Analysis: Pet shock collar ban – barking, or a new era for rights?

23 November 2010 by

Updated | The recent High Court decision upholding the ban on electronic training collars for domestic animals raises the interesting and topical issue of animal welfare and its role in EU law.

In her post on the case Catriona Murdoch discusses the various arguments involved,  from human rights to irrationality to proportionality under EU law, and the extent to which the language of human rights can be enlisted in the service of animal protection. Conor Gearty has analysed this topic in a persuasive paper published in 2008; here we  look at the question in relation to permitted justifications for impeding free movement for goods and services in the Community.

By Article 36 on the Treaty of the Functioning of the EU (TFEU), member states may prohibit or restrict free movement of goods on the grounds of “the protection of health and life of humans, animals or plants”. It is curious that this clause was chosen as the battleground for this particular dispute. The provision refers only to “health” and “life”. Since it was not contended at any stage during the consultation about electronic collars that they were life-threatening, the only legitimate aim in question is “health” [of the animals involved].

In EU language, the health of animals is a concern only in relation to livestock, i.e. animals as units of food production. The stated objective of Community legislation in this context is to:

protect and raise the health status and condition of animals in the Community, in particular food-producing animals, whilst permitting intra-Community trade and imports of animals and animal products in accordance with the appropriate health standards and international obligations

To this end a raft of Community legislation has been produced to impose preventive health measures on animal diseases, intra-community trade in live animals and animal products.

The word “welfare” is not mentioned in Article 36. Although the European Commission has gone as far as to declare that its activities in this area “start with the recognition that animals are sentient beings”, however this “recognition” is so far only embodied in a Community Action Plan, which amounts to no more than a survey of views on potential legislation in relation to “farm animals, experimental animals, pet animals and wild animals which are kept in activity”.  The general aim is laudable:

to ensure that animals need not endure avoidable pain or suffering and obliges the owner/keeper of animals to respect minimum welfare requirements.

But it is telling, to say the least, that the http address for this subsection starts with the word “food”:

If this is the pigeonhole for submissions on animal welfare, one wonders whose interests will be prioritised.

So to what extent is genuine “animal welfare” a ground for justifying barriers to trade in the EU? In its Guide to the application of Treaty provisions governing the free movement of goods the Commission emphasises that any risk to the  “health and life of humans, animals and plants” needs to be demonstrated

in the light of the most recent results of international scientific research. Thus, Member States bear the initial burden of showing that precautionary measures can be taken under Article 36 TFEU. However, Member States do not need to show a definite link between the evidence and the risk; instead it is enough to show that the area in question is surrounded by scientific uncertainty. The EU institutions will then evaluate the case brought by the Member State

It is difficult to see how animal welfare can be shoehorned in to this precautionary principle, since its true objective is to ensure disease-free meat and other animal products for humans. For the respondents in the Petsafe case, in other words, relying on Article 36 was a somewhat risky venture. Safer ground would have been the zone of “mandatory requirements” which, as a result of expansive Court of Justice activity, Member States may rely on to defend national measures. It has been established in at least one ruling on a preliminary reference (case C-219/07) that animal welfare appears to be one of these mandatory requirements. This case concerned a prohibition on importing certain mammals from other EU countries. In ruling that this was a permitted barrier to trade,  the ECJ stated that the importance of this objective was reflected, in particular, in the adoption by the Member States of the Protocol on the Protection and Welfare of Animals, annexed to the Treaty Establishing the European Community (OJ 1997 C 340, p. 110)

The Protocol itself is so hedged about with qualifications that it seems barely possible that any measure could be proposed or resisted on the basis of its terms:

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.

Still, the protocol and the sentiments behind it have led to some modest inroads into the general EU philosophy that animals amount to no more than goods the freedom of whose transport must not be impeded; since the Protocol was annexed to the TEC in 1997 the Community has signed the 2003  European Convention for the protection of animals during international transport . Cynics might point out that insisting on certain standards for animal transportation is motivated by nothing more than the need to ensure a viable product at the other end, but at least it has the side benefit of alleviating some of the misery of the trade in meat on the hoof. And it is hardly surprising that the animal charities that campaigned for this protocol complain that it is far from perfect, due to the ‘get out’ clause for acts of cruelty justified by cultural/religious reasons.

It is interesting therefore to speculate how the Petsafe case would have fared had the question of the justifiability of the collar ban been referred to the ECJ by way of the preliminary reference procedure.  For all the grand gestures and declarations, and even the wealth of legislation in its support, it would be absurdly optimistic to assume that the European Union has become  a prime mover in the cause of improved animal welfare. In 1997  the ECJ refused to allow the prohibition or restriction of the export of calves for rearing in veal crates (banned in the UK since 1995) as it constituted a quantitative restriction on exports contrary to Article 34 of the Treaty. Article 36 availed the applicants nothing in that case, and it is unlikely that they would fare any better thirteen years later.

Note: On 18 July 2011 the first prosecution under this ban was carried out: see our post on the case here.

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