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The Protocol on the Protection and Welfare of Animals 1 (“Protocol”) was annexed by the Treaty of Amsterdam to the Treaty that established the European Community (the EC Treaty) in 1997.2 The Protocol was established in recognition that “the protection of animal welfare is a legitimate objective in the public interest...”3 and that “the interests of the Community include the health and protection of animals.”4 “[E]fforts to attain the objectives of the common agricultural policy cannot disregard requirements of public interest, such as the protection of the health and life of animals, which the Community institutions must take into account in exercising their powers.”5 The Protocol reads:
THE HIGH CONTRACTING PARTIES, DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings, HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community, In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall 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.6
The Protocol is important because it recognizes animals as “sentient beings,” and because it requires the Community and its Member States, in formulating and implementing the Community’s policies on agriculture, transport, the internal market and research, to pay “full regard to the welfare requirements of animals.”7 Therefore, the EU has the responsibility to legislate to improve the welfare of animals, to prevent cruelty to animals and mistreatment in areas covered by the Treaty.8 The Protocol
seeks to reinforce the obligation to take the health and protection of animals into consideration by providing that full regard must be had to the welfare requirements of animals in the formulation and implementation of the Community's policy, particularly in relation to the common agricultural policy, whilst at the same time recognising that differences currently exist between the legislation of the respective Member States and the various sentiments harboured within those Member States.9
The Protocol seems to have set a clear legal obligation for the Community institutions to pay full regard to the welfare requirements of animals.10 The Protocol would appear to be legally binding because the EC Treaty mandates that “[t]he Protocols annexed to this Treaty ... shall form an integral part thereof.” 11 In addition, the Protocol states that “the Community and the Member States shall pay full regard to the welfare requirements of animals...” 12 However, the Protocol “limits that obligation to four specific spheres of Community activity,” namely agriculture,13 transport, internal market and research policies.14 Therefore, the Community and Member States are not required to “pay full regard to the welfare requirements of animals” in any area other than those four. Excluding other areas may have been unintended, as the Treaty Establishing the European Constitution signed on 29 October 2004 expands the commitment to ensuring the protection of animals 15 to agriculture, fisheries, transport, internal market, research and technological development and space policies. 16 The “Reform Treaty” incorporated the provisions of the Protocol into the body of the Treaty as Article 13 of the Treaty on the Functioning of the European Union. 17 Article III-121 provides:
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 requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage.18
The inclusion of this article in the main text of the Treaty may give greater weight to the recognition of animals as sentient beings, and to the requirement for the Community and the Member States to pay full regard to the welfare requirements of animals in the specified policy areas.19
LIMITATIONS ON THE TREATY’S AUTHORITY
The Protocol does not seem to be directly enforceable.20 One court was unable to “infer any principle of general application from the Convention, which, ... does not impose any clear, precisely defined and unqualified obligation.”21 According to this court, the Protocol
does not lay down any well-defined general principle of Community law which is binding on the Community institutions. Although it provides that full regard must be had to the welfare requirements of animals in the formulation and implementation of the Community's policy, it limits that obligation to four specific spheres of Community activity [agriculture, transport, internal market and research policies] and provides that the legislative or administrative provisions and customs of the Member States must be respected as regards, in particular, religious rites, cultural traditions and regional heritage.22
Because the “four specific spheres of Community activity” are agriculture, transport, internal market and research, the Community and the Member States only need to “pay full regard to the welfare requirements of animals” with respect to these policies. In so doing, Member States should recognize “that differences currently exist between the legislation of the respective Member States and the various sentiments harboured within those Member States.”23 Member States should also respect “the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”24 Derogations from the Protocol for religious rites, cultural traditions and regional heritage reduce the effectiveness of the Protocol. 25 For example, the ritual killing of animals by Muslims and Jews could be excluded from a European Commission animal welfare regulation dealing with conditions for slaughtering animals.26 Because “freedom of religion is enshrined in the Charter of Fundamental Rights and also considered in the protocol on the protection and welfare of animals annexed to the treaty, it takes precedence” over animal welfare concerns with respect to ritual killing. 27 The requirement imposes a duty to "respect" legislative or administrative provisions in these areas, but that does not mean that animal welfare should not be taken into account.28
In areas other than agriculture, transport, internal market and research, which are not covered by the Protocol, the EU has no jurisdiction. 29 These areas remain under the sole jurisdiction of the Member States. 30 These areas include the “use of animals in competitions, shows, cultural or sporting events such as bullfighting, dog-fighting and dog-racing.”31 For example, “wild animals continue to be forced to perform in circuses and street acts in Spain.” 32 The Treaty Establishing the European Constitution expanded the areas in which the protection of animals in policy- making is to be considered to agriculture, fisheries, transport, internal market, research and technological development and space policies.33 Perhaps if entertainment were added as an included area, it would improve conditions for animals in competitions, circuses, zoos, etc. Currently, the Protocol mandates that “customs of the Member States must be respected as regards, ... cultural traditions and regional heritage.”34 Therefore, it may be more difficult to protect animals used in bull-fighting, for example. However, the duty is only to respect such traditions. Therefore, animal welfare could be taken into account. It seems public opinion supports protecting animals in entertainment, and “animal welfare groups ... are calling for Europe-wide legislation against the use of wild animals in street and circus acts.”35 Austria has already banned the use of wild animals in circuses. 36
Recognizing limitations of the Protocol with respect to the protection and welfare of animals in EU policy-making, 37 the European Commission adopted an Action Plan on The Protection and Welfare of Animals (“Action Plan”) on January 23, 2006.38 In the Action Plan, the Commission recognizes that animal welfare is an issue of great importance for European Citizens, 39 and is the only Europe-wide legislation protecting animals.40 “The Action Plan ... aims to clarify existing EU legislation on animal welfare, while putting forward proposals for areas where sufficient action is currently lacking.” 41 “It also aims to ensure that full regard is paid to animal welfare in related policy fields such as agriculture, environmental policies, research and chemicals' testing, in line with the Protocol on Protection and Welfare of Animals annexed to the EU Treaty.” 42 The Action Plan sets out a five-year goal of raising existing standards in animal protection and welfare in the EU and abroad.43 The five main areas of action are the following:
• Upgrading minimum standards for animal protection and welfare;
• Giving high priority to promoting policy-oriented research and the application of the "3Rs" principle (Replacement, Reduction and Refinement of the use of animals in experiments) to animal testing;
• Introducing standardized animal welfare indicators;
• Ensuring animal handlers and the general public are more involved and informed on animal welfare issues; and
• Supporting and initiating further international initiatives to raise awareness of, and create greater consensus on, animal welfare.44
In meeting its goals, the Action Plan advocates the “Five Freedoms” for animals45 which are
1. Freedom from Hunger and Thirst - by ready access to fresh water and a diet to maintain full health and vigour;
2. Freedom from Discomfort - by providing an appropriate environment including shelter and a comfortable resting area;
3. Freedom from Pain, Injury or Disease - by prevention or rapid diagnosis and treatment;
4. Freedom to Express Normal Behaviour - by providing sufficient space, proper facilities and company of the animal's own kind; and
5. Freedom from Fear and Distress - by ensuring conditions and treatment which avoid mental suffering.46
In addition to the Action Plan, there is a move to improve animal welfare through labeling requirements, and is a top priority for the European Commission. 47 The Commission is studying several animal welfare labeling options, including the introduction of a two-tier labeling system. 48 “One system would establish a mandatory labeling scheme to identify products that meet EU animal welfare standards.” 49 “A second system would introduce a voluntary labeling scheme for products that go beyond what is required by existing EU legislation.” 50
Another project is the “Welfare Quality” project that deals with the integration of animal welfare in the food chain (funded by the EU).51 The project focuses on three “species and their products: cattle (beef and dairy), pigs, and poultry (broiler chickens and laying hens).” 52 “The research program is designed to develop European standards for on-farm welfare assessment and product information systems as well as practical strategies for improving animal welfare.”53
International transport is another area of concern. The Agriculture Council has agreed to “mandate the European Commission to negotiate on behalf of the Community the ongoing review of the European Convention of the Council of Europe for the protection of animals during international transport.”54 The negotiation mandate covers all areas under Community jurisdiction. 55 The guidelines for the negotiations are “the Commission must seek to ensure that a high level of animal protection is extended to international animal transports outside the borders of the European Union, and that the provisions of the new convention are in line with existing Community legislation.”56 Once adopted, this convention will be legally binding.57
With respect to animals used in experiments, Directive 86/609/EEC (“Directive”) (adopted in 1986 58) is the main piece of EU legislation to protect these animals and to avoid distortions of the internal market in this field. 59 The Directive controls the use of laboratory animals by requiring that facilities conducting animal experiments be licensed, and by ensuring the appropriate use of anesthesia to avoid unnecessary pain and suffering. 60 The Directive establishes guidelines for housing and care of animals, as well as for the training of personnel handling animals and supervising the experiments. 61 It also aims to reduce the numbers of animals used for experiments by requiring that experiments not be performed unless there is no alternative. 62 It also encourages the development of alternatives animal testing. 63
An example of a member state that has enacted legislation to protect animals beyond what is required in the Protocol is Austria, which has one of Europe's toughest animal rights laws.64 The law requires farmers to uncage chickens and forbids “pet owners from clipping their dogs' ears or tails.” 65 The law also bans “the use of lions and other wild animals in circuses and makes it illegal to restrain dogs with chains, choke collars or ‘invisible fence’ - devices that administer mild electric shocks.” 66
According to Lesley O’Donnell, Director of the International Fund for Animal Welfare, the Protocol reflects the political will to protect the welfare of animals, and the public support in Europe to treat animals better.67 Also, according to Daniel Turner, Co-ordinator of ENDCAP, “animal welfare consistently features as an issue of great importance for European citizens."68
MOTIVATIONS FOR CREATING THE PROTOCOL
Compassion in World Farming initiated and led the EU-wide campaign for the adoption of the Protocol.69 The European Parliament has been sympathetic to animal welfare issues for many years. 70 “Animal welfare has been taken into consideration within the European Union for many years with a growing body of legislation accruing on this issue since the 1970s.”71
The 15 member states to the Protocol are Belgium, Denmark, Germany, Switzerland (Hellenic Republic), Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden, and the United Kingdom.72
The Protocol was opposed by farmers who considered it to be an additional cost.73 Developing countries also opposed the Protocol because they see the “broadening of agricultural functions as an attempt of freeze their products out of Europe’s markets.” 74
RESULT OF PROTOCOL
Evidence suggests that little has been done to ensure that the European Community and Member States take the obligation to consider animal welfare in their policy-making seriously. 75 This may be because the Protocol is not directly enforceable.76
Current legislation and the Action Plan are mainly concerned with farm animals. 77 With respect to wild animals, the European Community has failed to ensure that those used in display or entertainment are protected, or that even their basic needs are met. 78 “Legislation specific to wild animals is minimal, welfare requirements are limited, non-specific or vague, and are always dependent upon the animal's use, circumstance or conservation status, rather than its specific, inherent needs.”79 Thousands of wild animals kept in captivity are housed in conditions that fail to meet even basic needs.80 Zoos in many European Member States fail to comply with the EU Zoos Directive.81 Circuses continue to tour with wild animals through the majority of European countries.82 Dolphins continue to be kept in inadequate conditions for circus-style performances.83 “The welfare of these wild animals could benefit from effective European regulations or the provision of well-conceived national legislation.” 84
1 “Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts - Protocol annexed to the Treaty of the European Community - Protocol on protection and welfare of animals,” 1997 OJ C 340. The 15 member states to the Protocol are Belgium, Denmark, Germany, Switzerland (Hellenic Republic), Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden, and the United Kingdom. Id.
2 “Inquiry into the agricultural, fisheries and environment aspects of the EU Reform Treaty by Sub-Committee D of the House of Lords Select Committee on the European Union” (December 2007), available at http://www.parliament.uk/documents/upload/House%20of%20Lords %20evidence%20HN%20Dec%2007%20CWF.doc.
3 2008 ECJ EUR-Lex LEXIS 1111, 20-21 (ECJ EUR-Lex 2008).
4 Afdeling Groningen van de Nederlandse Vereniging tot Bescherming van Dieren v Minister van Landbouw, Natuurbeheer en Visserij, 2001 ECJ CELEX LEXIS 393 at art. 77.
5 Id. at art. 78.
6 “Protocol on protection and welfare of animals,” 1997 OJ C 340.
7 Supra at 2.
8 “Food Safety - From the Farm to the Fork,” Europa - Animal Health and Welfare, available at http:// ec.europa.eu/food/animal/welfare/policy/index_en.htm.
9 See Supra 4 at 79.
10 “Europe's 25 NGOs Meet for Forgotten Animals,” The Seoul Times (October 24, 2008), available at http://theseoultimes.com/ST/?url=/ST/db/read.php?idx=5770.
11 Supra at 2.
12 Supra at 1.
13 “The importance of animal-welfare requirements in the formulation and implementation of Community policies in the agricultural sector is expressly recognised in the Protocol...” Viamex Agrar Handels GmbH v. v Hauptzollamt Hamburg-Jonas, 2007 ECJ CELEX LEXIS 1004 at art. 6.
14 See Supra at 4, art. 73.
15 See Supra at 8.
16 “Treaty Establishing a Constitution for Europe,” OJ 2004 C310, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:310:0055:0185:EN:PDF.
17 Supra at 2.
18 Supra at 16.
19 Supra at 2.
20 Supra at 10.
21 Supra at 4, art. 74.
22 Supra at 4, art. 73.
23 Id. at 79.
24 Supra at 6.
25 Supra at 10.
26 “Ritual slaughter of animals excluded from new regulations,” Sunday Business Post (Ireland), (September 28, 2008).
28 Supra at 10.
29 Supra at 8.
32 “Dancing bears in Spain cause public outcry,” the Olive Press (October 16, 2007), available at http://www.theolivepress.es/2007/10/16/dancing-bears-in-spain-cause-public-outcry/.
33 Supra at 16.
34 Supra at 4, art. 73.
35 Supra at 32.
37 Supra at 10.
40 Supra at 26.
41 “Euro MP welcomes measures to protect animals,” Bristol Evening Post 6 (February 4, 2006).
43 Supra at 10.
44 “Animal Welfare,” Foreign Agricultural Service: U.S. Mission to the European Union, available at http://useu.usmission.gov/agri/welfare.html.
45 Supra at 10.
47 Supra at 44.
54 “Welfare of animals during transport - Council approves mandate for negotiating international rules,” RAPID (October 23, 2001).
55 “Matters of national competence like transport of animals for non-commercial reasons and transport less than 50km will be negotiated by the Member States.” Id.
56 Supra at 54.
58 “Commission consults public and experts on the welfare of laboratory animals,” RAPID, available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/ 06/798&type=HTML&aged=0&language=EN&guiLanguage=en 19/06/2006.
64 AustriaEnactsStrictAnimalRightsLaws,New laws protect chickens, cows, and dogs - Violators Could Be Fined Up to $18,000, Associated Press (27 May 2004), available at http://www.animalactivism.org/ resources/online/story.php?pr=39.
67 “EU to update animal welfare rules,” The Parliament.com (Jan 23, 2006), available at http:// www.theparliament.com/index.php?id=540&tx_ttnews[tt_news]=260029.
68 Supra at 10.
69 “The Impact of Livestock Farming: Solutions for Animals, People and the Planet,” Compassion in World Farming (2008), available at http://www.ciwf.org.uk/includes/documents/cm_docs/ 2008/i/impact_of_livestock_farming.pdf.
70 Supra at 2.
71 “Attitudes of consumers towards the welfare of farmed animals,” Eurobarometer 71 (June 2005), available at http://ec.europa.eu/public_opinion/archives/ebs/ebs_229_en.pdf.
72 Supra at 1.
73 Tussie, Diana, and Cintia Quiliconi, “The Current Trade Context,” Human Development Report 2005 (2005) Footnote at 11-12, available at http://hdr.undp.org/en/reports/global/hdr2005/papers/ hdr2005_diana_tussie_and_cintia_quiliconi_24.pdf.
75 Supra at 10.
77 Unfortunately, the Action Plan fails to address the needs of all animals. Id.