Pigs have no rights to bigger pokes

5 January 2012 by Rosalind English

C- 310/60 Danske Svineproducenter  v Justitsministeriet – reference to the European Court of Justice (CJEU) for a preliminary ruling on the Regulation laying down standards for the transportation by road of live vertebrates – read judgment 

Some people might disagree with the Appeal Court’s judgment that a life serving prisoner did not have a human right to more than thirty minutes’ daily exercise in the open air (see Matthew Finn’s post on this case). Of course a pig, being transported by road on a journey lasting at least eight hours, is allowed no open air at all. EU law provides that for road vehicles used for the transport of livestock, the internal height of the compartments intended for the animals must be sufficient for them to be able to “stand up in their natural position, having regard to their size and the intended journey, and that there must be adequate ventilation above them when they are in a naturally standing position, without hindering their natural movement”. That’s very good and high minded, one might think, given that the EU has not been known to be at the forefront of animal welfare legislation, particularly in relation to livestock being traded over member state boundaries. But the devil is in the detail…  Under the relevant rules, the loading density for pigs of around 100 kg should not exceed 235 kg/m². The CJEU has interepreted this as meaning that  “a Member State is entitled to introduce national rules under which, in the case of transport operations of over eight hours’ duration, the available space per animal must be at least 0.50 m2 per 100 kg of pig”. Further rules require that a 100kg pig must have 1 metre standing space, and one weighing more than twice that a generous 112 cm.

You need neither be a mathematician or an expert in porcine husbandry to grasp what that means in terms of space, ventilation and manoeveribility for a fully grown animal in transit.

In any event the EU law in question (Regulation No 1/2005) does not lay down, in precise terms, the height of the internal compartments. The CJEU has ruled that  Member States must be recognised as having “some discretion” in that respect. The fact that the European Union legislation on the protection of animals during transport is now set out in a regulation does not necessarily mean that all national measures for the application of that legislation are now prohibited.

As with many EU measures, there are two forces pulling in opposite directions; each Directive or Regulation has to reflect the EU’s underlying rationale as an internal market. But this objective lies flat against measures, such as animal welfare standards, which of necessity interfere with the free movement of goods across boundaries. In other words if country A has higher welfare standards than country B, the latter will not have its livestock accepted in the former, and the former will in all likelihood protest at sending its livestock to the latter. So when the EU speaks of animal welfare, it speaks with forked tongue, producing extremely contorted interpretations (such as the one under discussion) of what is precisely meant by the legislation dictating minimal welfare standards for the transport of live vertebrate animals which aims, at every juncture, to “eliminate technical barriers to trade in live animals and allowing market organisations to operate smoothly”. (See, on this point, David Hart QC’s post on the way pollution reduction initiatives, even of the EU Commission’s own making, are made to give way to free trade objectives. When it comes down to the wire, the environment has inferior status to cross border commerce).

Hence this declaration emerges, which can only be described as gobbledygook –

As regards the objectives of Regulation No 1/2005, it must be pointed out that, although it is true that the elimination of technical barriers to trade in live animals and the smooth operation of market organisations, referred to in recital 2 in the preamble to that regulation, form part of the purpose of that regulation…it is, however, apparent from… the preamble to that regulation that, like that directive, its main objective is the protection of animals during transport.

Furthermore, the principle of proportionality

requires that measures implemented by means of a provision must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it … That principle implies, inter alia, that, where there is European Union legislation which pursues a number of objectives, one of which is the main objective, a Member State which adopts a standard in the context of the discretion conferred on it by a provision of that legislation must comply with that main objective without hindering the attainment of the other objectives of that legislation. Therefore, in the light of those other objectives, such a national standard must be appropriate for ensuring that that main objective is attained and must not go beyond what is necessary to achieve it. means that  where there is EU legislation which pursues a number of objectives, one of which (animal welfare) is the main objective, a Member State which adopts a standard in the context of the discretion conferred on it by a provision of that legislation must comply with that main objective without hindering the attainment of the other objectives of that legislation.

What all these means in ordinary English is that  in the light of other objectives of the Regulation – the smooth operation of the market-  any national standard  must be appropriate for ensuring that the main objective (of animal welfare) is attained and must not go beyond what is necessary to achieve it. This means, in short, that a member state is not at liberty to introduce welfare measures that hinder the free movement of livestock across EU borders, or, as the CJEU says in terms:

numerical standards relating to the minimum internal height of compartments, such as those laid down by [the Danish legislation], must be proportionate to the objective of protecting animals during transport and must not go beyond what is necessary to achieve it.

The welfare question simply fizzles away because there is nothing in the Regulation to give it any definition; all that matters is the smooth operation of the market, since the CJEU stipulates that it is necessary to ascertain that any welfare standards adopted by member states

do not result in additional costs or technical difficulties which disadvantage either producers in the Member State which adopted them or producers from other Member States who wish to export their goods to or via that Member State

The outcome of this reference shows that, at least where welfare of animals is concerned, the EU is all talk and no substance. The regulations and directives are interpreted as laying down, not minimum, but maximum standards of welfare, beyond which Member States are not permitted to go.

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