Does the EU legislation on the protection of farm animals protect their welfare?

Moci Ntisstrom

Introduction

Article 13 Treaty of the Functioning of the European Union (TFEU) states that:

In formulating and implementing the Union’s agriculture...(and) internal market...policies, the Union, and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals.[1]

(emphasis added)

Consequently, EU primary law recognises all animals as sentient beings. A sentient being is aware of its surroundings, what is happening to it, is able to learn from experience, and aware of sensations in their bodies; for instance, pain, heat, cold or hunger. Sentient beings also relate to other beings - including humans - and show awareness of their environment. While opinions differ regarding whether it means that animals’ welfare is an intrinsic value in itself, the fact remains that the animals’ sentience is legally recognised to matter and their welfare requirements must be considered. However, farm animals - which are covered by Article 13 TFEU - are simultaneously classed as tradable goods and thereby subject to Internal Market provisions and the Free Movement of Goods acquis. This dual classification, that of sentient animals and tradable goods creates an inherent tension as legislation applicable to goods are rarely appropriate to apply to sentient beings. Nonetheless, it is the legal framework which the animals are subject to. It should be noted, that would an issue arise where the Internal Market and Free Movement of Goods provisions are in conflict with animal welfare provisions, case law indicates that the Internal Market provisions would triumph. The EU has chosen to regulate farm animals within the Goods provisions through the

use of directives and minimum harmonisation. The legislation applicable to farm animals on the farm are four[2] Directives (98/58/EC, 1999/74/EC, 2007/43/ EC and 2008/102/EC) all of which have one conspicuous commonality; their titles all refer to laying down rules or standards for the protection of the farm animals - not their welfare. Yet, the EU present it as legislation regarding animal welfare on the farms.

This raises the question as to whether the protection referred to in the titles of the Directives actually refer to protection, rather than welfare. This article explores the question of whether the EU legislation on the protection of farm animals actually do protect their welfare or not. This is answered by a discussion around the problem with the lack of a clear definition of what the concept of animal welfare means, before a thematic examination of the legislation from a zoocentric perspective. A zoocentric perspective allows for an analysis of the legislation with an emphasis on how the animals perceive, interpret, and respond to their environment, as it is the legislation which regulates their environment. It should also be highlighted that this chapter addresses animal welfare, and not animal rights, as the author argues that welfare and rights are two inherently different concepts and topics.

  • [1] Consolidated version of the Treaty on the Functioning of the European Union [2012] Of C326/47, Article 13 (hereinafter TFEU). 2 L. Vilkka, The Intrinsic Value of Nature (Rodopi, 1997), 37. 3 C-1 /96 R v. Minister of Agriculture Fisheries and Food ex parte Compassion in World Farming [1998] ECLI:EU:C:1998:113, C-5/94 R v. Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd. [1996] ECLI:EU:C:1996:205.
  • [2] There are also slaughter (Council Directive 93/119/EC) and transport (Council Regulation (EC) No 1/2005), but they do not concern the farm animals while they are on the farm. 2 European Commission, ‘Animal welfare on the farm’ (European Commission), https://ec .europa.eu/food/animals/welfare/practice/farm_en, accessed on 20 January 2019. 3 Vilkka, The Intrinsic Value of Nature, (n. 2) 37. 4 Longer discussion, see Moa Nasstrom, ‘Farm Animal Welfare in the European Union - A Critical Analysis’ (PhD Thesis, University' of Leeds, 2016), at 1.2. 5 Selection of extensive literature: S.M. Wise, Rattling the Cage Toward Legal Rights for Animals (De Capo Press, 2014); J. Zeis, The Rights of Pigs and Horses (Blackwell Publishing Ltd., 2012); F. Bailey Norwood, J.L. Lusk, Compassion, by the Pound Economics of Farm Animal Welfare (OUP, 2011); M.C. Appleby, ‘Whom should we eat? Why' veal can be better for welfare than chicken’ in M.C. Appleby, D.M. Weary, P. Sandoe (eds.), Dilemmas in Animal Welfare (CABI International, 2014), 6.3. 6 R. Garner, ‘Animal Protection and Legislation in Britain and the United States,* The Journal of Legislative Studies 5(2) (1999): 92, 93-94. 7 J. Vapnek, M. ‘Chapman, Legislative and regulatory options for animal welfare’ (Food and Agriculture Organisation of the United Nations, 2010), 1.3.
 
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