When the European Union deals with animal transport it is always caught between two intentions: to protect animal welfare, on the one hand, to facilitate trade on the other. These two intentions are enshrined at the very beginning of the current council regulation dealing with animal transport (CR 1/2005).
The regulation reminds that “in formulating and implementing agriculture and transport policies, the Community and the Member States are to pay full regard to the welfare requirements of animals » but it immediately follows by underlining that “the Council has adopted rules in the field of the transport of animals in order to eliminate technical barriers to trade in live animals and to allow market organisations to operate smoothly » (CR 1/2005, Preamble, para. 1 & 2). It is quite easy to understand how these two goals can clash. And when they do, courts and tribunals are sometimes asked to arbitrate. In 2011, trade facilitation won. Last month, animal welfare did.
WHEN ANIMAL WELFARE IS SUBJECT TO TRADE FACILITATION
In 2010, the Court of Justice of the European Union (CJEU) was seized of a reference for preliminary ruling regarding the above-mentioned regulation on animal transport. The case concerned the transposition of the regulation in Denmark. Danske Svineproducenter, a professional body looking after the interests of Danish pig producers, complained that the Danish government had transposed the regulation in a way that contradicted the regulation. The pig producers were complaining that the government took advantage of the regulation to impose a stricter regulation regarding the long transports (more than 8 hours duration). The Danish Government demanded that the internal height of the compartment were higher for 8+ hours transport (100 cm to 107 cm) than for shorter duration (74 cm to 89 cm). The court ruled that a balance of proportionality had to be made between animal welfare and trade facilitation. Specifically, the court stated that national regulations promoting animal welfare are only admissible provided:
« (they) do not result in additional costs or technical difficulties which disadvantage either producers in the Member State which has adopted those standards or producers from other Member States who wish to export their goods to or via that first Member State » (Decision, para. 69).
This was in fact a way to subject one goal (animal welfare) to the other (trade facilitation). Based on that logic and without justifying how an increased height in compartment for more than 8 hours transportation were “disadvantaging producers” the court ruled that those additional centimetres designed to help pigs breathe better were “disproportionate” (Id., para. 60 & 69).
WHEN TRADE FACILITATION IS SUBJECT TO ANIMAL WELFARE
In July 2013, another reference for preliminary ruling was filed regarding the same regulation. The circumstances of the case were nevertheless very different. In this case, the municipality of Kempten (Germany) refused clearance to a consignment of cattle belonging to Zuchtvieh-Export GmbH. The cattle were about to be transported to by road from Kempten to Andijan (Uzbekistan). The municipality of Kempten justified its refusal on the ground the company did not provide proof that animal welfare would be protected according with the European Union regulation. The number of stops was in particular insufficient. The company argued that the regulation only applied on European soil and not regarding transportation from the Union to destinations located outside of EU territory. As the court phrases it:
“The central question in the main proceedings is whether, in the case of a long journey commencing in the territory of the European Union but ending outside that territory, Regulation No 1/2005 is also applicable to stages of that journey taking place in the territory of one or more third countries (Decision, para. 20)”.
From a theoretical point of view, the situation was a bit different from the previous one. It, of course, concerned the same tension (trade facilitation vs animal welfare). But in his case, recognition of the prevalence of animal welfare over trade facilitation would not have for a consequence the potential discrimination between European companies. Either all companies are to respect these regulations extraterritorially or they don’t, but it will not a create discrimination among them. That is perhaps why the court finally decided to recognize that the regulation does apply abroad and that the companies have to prove that – expect if prohibited by countries they cross (decision, para. 54) – they will provide the required breaks and stops to ensure that animal welfare is protected.
To reach that goal, the Court rested on an interpretation of the regulation that was centred on animal welfare and did not proceed to the balance with the “trade facilitation” dimension of the regulation. We shall see in the future if that tendency to emphasise animal welfare is an isolated example or a symptom of deeper change in the CJEU’s jurisprudence.
Vincent Chapaux – May 2015
(Photos – Bansky)