Inconsistent treatment: The inherent paradox

The Treaty on the Functioning of the European Union recognizes animals as sentient beings and requires the EU and its Member States to pay full regard to the welfare of animals when formulating and implementing policies on agriculture, transport, and fisheries (Art. 13 TFEU). The fact that such compelling wording was included in the fundamental EU treaties may seem to ensure a solid framework for the creation of secondary law in which the protection of animals is guaranteed. However, this is not the case. Just to provide the first among other examples that will be discussed in the following subsections, Directive 98/58/EC requires that animals are fed a wholesome diet appropriate to their species, in sufficient quantity to maintain them in good health²⁰⁰ and that animals are fed at intervals appropriate to their physiological needs²⁰¹. It also states that ‘no animal shall be provided with food or liquid in a manner, nor shall such food or liquid contain any substance, which may cause unnecessary suffering or injury’²⁰². Nevertheless, the commercial practice of force-feeding ducks and gooses with metal tubes until they become ill and their organs abnormally enlarged is common and legal in the EU. Foie gras is a luxury food product whose very existence inarguably depends on a bird being overfed and ill²⁰³.

Despite the imperative words of article 13 TFEU and Directive 98/58/EC, the lawfulness of foie gras production derives from the fact that EU laws go only partway on securing animal welfare. Regardless of recognising animals as sentient beings in its primary law and establishing ambitious minimum standards in its secondary law, the EU essentially regards animals as legal things with special interests in need of protection²⁰⁴. It is true that some EU countries, such as Austria and the Netherlands, affirm quite the opposite.

The Austrian Civil Code §285a establishes that ‘animals are not things; they are protected

200 Annex, paragraph 14.

201 Annex, paragraph 15.

202 Annex, paragraph 14.

203 Gille, 2016.

204 Aaltola – Wahlberg, 2015.

by special laws’²⁰⁵. The final part of the provision then almost paradoxically states that

‘regulations that apply to things are applicable to animals insofar as there are no deviating regulations’²⁰⁶. Similarly, book 3 ok the Dutch Civil Code, on property law in general, expressly states that ‘animals are not things’²⁰⁷. The subsequent provision foresees that the law ‘relating to things are applicable to animals, with due observance of the limitations, obligations, and legal principles based on statutory rules and rules of unwritten law, as well as of public order and public morality’²⁰⁸. Nonetheless, to what extent are these jurisdictions able to translate such ideas into structural changes that reflect in the practical treatment of animals is a separate matter of discussion. In practical terms, in all places of the world animals are subjected to the property regime and, as such, are tradable, alienable, and exploitable²⁰⁹. Furthermore, although animals are eventually held as ‘non-things’ in some jurisdictions, it remains unclear which legal status they hold instead.

What should be highlighted, however, is that the fundamental status of animals under EU law is of objects that, despite being granted a certain level of protection, are invariably treated for their character of human property. When animals are treated as property, the function of animal welfare law is to protect an animal’s integrity only to the extent of its economic value²¹⁰. Whilst EU secondary law prohibits animals from being inflicted with unnecessary pain, suffering, or injury²¹¹, the question that remains is: what are the limits of what is considered necessary?²¹² The focal point is in that the law invariably regulates the treatment of animals from an anthropocentric perspective rather than from a zoocentric one, in which the interests of species are properly taken into account. The way

205 Österreichisches Zivilgesetzbuch (Austrian Civil Code), § 285a, entry into force and transitional provisions from 01/02/2013, available at

https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10001622 (accessed on 01/03/2021).

206 Idem.

207 Nederlands Burgerlijk Wetboek Boek 3, (Dutch Civil Code, Book 3), article 2a (1).

208 Nederlands Burgerlijk Wetboek Boek 3, (Dutch Civil Code, Book 3), article 2a (2).

209 Brels, 2016.

210 Morfuni, 2011.

211 Directive 98/58/EC, Article 3; annex, paragraph 7 and 14.

212 A draft answer to this question is elaborated on section 4.1.3.

animals are categorized in the EU law does not follow the scientific classification of species but rather their use for humans’ benefit.

For instance, in an ideal fair scenario, the protection of rabbits would be consistent throughout the whole legislative system of a given jurisdiction, and the protective provisions would be based on the specific needs of the species. In practice, however, rabbits might be classified into a variety of different legal scenarios depending on their purpose for humans. A rabbit might be a farm animal, a lab animal, a pet animal, a wild animal, a pest, a prey, a sport animal, an animal used for entertainment in circuses, or a zoo animal, and thereby be subject to different forms of treatment and different legal instruments defining what constitutes ‘(un)necessary suffering’ for them²¹³. Whilst it would not be permissible to force-feed a pet duck deliberately until it becomes ill, the same conduct is permissible if the duck is a farm animal. Likewise, while it would not be lawful to keep a pet dog continuously confined within a small steel cage and to perform painful procedures on it, the same would be deemed justifiable if a laboratory was testing a new pesticide²¹⁴. This is an inherent paradox, meaning that the law prioritizes the use of animals at the cost of the animal itself²¹⁵. In other words, the point of reference is not the animal, but the ‘culturally produced category in which it belongs’²¹⁶.

Interestingly in this regard, Aaltola – Wahlberg argued that while the discourse in human ethics makes use of terms such as ‘duty’, ‘right’, ‘justice’, and ‘responsibility’, the terminology adopted when it comes to animal welfare provisions imply a connotation of voluntarism, as in the case of ‘unnecessary pain’²¹⁷. Thus, even an action that inflicts way too much pain and suffering on an animal might be customarily accepted if considered

‘necessary’ from an anthropocentric or even an economic point of view, and as such, it might be adopted as legal practice. It can be argued that animal ethics in a strict sense, then, is only truly exercised voluntarily, if an individual – an animal owner, for example

213 Aaltola – Wahlberg, 2015.

214 The humane Society ‘HSUS undercover investigation shows beagles being poisoned with pesticides and drugs, killed at animal testing lab’, 12 March 2019.

215 Aaltola – Wahlberg, 2015.

216 Aaltola – Wahlberg, 2015, p. 7.

217 Aaltola – Wahlberg, 2015.

– feels inclined to do more than the law requires from him. But it is not in the scope of this thesis to draw the difference between animal law and animal ethics. The focus here is to point out how the welfarist approach of the EU law evades core questions on the moral treatment of animals and fails to provide the beings it recognises as sentient with proper moral and legal consideration. The following subsections analyse some commercial practices in the EU that, despite being held as lawful, notoriously contradict article 13 TFEU, in which they imply evident serious animal welfare problems.