2. LEGAL FRAMEWORK
2.2 Animal welfare under EU law 16
2.2.4 Wild animals
Finally, concerning wild animals, despite the vast provisions in EU law, just as it happens in the international animal law, most of the instruments affecting wild animals have a
79 Regulation (EU) 2019/1010 of the European Parliament and of the Council of 5 June 2019 on the alignment of reporting obligations in the field of legislation related to the environment, and amending Regulations (EC) No 166/2006 and (EU) No 995/2010 of the European Parliament and of the Council, Directives 2002/49/EC, 2004/35/EC, 2007/2/EC, 2009/147/EC and 2010/63/EU of the European Parliament and of the Council, Council Regulations (EC) No 338/97 and (EC) No 2173/2005, and Council Directive 86/278/EEC, PE/8/2019/REV/1, OJ L 170, 25.6.2019.
80Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products, OJ L 342, 22.12.2009.
81Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products, OJ L 262, 27.9.1976.
82 Treaty No.125, Strasbourg, 13/11/1987.
83 European Commission official website, ‘Animals’.
84 Regulation (EC) No 1523/2007 of the European Parliament and of the Council of 11 December 2007 banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur, OJ L 343, 27.12.2007.
rather conservative approach on species, which exceeds the limits of this study. However, relevant cross-sectoral provisions between conservation and animal welfare are found in the Birds Directive85, the Habitat Directive86, the Firearms Directive87, and in the Wild Game Meat Directive (1992)88, as those instruments play a relevant role in shaping hunting policies in the EU. According to the Birds Directive, for instance, all wild bird species in the EU are protected from deliberate killing or capture, disturbance, destruction of the nests and eggs. Additionally, Regulation 2019/1241 restricted the use of driftnets, which resulted in enhanced protection and welfare for certain marine animals89. Finally, Regulation 1007/2009/EC on the trade of seal products prohibited the placing of seal products in the EU market subjected to limited exceptions, as a response to the expressed concern with the welfare of seals during the hunt, killing, and skinning methods90. 2.3 Animal welfare legislation in the UK
EU law is deeply entangled within the UK’s domestic legal system. Around 80% of the UK domestic animal law comes from the EU91. The next section analyses the precise effects of being a member state of the EU in terms of law harmonization and the hierarchy
85 Directive 79/409/EEC, 1979, amended in 2009, when it became Directive 2009/147/EC of the
European Parliament and of the Council of 30 November 2009 on the conservation of wild birds OJ L 20, 26.1.2010.
86Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992.
87 Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons OJ L 256, 13.9.1991.
88 Council Directive 92/45/EEC of 16 June 1992 on public health and animal health problems relating to the killing of wild game and the placing on the market of wild-game meat, OJ L 268, 14.9.1992, repealed by Directive 2004/41/EC of the European Parliament and of the Council of 21 April 2004 repealing certain directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending council directives 89/662/EC and 92/118/EEC and Council Decision 95/408/EC, OJ L 157, 30.4.2004.
89 Regulation (EU) 2019/1241 of the European Parliament and of the Council of 20 June 2019 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures, amending Council Regulations (EC) No 1967/2006, (EC) No 1224/2009 and Regulations (EU) No 1380/2013, (EU) 2016/1139, (EU) 2018/973, (EU) 2019/472 and (EU) 2019/1022 of the European Parliament and of the Council, and repealing Council Regulations (EC) No 894/97, (EC) No 850/98, (EC) No 2549/2000, (EC) No 254/2002, (EC) No 812/2004 and (EC) No 2187/2005, PE/59/2019/REV/1, OJ L 198, 25.7.2019.
90 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products, OJ L 286, 31.10.2009.
91 Conservative Animal Welfare Foundation, 2017.
of laws. This is relevant before analysing the effects of leaving the EU. For now, the focus is on the substance of the domestic animal law in the UK before Brexit. To begin with, the UK was the first country in the world to implement animal protection laws92. The Act to Prevent the Cruel and Improper Treatment of Cattle, known as Martin’s Act was created in 1822, criminalizing the cruel treatment of certain domesticated animals, such as cattle and horses93. In 1911, the first general animal protection provision, namely the Protection of Animals Act94, was instituted and later replaced by the Animal Welfare Act95 in 2007, applicable only in England and Wales. The central instruments on animal welfare in Scotland and Northern Ireland are the Animal Health and Welfare Act96 (2006) and the Welfare of Animals Act97 (2011), respectively.
The Animal Welfare Act consolidated more than twenty pieces of animal protection legislation, including the mentioned Protection of Animals Act. The act applies to all vertebrate animals other than humans, with the possibility of extending its applicability to invertebrate animals ‘if the national authority is satisfied, on the basis of scientific evidence, that animals of the kind concerned are capable of experiencing pain or suffering’98. There is,however, an exemption for experimental animals, and for anything that occurs within the normal course of fishing99.
The World Animal Protection, an international not-for-profit animal welfare organization, shows the UK in the top position of their Animal Protection Index, together
92 Wise, S. M, 2016; BBC ‘Welfare law in the UK’, 2014.
93 Wise, S. M, 2016.
94 Protection of Animals Act 1911, An Act to consolidate, amend, and extend certain enactments relating to Animals and to Knackers; and to make further provision with respect thereto, 1911 Chapter 27 1 and 2 Geo 5, 18th August 1911.
95 Animal Welfare Act 2006, An Act to make provision about animal welfare; and for connected purposes, 2006 Chapter 45, 8th November 2006.
96 Animal Health and Welfare (Scotland) Act 2006, 2006 asp 11, An Act of the Scottish Parliament to amend the Animal Health Act 1981, including by making provision for preventing the spread of disease;
to make provision for the welfare of animals, including for prevention of harm; and for connected purposes. The Bill for this Act of the Scottish Parliament was passed by the Parliament on 31st May 2006 and received Royal Assent on 11th July 2006.
97 Welfare of Animals Act (Northern-Ireland) 2011, 2011 CHAPTER 16, An Act to make provision about animal welfare, 29th March 2011.
98 Animal Welfare Act 2006, Introductory chapter, ‘Animals to which the Act applies’.
99 Animal Welfare Act 2006 - Sections 58(1) and 59.
with Austria, Sweden, Denmark, the Netherlands, and Switzerland. This index rates animal welfare and conservation policies in fifty countries, measuring each nation’s efforts to improve animal welfare through legislation, sentience recognition, governance practices, and enactment of higher standards.100 This is a reflex of the UK’s agency in implementing more stringent measures beyond EU minimum standards. For instance, whilst there is currently no EU legislation on the welfare of animals used in circuses, the UK government has passed a ban on the use of wild animals in travelling circuses in England, which came into force in January 2020101. A similar ban came into force in Wales very recently, in December 2020, passed with unanimously support by the Welsh Government102. Likewise, wild-animal circuses have been banned in Scotland in May 2018103. Albeit no ban has been imposed by Northern Ireland so far, the country has no resident circuses with wild animals104.
In addition, in 1985 the UK Department of the Environment commissioned a biological research on the keeping of cetaceans for recreational purposes after concerns brought by certain animal welfare groups105. The scientific report brought recommendations that were enacted in the legislation, and as none of the dolphinariums met the new minimum requirements, all remaining facilities were closed106. As a result, no cetaceans are currently held in captivity in the UK107. Other relevant provisions on the welfare of wild animals in the UK are expressed in the Wild Mammals Act108, the Protection of Badgers
100 World Animal Protection, ‘Animal Protection Index’ (interactive map).
101 Wild Animals in Circuses Act 2019, Chapter 24, An Act to make provision to prohibit the use of wild animals in travelling circuses, 24th July 2019.
102 Welsh Government official website, ‘Use of wild animals in circuses to be banned in Wales after Bill passed’.
103Wild Animals in Travelling Circuses (Scotland) Act 2018, An Act of the Scottish Parliament to make it an offence to use wild animals in travelling circuses, 2018 asp 3, The Bill for this Act of the Scottish Parliament was passed by the Parliament on 20th December 2017 and received Royal Assent on 24th January 2018.
104 BornFree, ‘Wild Animals Circuses in Northern Ireland’.
105 World Animal Protection ‘Country review: United Kingdom’.
106 M. Klinowska, S. Brown, Great Britain Department of the Environment - A Review of Dolphinaria Prepared for the Department of the Environment, 1986.
107 Idem.
108 Wild Mammals (Protection) Act 1996, An Act to make provision for the protection of wild mammals from certain cruel acts; and for connected purposes, 1996 Chapter 3, 29th February 1996.
Act109, the Conservation of Seals Act110, and the Deer Act111, deepening the EU legal framework on hunting, as mentioned in the subsection 2.1.2, to guarantee activities are not done in a cruel manner.
Pertaining to farm animals, most standards applicable in the UK are not higher than the ones at the EU level, although the government has introduced a variety of supplementary national policies to address topical welfare issues. Examples comprise providing technical support for farmers112, the publication of advice for farmers to cope with extreme weather conditions113, and the publication of an extensive code of practice on the welfare of horses114. The main piece of legislation transposing EU requirements on farm animals in the UK is the Welfare of Farmed Animals Regulation115. The most important difference is the ban on fur farming. The activity has been banned in the UK on welfare grounds since 2000, after the Fur Farming (Prohibition) Act entered into force in England and Wales116 – Northern Ireland and Scotland had no fur farms but also imposed bans a couple of years later117. At the EU level, the activity is lawful and widely practiced, although dog, cat, and seal furs have been protected from it, as mentioned in the section above. Also, the UK had already imposed a total ban on sow stalls in 1999118, almost a
109 Protection of Badgers Act 1992, An Act to consolidate the Badgers Act 1973, the Badgers Act 1991 and the Badgers (Further Protection) Act 1991, 16th July 1992.
110 Conservation of Seals Act 1970, An Act to provide for the protection and conservation of seals in England and Wales and Scotland and in the adjacent territorial waters, 1970 Chapter 30, 29th May 1970.
111 Deer Act 1991, An Act to consolidate certain enactments relating to deer with amendments to give effect to recommendations of the Law Commission, 1991 Chapter 54, 25th July 1991.
112 Animal & Plant Health Agency official website ‘Guidance and Regulation’.
113 UK Government official website. Guidance on ‘Keeping farm animals and horses in extreme weather’, last updated on 21 October 2020.
114 UK Government, Department for Environment Food & Rural Affairs (DEFRA), ‘Code of Practice for the Welfare of Horses, Ponies, Donkeys and Their Hybrids’, 2017.
115 The Welfare of Farmed Animals (England) Regulations 2007, 2007 No. 2078, in force in 1st October 2007.
116 Fur Farming (Prohibition) Act (2000), An Act to prohibit the keeping of animals solely or primarily for slaughter for the value of their fur; to provide for the making of payments in respect of the related closure of certain businesses; and for connected purposes. 2000 chapter 33, 23rd November 2000.
117 The Fur Farming (Prohibition), (Northern Ireland) Order 2002, 17th December 2002 and Fur Farming (Prohibition) (Scotland) Bill, SP Bill 39, introduced in 5 October 2001.
118 European Parliament official website, Parliamentary questions, Subject: Implementation of ban on individual sow stalls, 27/11/2013.
decade before a partial ban was introduced at the EU level119. Standards on the live transport and slaughtering of farm animals remain the same in the UK as in the EU law.
Finally, the support for international animal welfare standards is stronger in the UK than it is at the EU level. The World’s Organization for Animal Health (OIE) animal welfare standards focus on six pillars, namely, transport, slaughter, production systems, stray dog population control, use of animals in research and education, and working equids, all of which have been incorporated in UK’s legislation and codes of practices – the latter having quasi-statutory authority120. On the other hand, although the EU has incorporated most of OIE’s guiding principles and standards on animal welfare in its legislative system, the regulation on the welfare of pet animals is limited to the countries that have ratified the European Convention for the Protection of Pet Animals. Consequently, the welfare of stray dogs is currently not governed at the EU level.
2.4 Legal effects of Brexit
2.4.1 EU competence to legislate on animal welfare
The EU operates under the principles of conferred competencies and subsidiarity, which are both defined in article 5 of the Treaty on European Union (TEU). According to the principle of conferral, the competencies not conferred upon the Union in the Treaties remain with the member states. In line with the principle of subsidiarity, in areas that do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives cannot be sufficiently achieved by the member states. In other words, policy and law can only be enacted at the Union’s level either when it falls under its exclusive competence or when the objectives of the proposed action can be better achieved by the EU. Article 4 of the Treaty on the Functioning of the European Union (TFEU)121 provides that the relevant areas in the context of animal welfare, such as the internal market,
119 The EU ban was introduced in 2008 by Directive 2008/120/EC, which laid down minimum standards for the protection of pigs.
120 OIE official website, ‘OIE animal welfare standards’.
121 OJ C 326, 26.10.2012.
agriculture, fisheries, and the environment fall under the shared competencies of the EU and its member states.
EU’s policies and laws on animal welfare have always been based on the founding treaties, even though they initially did not make specific mentions to animal welfare. In 2009, though, with the entry into force of the Lisbon Treaty, article 13 of the TFEU was amended to state that ‘in formulating and implementing the Union's agriculture, fisheries, transport, internal market, research, and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’, thus providing an unequivocal legal basis for the concern with animal welfare in its primary law.
However, it is important to emphasize that the EU’s competence in animal welfare is limited. It is not, as such, an EU objective by treaty, and as explained by the Commission, legislating on animal welfare ‘is only relevant if it affects EU policies such as the internal market, agriculture or public heath’122. Therefore, certain topics of animal protection that do not interact with the areas mentioned in Article 13 TFEU, remain under the responsibility of the Member States. Examples include the protection of pet animals and some welfare aspects of wild animals kept in captivity. In areas widely covered by EU law, such as the welfare of farm animals, national governments may adopt more stringent rules, provided they are compatible with the provisions of the treaties. This ability to act beyond EU minimum standards is the reason why the UK stands out as a pioneer country in animal protection123.
2.4.2 Member states’ scope to legislate on animal welfare
122 European Commission, brochure on ‘The welfare of companion animals in Europe’.
123i.e. in indexes such as the Animal Protection Index, mentioned in the previous section.
In short, member states have the opportunity to create more stringent rules on areas in which the EU already set minimum standards (i.e. keeping farm animals) and to legislate on areas where the EU has limited or no competence (i.e. protection of pet animals).
Notwithstanding, member states’ scope to create more protective rules is always constrained by another important factor: internal market rules. The common market was created by the Treaty of Rome in 1958 with the aim to increase economic prosperity by eliminating trade barriers in the EU. As a result, an area without internal frontiers was created allowing for the free movement of goods, persons, services, and capital124. Articles 4(2)(a), 26, 27, 114 and 115 TFEU provide the legal basis for the applicable rules and current practices of the EU single market.
In the context of animal welfare, what this means is that even though a member state is free to raise the minimum standards set by the EU or even to ban a certain activity on animal welfare grounds, it cannot forbid the entry and/or the commercialization of the banned product within its territory. An example that illustrates how this is a problem is the production of foie gras, which is banned in the UK as well as in most EU countries.
Due to single market rules and because the practice is widely accepted in countries such as Belgium, France, Spain, Hungary, and Bulgaria, there were no ways of keeping the product out of the UK’s market and restaurants before Brexit. Even after Brexit, trade bans on animal welfare grounds could still be challenged under World Trade Organization (WTO) rules, which will be further commented on in chapter 5.
2.2.3 What now? Disengaging from EU law and policy
The process of de-Europeanisation is defined as the active dismantling of EU policy at the domestic level125, where dismantling means the ‘cutting, diminution or removal of existing policy’126. Copeland distinguished de-Europeanisation from disengagement, the latter taking place when a country backs off from further Europeanisation, whilst still
124 Article 26 TFEU.
125 Burns et al. 2019.
126 Jordan et al. 2013, p. 795 in Burns et al. 2019.
maintaining its domestic structures, just not seeking to adapt them any further to EU’s input and influence127. An analytical component of the process of de-Europeanisation is that it is intentional with the aim to reverse the construction, diffusion, and institutionalization of policy paradigms first consolidated at the EU level. In this scenario, the state reverses those processes at the same time it prevents future ‘uploading and downloading in the governance process’128. Burns et al claimed this conceptual distinction is useful in the context of Brexit, as the act of leaving the EU shows a clear intention to de-Europeanise.
However, it does not automatically follow that by leaving the EU, the UK will immediately actively dismantle all policies embedded within its domestic legal system during the EU membership. Following from Burns et al assumptions on the future of environmental policy in the UK, if after Brexit the UK decides to leave the majority of EU animal welfare policies in place, then, despite no longer being a member state, UK animal welfare policy may be disengaged rather than de-Europeanised. A variety of political methods are used when assessing the likelihood of each of these processes taking place in the short and long terms after Brexit, but given the limited scope of this thesis, it suffices to present the findings of political scientists. Burns et al considered the absence
However, it does not automatically follow that by leaving the EU, the UK will immediately actively dismantle all policies embedded within its domestic legal system during the EU membership. Following from Burns et al assumptions on the future of environmental policy in the UK, if after Brexit the UK decides to leave the majority of EU animal welfare policies in place, then, despite no longer being a member state, UK animal welfare policy may be disengaged rather than de-Europeanised. A variety of political methods are used when assessing the likelihood of each of these processes taking place in the short and long terms after Brexit, but given the limited scope of this thesis, it suffices to present the findings of political scientists. Burns et al considered the absence