the free movement of goods are limited. In particular when the measures concern the production of goods. In Keck, the CJEU nuanced Dassonvile by allowing certain selling arrangements.456 Selling arrangements entail restrictions on when, where and by whom goods are sold and also encompasses advertising restrictions and price controls.457 These restrictions must apply to all relevant traders within the domestic territory and equally affect, both in law and in practice, domestic and non-domestic products.458 Most animal welfare measures, however, are ‘production-measures’ and thus cannot rely on the Keck- derogation. Furthermore, most selling arrangements are regarded as discriminatory when they tend to exclude non-domestic products.459 Nonetheless, there is a possibility to restrict the way animal products are sold. Member States could, in the absence of harmonisation, impose advertising restrictions based on objective criteria, such as labelling, to influence consumer behaviour.460 For example, products with a low score on animal welfare, such as products that originate from beak trimmed poultry, should be marked as such. Member States could also prohibit the advertisement of products that do not meet the highest level of a tiered system.461

454 GCEU 16 September 2013, T-333/10, ECLI:EU:T:2013:451 (ATC/Commission), para. 81. 455 CJEU 19 June 2008, C-219/07, ECLI:EU:C:2008:353 (Andibel), paras. 38, 41; GCEU 26 November 2002, T-74/00, T- 76/00, T-83/00 to T-85/00, T-132/00, T-137/00 & T-141/00, ECLI:EU:T:2002:283 (Artegodan/Commission), paras. 173, 175, 182-184; CJEU 23 September 2003, C-192/01, ECLI:EU:C:2003:492 (Denmark/Commission), paras. 42, 45, 49-52; M.Á. Recuerda Girela, ‘Risk and Reason in the European Union Law’, European Food and Feed Law Review (1) 2006- 5, p. 282-283 456 CJEU 24 November 1993, C-267/91 & C-268/91, ECLI:EU:C:1993:905 (Keck), paras. 15-16; the rationale behind Keck is that selling-arrangements do not impose production provisions on traders from other Member States and are therefore less restrictive to free trade, see: P. Oliver, ‘Free movement of goods’, in: C. Barnhard & S. Peers (eds.), European Union Law, Oxford: Oxford University Press 2017, p. 351; C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 177-178. 457 C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 178. 458 P. Oliver, ‘Free movement of goods’, in: C. Barnhard & S. Peers (eds.), European Union Law, Oxford: Oxford University Press 2017, p. 351; C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 177. 459 With regard to discriminatory or trade hindering selling arrangements, see: CJEU 11 December 2003, C-322/01, ECLI:EU:C:2003:664 (DocMorris/Germany), para. 74. 460 C. Barnhard, The Substansive Law of the EU: The Four Freedoms, Oxford: Oxford University Press 2016, p. 126; for more on labelling and its influence on consumers, see: M.J.L. Näsström, Farm Animal Welfare in the European Union – a critical analyses (Diss. Leeds 2016), Leeds: University of Leeds 2016, p. 275-281. 461 See by analogy the French advertisement prohibition on the distribution of motor fuels on television: CJEU 9 February 1995, C-412/93, ECLI:EU:C:1995:26 (Leclerc-Siplec), paras. 21-23.

5.3.6 Reverse discrimination Member States can impose higher animal welfare standards to compete on quality.462 Of course, national companies, fearing higher costs, argue that this imposes trade obstacles. In Association/Spain, a Spanish decree granted a non-generic designation ‘ibérico de cebo’ when it complied with its conditions, including a higher minimum of unobstructed floor area and slaughter age. However, the decree also allowed products originating from other Member States with designations similar, comparable or identical designations to the decree.463 Even if the equivalent designations did not meet all the requirements of the decree, it allowed products that were produced and marketed pursuant to the quality standards of the Member State of origin. Because the decree did not prohibit the import of lawfully manufactured products originating from other Member States and accepted a similar level of designations, the CJEU ruled that the decree did not constitute a trade obstacle. 464 Thus, although some quality requirements were connected to animal welfare, the Royal Decree did not aim to enhance animal welfare in other Member States as it accepted their rules.465 It is questionable whether Member States would hinder their national companies without excluding the import from other Member States with less high animal welfare standards. Of course, consumers could demand higher standards through their buying power and supply- chain partners could adopt soft law instruments to promote a higher level of animal welfare. 466 On the other hand, it remains uncertain whether another domestic label would change consumer behaviour. In particular, because the willingness to pay is influenced by the meat-paradox.467

5.3.7 Proportionality In case one of the abovementioned derogations justifies a restrictive measure, the measure needs to be appropriate to achieve the pursued objective and not go beyond what is necessary to attain this. 468

462 For instance, Member State scan phase out certain practices or impose certain technical requirements in stables to protect animal welfare, such as a fire installation. 463 CJEU 14 June 2018, C-169/17, ECLI:EU:C:2018:440 (the Association/Spain), paras. 10, 24-28. 464 CJEU 14 June 2018, C-169/17, ECLI:EU:C:2018:440 (the Association/Spain), para. 28; this is known as ‘reverse discrimination’, see: R. Schütze, European Union Law, Cambridge: Cambridge University Press 2018, p. 523-524. 465 The CJEU stated formally that the Royal Decree fell outside the scope of Dir. 2008/120 because the decree aimed to improve the quality and not to protect pigs. Enhancing the minimum norm did not compromises animal welfare and was “therefore” not incompatible with the directive. Of course, de facto is the result the same, see: CJEU 14 June 2018, C-169/17, ECLI:EU:C:2018:440 (the Association/Spain), paras. 33-36. 466 Yet, this also creates legal uncertainty and could be incompatible with competition law. See, for instance, the Dutch initiative for a sustainable chicken meat concept (‘the Chicken of Tomorrow’ ), in: ’Analysis of the sustainability arrangements concerning the Chicken of Tomorrow’, ACM 2015, https://www.acm.nl/en/publications (search on: Chicken of Tomorrow); J.M. Bos, H. van den Belt & P.H. Feindt, ‘Animal welfare, consumer welfare, and competition law: The Dutch debate on the Chicken of Tomorrow’, Animal Frontiers (8) 2018-1. 467 DG Health and Food Safety & DG for Communication (at request by the European Commission), Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016, p. 5, 15; D. M. Broom, Animal Welfare in the European Union, DG for Internal Policies (at request by the European Parliament),Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 9, 39; E. Aaltola, ‘Politico-Moral Apathy and Omnivore’s Akrasia: Views from the Rationalist Tradition’, Politics and Animals (1) 2015-1, 35-49; P.B. Cliteur & J. Vink, ‘Kunnen we de vleesconsumptie verbieden?’, Ars Aequi (AA20140658) 2014, p. 662-663; E. de Bakker & H. Dagevos, ‘Reducing Meat Consumption in Today’s Consumer Society: Questioning the Citizen-Consumer Gap’, Journal of Agricultural and Environmental Ethics (25) 2012, p. 890-891, 894. 468 Article 5(4) TEU; Articles 1 & 5 Protocol (No. 2) on the application of the principles of subsidiarity and proportionality; CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/The Netherlands), para. 122; P.P. Craig &

Specifically, the given measure has to be (i) suitable, (ii) necessary, and (iii) not constitute disproportionate disadvantages in comparison to the pursued aim. 469 Given that a domestic measure restricts a fundamental principle of EU law, the CJEU’s review on proportionality of domestic measures is more intensive than that of EU measures.470

Suitability, or appropriateness, examines the causality between the proposed measure and the pursued objective. 471 For instance, prohibiting certain bees within an area prevents them from mating with endangered local bee species and is, therefore, suitable to protect these species from getting extinct.472 In contrast, measures are unsuitable when the presented facts evidently do not contribute to the pursued objective.473 Of course, Member States are given a certain margin of discretion to make policy choices. Therefore, the CJEU assesses whether the measure is, or going to be, applied in a consistent and systematic matter, and contributes to the achievement of the pursued objective.474 Hence, suitability assesses whether a measure constitutes a disguised trade restriction or entails a protectionist objective.475

G. de Búrca, EU Law: Text, Cases, and Materials, Oxford: Oxford University Press 2015, p. 556-557; R. Schütze, An Introduction to European Law, Cambridge: Cambridge University Press 2015, p. 204-205. 469 CJEU 25 July 2018, C-239/17, ECLI:EU:C:2018:597 (Teglgaard & Fløjstrupgård/Fødevareministeriets Klagecenter), para.49; CJEU 3 December 1998, C-67/97, ECLI:EU:C:1998:584 (Bluhme), para. 35; CJEU 13 November 1990, C- 331/88, ECLI:EU:C:1990:391 (Fedesa/UK), para 13. 470 T. Tridimas, ‘The Principle of Proportionality’, in: R. Schütze & T. Tridimas, Oxford Principles of European Union Law: Vol. 1: The European Union Legal Order, Oxford: Oxford University Press 2018, p. 254; C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 192; T.-I. Harbo, ‘The Function of the Proportionality Principle in EU Law’, European Law Journal (16), 2010-2, p. 172. 471 Thus, the CJEU reviews whether the conducted assessment and subjected evidence support the claim of the measure. This review resembles a parallel with the review of a manifest assessment error. Compare, for instance: CJEU 12 November 1996, C-84/94, ECLI:EU:C:1996:431 (UK/Commission), paras. 58, 60-66; CJEU 23 September 2003, C-192/01, ECLI:EU:C:2003:492 (Commission/Denmark), para. 46, with: CJEU 23 December 2015, C-333/14, ECLI:EU:C:2015:845 (Scotch Whisky Association), para. 36-39; CJEU 12 November 1996, C-84/94, ECLI:EU:C:1996:431 (UK/Commission), para. 59; T.-I. Harbo, ‘The Function of the Proportionality Principle in EU Law’, European Law Journal (16), 2010-2, p. 164; C. Poncelet, ‘Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 193. 472 CJEU 3 December 1998, C-67/97, ECLI:EU:C:1998:584 (Bluhme), paras. 37-38. 473 For instance, the exclusion of only low alcoholic beverages from the market does not significantly contribute to the protection of public health, see: CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon), paras. 10-11; furthermore, prohibiting the import of “indecent” products does not constitute a consistent protection policy against “indecent products” when these products are legally manufactured and marketed at the domestic level, see: CJEU 11 March 1986, C-121/85, ECLI:EU:C:1986:114 (Conegate), paras. 15-17, 20. 474 However, national courts conduct the factual assessment in order to determine whether the domestic provisions preclude the other objectives of secondary law. In Danske Svineproducenter, Denmark imposed a minimum height that allowed pigs to stand naturally. As Dir. 92/628 did not specify a particular height norm, Member States were allowed a margin of discretion. Consequently, the CJEU instructed the national court to determine whether the national measure prevented the attainment of other objectives of Dir. 92/628 and are objectively proportionate and necessary, see: CJEU 8 May 2008, C-491/06, ECLI:EU:C:2008:263 (Danske Svineproducenter), paras. 38, 42-46, 49-51. 475 C. Poncelet, ‘ Free Movement of Goods and Environmental Protection in EU Law: A Troubled Relationship?’, International Community Law Review (15) 2013, p. 194-196; T. Tridimas, ‘The Principle of Proportionality’, in: R. Schütze & T. Tridimas, Oxford Principles of European Union Law: Vol. 1: The European Union Legal Order, Oxford: Oxford University Press 2018, p. 248-249; S.A. de Vries, ‘Balancing Fundamental Rights with Economic Freedoms According to the European Court of Justice’, Utrecht Law Review (9) 2013, p. 172.

Necessity compares the measure against other least trade-hindering measures in light of the pursued objectives of Article 36 TFEU or MR’s.476 In Monsees, the Austrian ban on long-lasting slaughter transports was deemed disproportionate as it prohibited almost all international transport, while there were less onerous measures.477 Similarly, the German ban on crayfish was also deemed disproportionate because there were other less onerous measures.478 Consequently, the intensity of this review infringes on the discretionary powers of Member States. However, recent case-law indicates that Member States may resort to the strictest measure for reasons of effectiveness and cost to protect non-economic objectives. 479 Moreover, whereas Monsees prohibited almost all international animal transports, Mickelsson and Roos only prohibited jet-skis on generally navigable waterways.480 Also, in comparison to the Italian measure in Trailers, Germany provided in Crayfish complex rules that would eventually allow the prohibited activity.481

Finally, the CJEU could assess proportionality in stricto sensu to determine whether the resulting animal welfare advantages do not disproportionally outweigh the disadvantages. 482 In practice, the CJEU maintains reluctant to perform this test.483 Thus, in the absence of harmonisation, stringent measures enacted by Member States to protect animal welfare would be deemed appropriate and necessary. This does not apply to measures that allow the same activity through the means of complex derogation requirements or affect the structure of the internal market seriously. 484 For instance, Member States could impose a meat tax, but not a minimum price.485

476 A minimum price on alcoholic beverages, for instance, was held to be disproportionate as it was ineffective to combat alcohol misuse in comparison to a general tax, see: CJEU 23 December 2015, C-333/14, ECLI:EU:C:2015:845 (Scotch Whisky Association), paras. 21, 28, 40-41, 44, 46-48, 50. 477 CJEU 11 May 1999, Case C-350/97, ECLI:EU:C:1999:242 (Monsees), paras. 24, 27 478 In Crayfish, Germany imposed a general ban of crayfish to protect the native crayfish species against a crayfish plague while they could achieve the same effect by imposing health checks, see: CJEU 13 July 1994, C-131/93, ECLI:EU:C:1994:290 (Crayfish), paras. 24-25, 27. 479 CJEU 8 September 2009, C-42/07, ECLI:EU:C:2009:519 (Liga Portuguesa de Futebol Profissional), paras. 69, 70; CJEU 4 June 2009, C-142/05, ECLI:EU:C:2009:336 (Mickelsson and Roos), para. 36; CJEU 10 February 2009, C-110/05, ECLI:EU:C:2009:66 (Commission/Italy), para. 67. 480 Moreover, the derogations allowed jet-skis on on-general navigable waterways that would naturally fall outside the scope of the measure, such as areas that were already subjected to a great amount of human activity, resembled a little amount of environmental value, or caused no disturbance and harm to the public or the flora and fauna.: CJEU 4 June 2009, C-142/05, ECLI:EU:C:2009:336 (Mickelsson and Roos), para. 12. 481 In particular because the German federal government imposed health requirements to prevent effectively contamination so that the activity was allowed. Arguably, this degraded the necessity of general ban and the severity of the threat, see: CJEU 13 July 1994, C-131/93, ECLI:EU:C:1994:290 (Crayfish), paras. 24-25, 27. 482 T. Tridimas, ‘The Principle of Proportionality’, in: R. Schütze & T. Tridimas, Oxford Principles of European Union Law: Vol. 1: The European Union Legal Order, Oxford: Oxford University Press 2018, p. 116, 247. 483 Although proportionality in stricto sensu was not assessed explicitly in the Danish Bottle-case, the reasoning of the CJEU suggest otherwise. According to the CJEU the effect of the measure concerning non-approved containers had little effect on the protection of the environment and thus imposed a disproportionate restriction on importers to the objective pursued, see: CJEU, C-302/86, ECLI:EU:C:1988:421 (Commission/Denmark), para. 21. 484 This includes the freedom to set retail prices, such as in Scottish Whiskey. Moreover, as proportionality also entails an integration principle, it prohibits genuine accepted activities within the internal market, such as in Monsees. See: T. Tridimas, ‘The Principle of Proportionality’, in: R. Schütze & T. Tridimas, Oxford Principles of European Union Law: Vol. 1: The European Union Legal Order, Oxford: Oxford University Press 2018, p. 254-255. 485 See by analogy: CJEU 23 December 2015, C-333/14, ECLI:EU:C:2015:845 (Scotch Whisky), paras. 21, 46.

5.4 Animal welfare and EU competition law Member States can protect animal welfare by providing a derogation from EU competition law, which allows undertakings to develop animal welfare initiatives. EU competition law regulates anti-competitive conduct by undertakings to prevent distortion of competition.486 Unfortunately, competition law restricts animal welfare initiatives by undertakings as it protects economic consumer interest and excludes non- economic objectives from the economic assessments.487 Although economists can assess the “willingness to pay”,488 this method has its flaws.489

486 Restrictions by private undertakings are not governed by Article 34 TFEU; Articles 101(1), 102(1) TFEU; C. Barnhard, The Substansive Law of the EU: The Four Freedoms, Oxford: Oxford University Press 2016, p. 510; D. Chalmers, G. Davies & G. Monti, European Union Law, Cambridge: Cambridge University Press 2014, p. 768, 944. 487 The “economization of competition law” excluded political considerations from competition assessments and resulted in a narrow consumer welfare approach. Hence, Article 101(3) TFEU only applies to economic benefits and requires that these accrue to the actual users of the goods, see: A. Gerbrandy, ‘Rethinking Competition Law within the European Economic Constitution’, Journal of Common Market Studies (57) 2019, p. 131-132; J.M. Bos et al.., Animal welfare, consumer welfare, and competition law: The Dutch debate on the Chicken of Tomorrow’, Animal Frontiers (8) 2018, p. 21; R. Claassen & A. Gebrandy, ‘Rethinking European Competition Law: From a Consumer Welfare to a Capability Approach’, Utrecht Law Review (12) 2016, p. 10; K.J. Cseres, ‘The Controversies of the Consumer Welfare Standard ‘, The Competition Law Review (3) 2007, p. 124-125, 172. 488 The “willingness to pay” assesses to which extent consumers perceive animal welfare as value creation by examining competitive parameters, such as choice and quality, on basis of “rational” consumer perspectives, see: R. Claassen & A. Gebrandy, ‘Rethinking European Competition Law: From a Consumer Welfare to a Capability Approach’, Utrecht Law Review (12) 2016; ); J.M. Bos, H. van den Belt & P.H. Feindt, ‘Animal welfare, consumer welfare, and competition law: The Dutch debate on the Chicken of Tomorrow’, Animal Frontiers (8) 2018-1; With regard to the competitive parameters, see: CJEU 27 March 2012, C-209/10, ECLI:EU:C:2012:172 (Post Danmark I), para. 22; CJEU 11 September 2014, C-382/12 P, ECLI:EU:C:2014:2201 (MasterCard/Commission), para. 93; Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (PbEU 2004, C 31/5, point 8); Guidelines on the application of Article 81(3) of the Treaty (PbEU 2004, C 101/97, point 21); Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (PbEU 2009, C 45/7), point 5. 489 The “willingness to pay” neglects utilitarian preferences and the influence of the meat-paradox. This causes humans to empathize with animals and, paradoxically, justify the consumption of low animal welfare products. 94% of the EU citizens, for instance, values animal welfare protection, though, it is not reflected within their buying behaviour, see: M. Mulder & S. Zomer, ‘Dutch Consumers’ Willingness to Pay for Broiler Welfare ‘, Journal of Applied Animal Welfare Science (20) 2017-2, p. 138, 140, 148; DG Agricultural and Rural Development, EU Agricultural Outlook: Prospects for the EU agricultural markets and income 2017-2030, European Commission, 2017, p. 43; D-G Health and Food Safety & DG for Communication, Special Eurobarometer 442: Attitudes of Europeans towards Animal Welfare (Summary), 2016, p. 5, 15; D.M. Broom, Animal Welfare in the European Union, DG for Internal Policies (at request by the European Parliament), Policy Department C: Citizens' Rights and Constitutional Affairs 2017, p. 9, 39; S. Vetter, L. Vasa & L. Ózsvári, ‘Economic Aspects of Animal Welfare’, Acta Polytechnica Hungarica (11) 2014, p. 126, 128; E. de Bakker & H. Dagevos, ‘Reducing Meat Consumption in Today’s Consumer Society: Questioning the Citizen-Consumer Gap’, Journal of Agricultural and Environmental Ethics (25) 2012, p. 890-891, 894; H. Buller et al., ‘Towards Farm Animal Welfare and Sustainability’, Animals (8) 2018-6, nr. 81, par. 3.5; B. Bastian & S. Loughnan, Resolving the Meat-Paradox: A Motivational Account of Morally Troublesome Behavior and Its Maintenance’, Personality and Social Psychological Review (21) 2016, p. 279-282; D.M. Ferguson, C. Lee & A. Fisher (eds.), Advances in Sheep Welfare, Cambridge: Woodhead Publishing 2017, p. 40; E. Dowset et al.,’Neutralising the meat paradox: Cognitive dissonance, gender, and eating animals’, Appetite (123) 2018, 280-288; E. Aaltola, ‘Politico- Moral Apathy and Omnivore’s Akrasia: Views from the Rationalist Tradition’, Politics and Animals (1) 2015-1, 35-49; L.O. Ursin, ‘The Ethics of the Meat Paradox’, Environmental Ethics (38) 2016, p. 131-144; R. Claassen & A. Gebrandy, ‘Rethinking European Competition Law: From a Consumer Welfare to a Capability Approach’, Utrecht Law Review

It is also incompatible with the notion of animals as sentient beings.490 Therefore, agreements that cause direct detrimental economic effects, such as price increase, are prohibited unless they allocate a fair share of benefits to the same group of consumers.491

Nonetheless, Member States can protect non-economic objectives to some extent within EU competition law. First of all, the TFEU provides that economic objectives do not outweigh non-economic objectives.492 Therefore, animal welfare stands on an equal footing to competition law.493 Secondly, the CJEU held that the protection of consumer welfare is not the only objective of competition law. 494 Thirdly, the CAP justifies derogations from EU competition law.495

(12) 2016, p. 14; J.M. Bos et al., Animal welfare, consumer welfare, and competition law: The Dutch debate on the Chicken of Tomorrow’, Animal Frontiers (8) 2018, p. 25. 490 The “willingness to pay” underrates the value of animal welfare as a public goods, see: T. Christensen, S. Denver & P. Sandoe, ‘How best to improve farm animal welfare? Four main approaches viewed from an economic perspective’, Animal Welfare (28) 2019, p. 98; M. Mulder & S. Zomer, ‘Dutch Consumers’ Willingness to Pay for Broiler Welfare ‘, Journal of Applied Animal Welfare Science (20) 2017-2, p. 137-138; K. Hart et al., What Tools for the European Agricultural Policy to Encourage the Provision of Public Goods (at request by the European Parliament's Committee on Agriculture and Rural Development), Brussels: European Parliament 2011, p. 21, 26; H.M. Nielsen et al, ‘How to Consider the Value of Farm Animals in Breeding Goals. A Review of Current Status and Future Challenges’, Journal of Agricultural and Environmental Ethics (24) 2011, 309-330; U.J. Frey & F. Pirscher, ‘Willingness to pay and moral stance: The case of farm animal welfare in Germany’, Plos one (13) 2018-10; G. Nocella, L. Hubbard & R. Scarpa, ‘Farm Animal Welfare, Consumer Willingness to Pay, and Trust: Results of a Cross-National Survey’, Applied Economic Perspectives and Policy (32) 2010, p. 292-293. 491 A fair share entails that the benefits must compensate actual consumers for any actual or likely negative impact that they will experience, see: Article 101(1) TFEU in conjunction with Article 101(3) TFEU; A. Ortega Gonzáles, The Enforcement of EU Competition Law in Cartel Cases: Seeking Effectiveness in Divergence (diss. Antwerp), Antwerp: Antwerp University 2017, p. 87 (under reference to note 427); consequently, non-economic benefits towards consumers or society, such as animal welfare protection, cannot be justified by Article 101(3) TFEU. See, for instance, the Dutch example on “the Chicken of Tomorrow”: ACM’s analysis of the sustainability arrangements concerning the Chicken of Tomorrow (13.0195.66), ACM 2015; J.M. Bos et al., ‘Animal welfare, consumer welfare, and competition law: The Dutch debate on the Chicken of Tomorrow’, Animal Frontiers (8) 2018, p. 21; K.J. Cseres, ‘The Controversies of the Consumer Welfare Standard ‘, The Competition Law Review (3) 2007, p. 124-125, 167-168, 172; A. Gerbrandy, ‘Rethinking Competition Law within the European Economic Constitution’, Journal of Common Market Studies (57) 2019, p. 131-132; A. Gerbrandy, ‘Solving a Sustainability-Deficit in European Competition Law’, World Competition (40) 2017, p. 541, 546-547, 549-550. 492 Article 3 TEU; Article 7 TFEU; S.A.C.M. Lavrijssen, ‘What role for National Competition Authorities in Protecting Non-competition Interests after Lisbon?’, European law review (37) 2010, p. 635-636; with regard to fundamental rights, see: F.A. Costa-Cabral & O. Lynskey, 'Family Ties: The intersection of data protection and competition law in EU law', Common Market Law Review (54) 2017, p. 48. 493 Article 13 TFEU read in the light of Title II TFEU; see by analogy environmental protection and competition law, in: S. Kingston ‘Integration Environmental Protection and EU Competition Law: Why Competition Isn’t Special’, European Law Journal (16) 2010- 6, p. 780-805; S.A.C.M. Lavrijssen, ‘What role for National Competition Authorities in Protecting Non-competition Interests after Lisbon?’, European law review (37) 2010, p. 634-659; 494 CJEU 4 June 2009, C-8/08, ECLI:EU:C:2009:343 (T-Mobile, KPN, Orange, Vodafone/NMa), paras. 38-39; CJEU 6 October 2009, C-501/06 P, C-513/06 P, C-515/06 P & C-519/06 P, ECLI:EU:C:2008:738 (EAEPC/GlaxoSmithKline), paras. 59-60, 62-63; A. Gerbrandy, ‘Case C-8/08, T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV v. Raad van bestuur van de Nederlandse Mededingingsautoriteit, Judgment of the Court (Third Chamber) of 4 June 2009', Common Market Law Review (47) 2010, p. 1207-120. 495 Article 42 TFEU in conjunction with Article 39(1) TFEU in conjunction with Articles 206, Article 209(1) Council Reg. 1308/2013; although Article 39 TFEU does not include animal welfare as it objective, animal welfare is regarded as a method of production, see: CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (UK/Council), paras. 17, 23-24;

Furthermore, the Wouters-case let non-economic objectives based on domestic public law prevail over EU competition law. The CJEU thereby balanced the public interest of Member States against the restrictive effects on competition to determine whether the measure could be exempted from Article 101(1) TFEU.496 As the decision of Dutch competition authority was rooted in law, the measure fell under the exemption of Article 101(1) TFEU and, therefore, outside the scope of Article 101(3) TFEU. Therefore, exemptions based on public law ensure that the political assessment of the measure remains at the discretion of the legislative authorities.497 This allows competition authorities to observe animal welfare without politicising their functioning.498 Animal welfare objectives, therefore, can prevail over economic consumer interest within EU competition law through the means of public law.499

see also the future position of animal welfare within the CAP strategic plans of the Commission, in: rec. 17, 21 & Article 6(1)(i) Proposal for a Regulation on CAP Strategic Plans (COM/2018/392 final). 496 According to the CJEU, the restrictive effects were inherently part of a necessary measure to protect the practice of the legal profession, which was derogated to the Dutch Bar Association by law, see: CJEU 19 February 2002, C- 309/99, ECLI:EU:C:2002:98 (Wouters/the Netherlands); paras. 97, 100, 105, 108-110, read in conjunction with Article 28 Dutch Lawyer Act (‘Advocatenwet) & the 1993 Regulation; The measure did therefore not allocate market efficiencies, but addressed a market failure that harmed a legitimate objective within the public interest, see: C. Janssen & E. Kloosterhuis, ‘The Wouters case law, special for a different reason?’, European Competition Law Review 2016 p. 338; A.W.A. Boot, M.A.P. Bovens & G.B.M. Engersen (ed.), Europese variaties (WRR-rapport nr. 99), Den Haag: WRR 2018, p. 106-107. 497 Thus, when Member States, for instance, prohibit the sale of castrated pig meat, this restriction of competition is based on a democratic mandate within the public interest, see: C. Janssen & E. Kloosterhuis, ‘The Wouters case law, special for a different reason?’, European Competition Law Review 2016 p. 335-339; ‘Reactie op de ontwerp- aangepaste beleidsregel Mededinging en Duurzaamheid’, SER-Adviezen 26 January 2016, www.ser.nl (search on: Reactie Mededinging en Duurzaamheid); J.C.M Jochemsen-Vernooij & S. van der Heul, ‘Dierenwelzijn in Nederland; civielrechtelijke regeling voor de ‘Kip van Morgen’, Tijdschrift voor Agrarisch Recht (10) 2015, p. 467-475; E. Kloosterhuis, 'Wouters: All in the Family?', Markt & Mededinging (3) 2016, p. 115-116; nevertheless, the Dutch competition authority allowed the restriction of non-anaesthetised castrated pigs without a political mandate. This practice, however, is controversial and debated, see: M.E.G. Litjens, ‘Kleine ingreep: Een onversneden prijsafspraak en ongesneden biggen’ , Markt & Mededinging (5) 2009, p. 161-165. 498 Verloren van Themaat also distinguishes between legislative interference, such as the Dutch ‘Bagatelregeling’ within Article 7 Dutch Competition Act, and execution policies by competition authorities, see: W. Verloren van Themaat, 'Politiek en mededinging', Markt & Mededinging (5) 2018, p. 198-199; see by analogy the protection of data within EU competition law, in: F.A. Costa-Cabral and O. Lynskey, 'Family Ties: The intersection of data protection and competition law in EU law', Common Market Law Review (54) 2017, p. 48 (supra. 198). 499 A. Gerbrandy, ‘Solving a Sustainability-Deficit in European Competition Law’, World Competition (40) 2017, p. 548; F.A. Costa-Cabral and O. Lynskey, 'Family Ties: The intersection of data protection and competition law in EU law', Common Market Law Review (54) 2017, p. 48; B. Baarsma & N. Rosenboom, ‘A veritable tower of Babel: on the confusion between the legal and economic interpretations of Article 101(3) of the Treaty on the Functioning of the European Union’, European Competition Journal (11), 2015; C. Townley, Article 81 EC and Public Policy, Oxford and Portland: Hart 2009, p. 102, 148-155.

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Nevertheless, the application of Wouters is restricted.500 Firstly, the measure needs to be suitable and necessary as it restricts Article 34 TFEU.501 Secondly, given the extensive harmonisation regarding farm animal welfare, the possibility to enact domestic measures is limited. Thirdly, the principle of loyalty precludes Member States to delegate legislative responsibility to private undertakings that affect the economic sphere. 502 Hence, EU competition law should allow Member States to balance economic objectives against animal welfare objectives and to enact domestic policies that impose obligations on undertakings.503 5.5 Conclusion The conclusion of this chapter is provided in this paragraph and provides an answer to the following question:

To which extent can Member States, with regard to the provisions on the functioning of the internal market, adopt domestic laws to protect animal welfare in their agricultural sector?

Member States can impose stricter domestic measures, but the free movement of goods restricts them to impose import and export restrictions. Moreover, the Wouters-derogation enables Member States to derogate from EU competition law by imposing animal welfare obligations on undertakings through public law.

Of course, animal welfare could be interpreted by the CJEU as a mandatory requirement or an inherent part of the animal health-ground within Article 36 TFEU. In case the CJEU perceives animal welfare as an inherent part of Article 36 TFEU, Member States could thereby also invoke the precautionary principle. The problem is that both Article 36 TFEU and mandatory requirements do not apply in case of full harmonisation or a market access clause. The Keck-exemption also allows Member States to enact non- discriminatory selling arrangements concerning the advertising requirements of animal products. However, the Keck-derogation is applied restrictively by the CJEU and requires a high burden of proof.

500 From a pragmatic perspective, the interference by Member States within the market subjects them to intensive legislative and administrative pressure in order to provide for the optimal conditions and flanking policies. 501 This analogical to the proportionality-assessment of Article 36 TFEU, see its application in: CJEU 19 February 2002, C-309/99, ECLI:EU:C:2002:98 (Wouters/the Netherlands), paras. 97, 101-110; CJEU 4 September 2014, C-184/13 to C‑187/13, C‑194/13, C‑195/13 & C‑208/13, ECLI:EU:C:2014:2147 (API), paras. 46, 48, 51, 53, 55-57; CJEU 18 July 2006, C-514/04 P, ECLI:EU:C:2006:492 (Meca-Medina/Commission), paras. 25-26, 42-43; A. Ezrachi, EU Competition Law: An Analytical Guide to the Leading Cases, Oxford and Portland: Hart Publishing 2016, p. 122; C. Barnhard & S. Peers (eds.), European Union Law, Oxford: Oxford University Press 2017, p. 512, 518-519. 502 Article 4 (3) TEU in conjunction with Article 101 TFEU; CJEU 4 September 2014, C-184/13 - C-187/13, C-194/13, C-195/13 & C-208/13, ECLI:EU:C:2014:2147 (API), para. 29. 503 Secondary law should therefore provide a derogation scheme from Article 101(1) TFEU on the basis of animal welfare objectives. This facilitates Member States to enact domestic legislation that allows animal welfare initiatives by private undertakings without violating EU competition law. Of course, more legal research is required to provide such a scheme. For example, the proposal for the CAP Strategic Plans incorporates animal welfare as one the objectives of the CAP, which could legitimize a CAP derogation from competition law, see: rec. 17, 21 & Article 6(1)(i) Proposal for a Regulation on CAP Strategic Plans (COM/2018/392 final); see also: A. Gerbrandy, ‘Rethinking Competition Law within the European Economic Constitution’, Journal of Common Market Studies (57) 2019, p. 132; S.A.C.M. Lavrijssen, ‘What role for National Competition Authorities in Protecting Non-competition Interests after Lisbon?’, European law review (37) 2010, p. 634-659; see by analogy: S.A. de Vries, ‘Balancing Fundamental Rights with Economic Freedoms According to the European Court of Justice’, Utrecht Law Review (9) 2013, p. 172.

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With regard to the principle of proportionality, case-law indicates that in the absence of harmonisation animal welfare measures can be deemed suitable and necessary. In particular, because the Lisbon Treaty incorporated animal welfare as a provision of general application within the public interest.

Furthermore, Member States may adopt domestic provisions that reversely discriminate as long as they do not exclude products from other Member States. However, would Member States be willingly to restrict their domestic markets? Additionally, Member States can, in the light of Wouters, provide a derogation from competition law through public law, which obliges undertakings to protect animal welfare. These measures cannot be contrary to secondary law and need to comply with the principles of proportionality and loyalty. Thus, the ability of Member States to enact domestic animal welfare measures is restricted.

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6 CONCLUSION Based on the aforementioned chapters, this chapter answers the main question of this thesis:

What is the status of farm animal welfare within EU law and to which extent does it allow Member States to adopt domestic animal welfare laws?

The status of farm animals and their welfare requirements within EU law is ambiguous. On the one hand, EU farm animal welfare law provides a unique, yet fragmented, legal framework based on both utilitarian and deontological motives. It thereby changed the teleological perspective on animals by acknowledging them as sentient beings within EU primary law. On the other hand, the TFEU qualifies animals as products and does not include animal welfare as an objective of the CAP due to the focus on production-driven animal husbandry. Furthermore, EU law does not protect farm animal welfare effectively and lacks a common ideological perspective on the desired level of animal welfare

Article 13 TFEU thereby enshrines the protection of farm animal welfare within EU primary law, which enables the EU legislator and the CJEU to protect animal welfare effectively. It acknowledges constitutionally that animals have a general cognitive capacity to feel, perceive, and experience emotional states and a sense of awareness regarding their coping mechanism in respect to their environment. Therefore, Article 13 TFEU imposes a constitutional obligation on the EU and the Member States to pay full regard to the welfare requirements of animals within certain areas. This could enable EU institutions and Member States to annul legal acts in case animal welfare was not fully observed. Furthermore, Article 13 TFEU provides a regulatory competence to enact farm animal welfare measures. It also legitimizes the CJEU to protect animal welfare effectively within the boundaries of secondary law. Although the CJEU does not refer specifically to Article 13 TFEU, its reasoning implies that the CJEU nevertheless ensures the objective of Article 13 TFEU.

The protection of animal welfare within secondary animal welfare law is also inconclusive. Although legal instruments improved farm animal welfare, the outdated framework cannot protect animal welfare effectively within the current economic context in which animal husbandry operates. On paper, secondary farm animal welfare law provides animal-based benchmarks and observes the four different welfare objectives, though, not always integrally. However, EU farm animal welfare protection lacks effective enforcement and provides no legal incentives to ensure the highest level of animal welfare. Most instruments thereby provide minimum provisions, which only apply to Member States. These minimum provisions do not provide an ‘interest-based’ framework that observes the four animal welfare requirements integrally. This caused by the economic context in which animal husbandry operates. The focus of the CAP on mass production and increasing productivity results in high stocking densities and productivity-driven agriculture. Given the status of animals as sentient beings, this product-based notion of animals and productivity-based animal husbandry is becoming untenable.

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With regard to the Member States, it can be concluded that they have limited possibilities to enact domestic provisions. For sure, reverse discrimination allows Member States to impose higher standards. Furthermore, the Wouters-exception allows Member States to provide a derogation from EU competition law based on public law, which obliges undertakings to protect animal welfare. However, both measures cannot preclude the free movement of goods. Although the CJEU could regard animal welfare as a mandatory requirement to legitimately restrict the free movement of goods, its application is very restricted. This is because most areas concerning farm animal welfare are already harmonized.

So, how can EU law safeguard the sentient nature of animals and their welfare requirements adequately? To start with, animal husbandry should be ‘interest-based’ and focus less on mass production. Therefore, the CAP should be reformed by including animal welfare as one of its objectives and acknowledge animals as members of the agricultural community. Membership observes the role of animals within the agricultural economy, but also imposes an obligation on the community to protect animal welfare. Current animal welfare instruments should be updated according to recent scientific insights and abolish practices or methods that cause substantial suffering.

Furthermore, the EU should also adopt a general animal welfare regulation to improve animal welfare protection based on the following conditions. The regulation should focus on protecting the four animal welfare objectives integrally and incorporate Gygax’s & Hillmann’s concept of ‘naturalness’ as the basis of “good” animal welfare. In addition to the current framework, the regulation should address genetic selection to improve animal welfare, phase out harmful genetic features, prohibit the instant slaughter due to non-economic viability, and observe climate change issues. Moreover, the regulation should impose a duty of care on Member States by incorporating the precautionary principle and impose a duty to improve. Additionally, it should integrate the principle of accountability to oblige private parties to actively demonstrate compliance with animal welfare measures. The regulation should also provide a derogation scheme from Article 101(1) TFEU to protect animal welfare objectives. This facilitates Member States to enact domestic legislation that allows private undertakings to develop animal welfare initiatives without violating EU competition law. Next, the regulation should establish independent animal welfare authorities to ensure adequate enforcement. Moreover, the names and corresponding enforcement actions of the offending business operators should be published. Also, the regulation should impose civil liability on business operators by allowing private damage claims from supply chain partners. Lastly, the regulation should allow interest groups to have a stance in court to enable judicial review of animal welfare provisions. Judges should thereby assess the effectiveness and necessity of a measure, in light of Article 13 TFEU.

Finally, humanity’s ability to create intersubjective entities enables more stringent protection of animal welfare. However, although scientific insights influence society’s perspective on animal welfare, animal welfare is also value-based and thus cannot rely solely on animal welfare science. Therefore, the EU should clarify its moral stance on animal welfare by establishing its desired level of animal welfare and quantify certain benchmarks. Hence, EU law does not protect farm animal welfare conclusively but does provide the means to improve and enhance it to safeguard the status of animals as sentient beings.

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CASE-LAW REGISTER

EU case-law

 CJEU 31 March 1970, C-22/70, ECLI:EU:C:1971:32 (ERTA).  CJEU 17 July 1973, C-2/73, ECLI:EU:C:1973:89 (Geddo/Ente).  CJEU 4 December 1974, C-41/74, ECLI:EU:C:1974:133 (Van Duyn).  Conclusion A-G Léger 15 July 1977, C-1/96, ECLI:EU:C:1997:365 (UK/Compassion in World Farming).  CJEU 25 January 1977, C-46/76, ECLI:EU:C:1977:6 (Bauhuis).  CJEU 27 October 1977, C-30/77, ECLI:EU:C:1977:172 (Bouchereau).  CJEU 9 March 1978, C-106/77, ECLI:EU:C:1978:49 (Simmenthal).  CJEU 23 November 1978, C-7/78, ECLI:EU:C:1978:209 (Thompson).  CJEU 20 February 1979, C-120/78, ECLI:EU:C:1979:42 (Cassis de Dijon).  CJEU 11 July 1974, C-8/74, EU:C:1974:82 (Dassonville).  CJEU 8 November 1979, C-15/79, ECLI:EU:C:1979:253 (Groenveld).  CJEU 14 December 1979, C-34/79, ECLI:EU:C:1979:29 (Henn & Darby).  CJEU 19 January 1982, C-8/81, ECLI:EU:C:1982:7 (Becker/Germany).  CJEU 1 April 1982, C-141/81 – C-141/83, ECLI:EU:C:1982:122 (Holdijk).  CJEU 7 February 1985, C-240/83, ECLI:EU:C:1985:59 (ADBHU).  CJEU 25 February 1986, C-152/84, ECLI:EU:C:1986:84 (Marshall).  CJEU 11 March 1986, C-121/85, ECLI:EU:C:1986:114 (Conegate).  CJEU 23 February 1988, C-131/86, ECLI:EU:C:1988:86 (U.K./Council).  CJEU 20 September 1988, C-302/86, ECLI:EU:C:1988:421 (Commission/Denmark).  CJEU 22 September 1988, C-187/87, ECLI:EU:C:1988:439 (Saarland v. Minister for Industry).  CJEU 21 September 1989, C-68/88, ECLI:EU:C:1989:339 (Commission/Greece).  CJEU 23 May 1990, C-169/89, ECLI:EU:C:1990:227 (Van den Burg).  CJEU 13 November 1990, C-331/88, ECLI:EU:C:1990:391 (Fedesa/UK).  CJEU 9 June 1992, C-47/90, ECLI:EU:C:1992:250 (Delhaize/Promalvin).  CJEU 2 July 1992, C-2/90, ECLI:EU:C:1992:310 (Walloon-case).  CJEU 22 June 1993, C-11/92, ECLI:EU:C:1993:262 (Gallaher).  CJEU 24 November 1993, C-267/91 & C-268/91, ECLI:EU:C:1993:905 (Keck).  CJEU 3 December 1998, C-67/97, ECLI:EU:C:1998:584 (Bluhme).  CJEU 13 July 1994, C-131/93, ECLI:EU:C:1994:290 (Crayfish).  CJEU 14 July 1994, C-91/92, ECLI:EU:C:1994:292 (Faccini Dori).  CJEU 9 February 1995, C-412/93, ECLI:EU:C:1995:26 (Leclerc-Siplec).  CJEU 23 May 1996, C-5/94, ECLI:EU:C:1996:205 (Hedley Lomas).  CJEU 19 March 1998, C-1/96, ECLI:EU:C:1998:113 (United Kingdom/Compassion in World Farming).  CJEU 3 December 1998, C-67/97, ECLI:EU:C:1998:584 (Bluhme),  CJEU 11 May 1999, Case C-350/97, ECLI:EU:C:1999:242 (Monsees).  CJEU 11 July 2000, C-473/98, ECLI:EU:C:2000:379 (Toolex Alpha).  CJEU 5 October 2000, C-376/98, ECLI:EU:C:2000:544 (Germany/Parliament & Council (tobacco advertising I).

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 CJEU 12 July 2001, C-189/01, ECLI:EU:C:2001:420 (Jippes/Netherlands).  CJEU 9 October 2001, C-377/98, ECLI:EU:C:2001:523 (Netherlands/Parliament & Council).  CJEU 19 February 2002, C-309/99, ECLI:EU:C:2002:98 (Wouters/the Netherlands).  GCEU 26 November 2002, T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00 & T-141/00, ECLI:EU:T:2002:283 (Artegodan/Commission).  CJEU 10 December 2002, C-491/01, ECLI:EU:C:2002:741 (British American Tobacco/UK).  CJEU 20 May 2003, C-469/00, ECLI:EU:C:2003:295 (Ravil/Bellon Import).  CJEU 11 September 2003, C-211/01, ECLI:EU:C:2003:452 (Commission/Council).  CJEU 23 September 2003, C-192/01, ECLI:EU:C:2003:492 (Denmark/Commission).  CJEU 12 November 1996, C-84/94, ECLI:EU:C:1996:431 (UK/Commission).  CJEU 11 December 2003, C-322/01, ECLI:EU:C:2003:664 (DocMorris/Germany).  CJEU 1 April 2004, C-236/01, ECLI:EU:C:2004:212 (Monsanto Agricoltura Italia).  CJEU 14 December 2004, C-210/03, ECLI:EU:C:2004:802 (Swedish Match).  CJEU on public health: CJEU 12 July 2005, C-154/04 & C-155/04, ECLI:EU:C:2004:848 (Alliance for Natural Health and Others).  CJEU 15 February 2005, C-12/03 P, ECLI:EU:C:2005:87 (Tetra Laval).  Conclusion A-G Geelhoed 17 July 2005, C-320/03, ECLI:EU:C:2005:459 (Commission/Austria).  CJEU 18 July 2006, C-514/04 P, ECLI:EU:C:2006:492 (Meca-Medina/Commission).  CJEU 7 September 2006, C-310/04 ECLI:EU:C:2006:521 (Spain/Council).  CJEU 12 December 2006, C-380/03, ECLI:EU:C:2006:772 (Germany/ Parliament (tobacco advertising II).  CJEU 18 July 2007, C-490/04, ECLI:EU:C:2007:430 (Commission/Germany).  CJEU 17 January 2008, C-37/06 & C-58/06, ECLI:EU:C:2008:18 (Viamex & ZVK).  CJEU 8 May 2008, C-491/06, ECLI:EU:C:2008:263 (Danske Svineproducenter).  CJEU 19 June 2008, C-219/07, EU:C:2008:353 (Andibel).  CJEU 1 December 2008, C-205/07, ECLI:EU:C:2008:730 (Gysbrechts).  CJEU 10 February 2009, C-110/05, ECLI:EU:C:2009:66 (Commission/Italy).  CJEU 4 June 2009, C-8/08, ECLI:EU:C:2009:343 (T-Mobile, KPN, Orange, Vodafone/NMa).  CJEU 4 June 2009, C-142/05, ECLI:EU:C:2009:336 (Mickelsson and Roos).  CJEU 8 September 2009, C-42/07, ECLI:EU:C:2009:519 (Liga Portuguesa de Futebol Profissional).  CJEU 10 September 2009, C-100/08, ECLI:EU:C:2009:537 (Commission/Belgium).  CJEU 6 October 2009, C-501/06 P, C-513/06 P, C-515/06 P & C-519/06 P, ECLI:EU:C:2008:738 (EAEPC/GlaxoSmithKline).  CJEU 16 December 2010, C-137/09, ECLI:EU:C:2010:774 (Josemans/Burgemeester van Maastricht).  CJEU 27 March 2012, C-209/10, ECLI:EU:C:2012:172 (Post Danmark I).  CJEU 12 July 2012, C-171/11, ECLI:EU:C:2012:453 (Fra.Bo).  CJEU 27 November 2012, C-370/12, EU:C:2012:756 (Pringle).  GCEU 12 April 2013, T-31/07, ECLI:EU:T:2013:167 (De Pont de Nemours France/Commission).  GCEU 25 April 2013, T-526/10, ECLI:EU:T:2013:215 (Commission/Inuit Tapiriit Kanatami II).  CJEU 17 October 2013, C-101/12, ECLI:EU:C:2013:661 (Schaible).  GCEU 16 September 2013, T-333/10, ECLI:EU:T:2013:451 (ATC/Commission).  CJEU 24 June 2014, C-658/11, ECLI:EU:C:2014:2025 (European Parliament/European Commission).

147

 CJEU 4 September 2014, C-184/13 to C-187/13, C-194/13, C-195/13 & C-208/13, ECLI:EU:C:2014:2147 (API).  CJEU 11 September 2014, C-382/12 P, ECLI:EU:C:2014:2201 (MasterCard/Commission).  Conclusion A-G Bot 11 September 2014, C-424/13, ECLI:EU:C:2014:2216 (Zuchtvieh).  CJEU 14 October 2014, C-36/02, ECLI:EU:C:2004:614 (Omega).  CJEU 25 April 2015, C-424/13, EU:C:2015:259 (Zuchtvieh).  CJEU 16 June 2015, C-62/14, ECLI:EU:C:2015:400 (Gauweiler).  CJEU 18 June 2015, C-508/13, ECLI:EU:C:2015:403 (Estonia/Parliament and Council).  CJEU 3 September 2015, C-398/13 P, ECLI:EU:C:2015:535 (Commission/Inuit Tapiriit Kanatami II).  CJEU 6 October 2015, C-354/14, ECLI:EU:C:2015:658 (Capoda Import-Export).  CJEU 23 December 2015, C-333/14, ECLI:EU:C:2015:845 (Scotch Whisky Association).  Conclusion A-G Wahl 21 January 2016, C-469/14, ECLI:EU:C:2016:47 (Masterrind).  Conclusion A-G Bobek 17 March 2016, C0592/14, ECLI:EU:C:2016:179 (EFfCI/United Kingdom).  CJEU 4 May 2016, C-547/14, ECLI:EU:C:2016:325 (PMI, BTA/UK).  CJEU 21 September 2016, C-592/14, ECLI:EU:C:2016:703 (European Federation for Cosmetic Ingredient/UK).  Conclusion A-G Wahl 30 November 2017, C-426/16, ECLI:EU:C:2017:926 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others).  CJEU 27 February 2018, C-34/16, ECLI:EU:C:2018:117 (Associação Sindical dos Juízes Portugueses).  CJEU 17 April 2018, C-441/17, EU:C:2018:255 (Commission/Poland (Białowieża Forest).  GCJEU 17 May 2018, T-429/13 & T-451/13, ECLI:EU:T:2018:280 (Bayer, Syngenta / Commission).  CJEU 29 May 2018, C-426/16, EU:C:2018:335 (Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others).  CJEU 14 June 2018, C-169/17, ECLI:EU:C:2018:440 (the Association/Spain).  CJEU 25 July 2018, C-239/17, ECLI:EU:C:2018:597 (Teglgaard & Fløjstrupgård/Fødevareministeriets Klagecenter).  CJEU 7 August 2018, C‑122/17, EU:C:2018:631 (Smith), paras. 42-43.  Conclusion A-G Wahl 20 September 2018, C-497/17, ECLI:EU:C:2018:747 (OABA/France).  CJEU 6 November 2018, C-569/16 & C-570/16, ECLI:EU:C:2018:871 (Bauer & BroBroßonn).  CJEU 7 November 2018, C-293/17 & C-294/17, ECLI:EU:C:2018:882 (Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu & Stichting Werkgroep Behoud de Peel/Provincial Governments of Gelderland & Limburg).  CJEU 20 November 2018, C-626/15 & C-659/16, ECLI:EU:C:2018:925 (European Commission/Council).  CJEU 26 February 2019, C-497/17,ECLI:EU:C:2019:137 (OABA/France).

Dutch case-law  Amsterdam District Court 12 March 2019, ECLI:NL:RBAMS:2019:1942 (Greenpeace/Ministry of Agriculture, Nature and Quality of Food).  Conclusion A-G P.J. Wattel 11 March 2020, ECLI:NL:RVS:2020:738 (Greenpeace/Ministry of Agriculture, Nature and Quality of Food).

148

PROPOSALS & POLICY DOCUMENTS OF THE EUROPEAN UNION

European Commission, 1985 European Commission, Completing the Internal Market: White Paper from the Commission to the European Council (COM1985/310/final).

European Commission, 1989 Commission proposal concerning minimum standards for the protection of calves kept in intensive farming systems (COM(89)114 final).

European Commission, 1989 Commission Proposal for a Council Regulation on the protection of animals during transport (COM(89)322 final).

European Commission, 1989 Commission proposal concerning the protection of pigs in intensive farming systems (COM(89)115 final).

European Commission, 1998 Commission Proposal for a Council Directive laying down minimum rules for the protection of laying Hens (COM(1998)135, final).

European Commission, 1989 Commission proposal concerning the protection of animals during transport (COM(89)322 final).

European Commission, 2000 Commission Communication from the Commission on the precautionary principle (COM/2000/1 Final).

European Commission, 2005 Commission Proposal for a Council Directive laying down minimum rules for the protection of chickens kept for meat production (COM/2005/221 Final).

European Commission, 2005 European Commission, Animal welfare in the EU: celebrating the past, preparing for the future, Animal Welfare News June 2005.

European Commission, 2006 Commission staff working document on a Community Action Plan on the Protection and Welfare of Animals 2006-2010, SEC(2006)65.

European Commission, 2006 Community Action Plan on the Protection and Welfare of Animals 2006-2010 (COM(2006)13 Final).

149

European Commission, 2008 Commission Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products (COM/2008/469 final),

European Commission, 2008 Commission Proposal for a Directive on the protection of animals used for scientific purposes (COM(2008)543 Final).

European Commission, 2008 Commission Proposal for a Council Regulation on the protection of animals at the time of killing, (COM(2008)553 final).

European Commission, 2012 The European Union Strategy for the Protection and Welfare of Animals 2012-2015, COM(2012)6 final.

European Commission, 2012 Commission Proposal for a General Data Protection Regulation, COM(2012)11 final

European Commission, 2016 European Commission, Follow-up to the European Parliament resolution of 14 March 2017 on minimum standards for the protection of farm rabbits (2016/2077(INI)), SP(2017)390.

European Commission, 2017 European Commission, Follow-up to the European Parliament resolution of 14 March 2017 on minimum standards for the protection of farm rabbits (2016/2077(INI)), SP(2017)390.

European Commission, 2018 Commission Proposal for a Regulation establishing rules on support for strategic plans to be drawn up by Member States under the Common agricultural policy (CAP Strategic Plans), COM(2018)392 final.

150

European Parliament, 1977-1978 Debates of the European Parliament, 1977–1978 Session (Report of Proceedings from 8 to 11 March 1977).

European Parliament, 1984 Draft Treaty Establishing The European Union, Resolution of the European Parliament 14 February 1984 on the draft Treaty establishing the European Union (OJ, C 77/33).

European Parliament, 1985 Resolution of the European Parliament on animal welfare policy 12 July 1985, (OJ C 229/147).

European Parliament, 1985 Resolution by Woltjer’, Doc. 2-8007/84, in: R.J. Simmonds, Interim Report drawn up on behalf of the Committee on Agriculture, Fisheries and Food on animal welfare policy, Doc. A-262/85, 1985-86.

European Parliament 1985 R.J. Simmonds, Interim Report drawn up on behalf of the Committee on Agriculture, Fisheries and Food on animal welfare policy, Doc. A-262/85, 1985-86.

European Parliament, 1987 Resolution of the European Parliament on animal welfare policy 20 February 1987 (OJ C 76/185).

European Parliament, 1987 Debates of the European Parliament, 1977–1978 Session (Report of Proceedings from 8 to 11 March 1977).

European Parliament, 2017 Resolution 14 March 2017 on minimum standards for the protection of farm rabbits 2016/2077(INI).

European Parliament, 2017 Debates European Parliament, CRE 13/03/2017 – 16, Vera Jourová (see debate at: 21:48:27 – 21:52:01).

European Parliament, 2018 European Parliament Resolution 25 October 2018 on Animal welfare, antimicrobial use and the environmental impact of industrial broiler farming, 2018/2858 (RSP).

European Parliament, 2019 European Parliament, Committee on Agriculture and Rural Development 31 December 2019, A8- 0057/2019.

European Parliament, 2019 European Parliament Resolution 14 February 2019 on the implementation of Council Regulation (EC) No 1/2005 on the protection of animals during transport within and outside the EU, 2018/2110 (INI).

151

European Union Reference Centre for Animal Welfare ‘European Union Reference Centre for Animal Welfare’, http://ec.europa.eu (search on: Reference Centre for Animal Welfare).

Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, 2009 Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (PbEU 2009, C 45/7).

Guidelines on the application of Article 81(3) of the Treaty, 2004 Guidelines on the application of Article 81(3) of the Treaty (PbEU 2004, C 101/97).

Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, 2004 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (PbEU 2004, C 31/5).

Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2015 Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation (2015).

Legislative aspects of farm animal welfare ‘Legislative aspects of farm animal welfare’, European Commission, https://ec.europa.eu (search on: Animal welfare).

152