Animal transport: where are we now with EU law?
18 February 2019
MAS Group Holdings Ltd and others, R (on the application of) v Barco De Vapor B.V. and others [2019] EWHC 158 (Admin), 4 February 2019
As a matter of policy, the UK government is committed to improving the welfare of all animals, or so we are given to understand. In this little-covered ruling, we see that the responsible authorities are trying to do what they can to alleviate the suffering of farm animals enduring transport for slaughter:
[The government] would prefer to see animals slaughtered as near as possible to their point of production and thus trade in meat is preferable to a trade based on the transport of live animals. Whilst it recognises the United Kingdom’s responsibilities whilst remaining a member of the EU, it will be looking to take early steps to control the export of live animals for slaughter as the UK moves towards a new relationship with Europe.
Livestock transport has been a controversial subject in the UK for many years. Efforts by public authorities to reduce or mitigate the movement or export of live animals have hitherto foundered on the rocks of free movement of goods (see my post on TFEU Article 35). Despite the ethical controversy, the current position is that long distance transport of nonhuman animals for slaughter is lawful (Barco de Vapor BV v Thanet District Council [2015] Bus LR 593.)
Because of the protests (and, more significantly, the BSE crisis) there is currently only one vessel (“the MV Joline”) willing to carry livestock direct from England to Continental Europe. The other option is to transport animals from Great Britain to Ireland, and from there to Continental Europe. MV Joline takes sheep in trucks on a direct ferry service from Kent to German ports. This journey takes 20 hours. The alternative involves a ferry journey from Cairnryan in Scotland to Larne in Northern Ireland and then a drive down to Dublin to catch a 19 hour ferry from Dublin to Cherbourg. This is an ordeal lasting at least 90 hours. Neither of these time estimates take into account the additional time taken to transport the animals from the destination ports to abattoirs.
Turning to the case in hand: Defra by its agents refused to approve a journey log for the transport of a single truck of sheep from England to Germany via Rosslare Harbour in Ireland. Defra’s policy is not to approve such journey logs (via Ireland) if a shorter route is available.
The claimants were companies involved in the export of livestock from Great Britain to Continental Europe for fattening or slaughter. They included the company involved in the 1996 case of The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd.
Since the introduction of animal welfare as a relevant consideration in EU law (see below) the transport of farm animals has come under scrutiny. It is now governed by Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport. This regulation includes a requirement that
all necessary arrangements have been made in advance to minimise the length of the journey.
The EU Regulation stipulates that in general, for most animal species, there is a maximum journey time of 8 hours, and anything longer has to be justified. It is Defra’s opinion that
animal welfare tends to become poorer as journey length increases
and hence its policy that journeys should be “as short as possible”, wording derived from the Regulation. In relation to the routes available in this particular case, the veterinary advice was that journeys via Ireland had a negative impact on the welfare of sheep and in order to minimise the stress only the shortest routes should be approved.
However, the Regulation dictates that the”short as possible” requirement should be “subject to the principle of proportionality” and this was central to the claimants’ case. If – as is the case here – the Regulation has exhaustively harmonised EU law in a particular field, then no separate issue arises under Article 36, which allows restrictions on trade to be justified in certain circumstances. In this case it was common ground that whether or not a breach (if any) of Article 35 was justified depended on whether the national measures were disproportionate under the Regulation, which harmonised harmonised EU law in the field of the protection, welfare and health of animals during transport.
Hedley Lomas wished to use the Irish route. When they were asked by DEFRA’s agency to demonstrate why they could not meet the requirements under the Transport Regulation and minimise the length of the journey by using the MV Joline, they complained that the conditions which this policy placed on the livestock trade constituted “a downright restriction, contrary to law”,
whilst the bigoted and comparatively small number of protesters are treated with more attention than is justified.
HL and the other claimants argued that the effect of Defra’s policy was to “hand over to MVJ’s operators a monopoly over exports from Great Britain to Continental Europe”. This, they contended, had forced them out of business. They argued that the policy and any steps taken pursuant to it were unlawful, both as a matter of EU law and as a matter of domestic law. They sought declarations that, amongst other things, they constituted
- a breach of Article 35 TFEU that could not be justified under Article 36
- irrationality and fettering of discretion
They also sought Francovich damages for breach of their EU rights.
Background law
It is worth reminding ourselves at this point that the 2004 Regulation was adopted consequent to Protocol 33 which incorported animal welfare as a Treaty provision (Article 13 TFEU). Thus,
the protection of animal welfare is of central importance to the interpretation and application of the Regulation. It has a firm Treaty-basis and is explicitly recognised in the CJEU’s case-law.
However, previous challenges to welfare measures adopted under the Regulation have established that member states are not permitted to introduce “disproportionate” restrictions to the free movement of goods. These include measures that may 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 (Case C-316/10 Danske Svineproducenter v Justitsministeriet [2011] ECR 1-13274)
The principle of proportionality in EU law receives more than adequate coverage in paras 157 – 159 of Morris J’s judgment, so I will not expand on it here. Concluding, the judge said that where a measure pursues two or more objective, and where one is the main objective (in this case, animal welfare), and the other is secondary (the smooth operation of trade between Member States, and where these objectives might conflict,
the national measure has to be necessary to achieve the main objective and to be the measure which is the least restrictive of the secondary objective(s). If that least restrictive measure does also nevertheless hinder the attainment of the secondary objective(s), it is not thereby unlawfully disproportionate. In my judgment, §52 of Danske No 2 cannot be read so as to prohibit such a measure, necessary for the achievement of the main objective, for otherwise the effect would be for the secondary objective to override the main objective. [para 54]
Morris J also pressed hard on the claim that the incurrence of additional costs by the producer as a result of this measure was evidence of the measure’s disproportionality. This was not per se a reason to find that a measure is disproportionate and contrary to the EU legislation. Thus, he found that the proportionality principle was not engaged in this case. Even if it were engaged, he found the Policy to be proportionate:
as regards the Regulation, the protection of animal welfare is the main and primary objective. The trade objectives are secondary. Contrary to the effect of the Claimants’ submission, they are not of equal importance and cannot trump or override the achievement of the primary objective. [para 117]
the principle would be engaged only if the Policy interfered with the fundamental freedom of movement of goods. In the present case the alleged restrictive effects on trade of the Policy are too uncertain and indirect to be capable of engaging the protection of Article 35 TFEU. [para 113]
is not the Policy which has brought an end to the Claimants’ trade. The Policy has not determined the price set by BDV. The market, created by the independent decisions of commercial ferry operators to withdraw their services, has done that. [para 114]
The judge had little time for the claimants’ contention that they had suffered detriment to their commercial interests as a result of the minimal journey time policy. He also observed, from the tone and content of the correspondence, that Mr Lomas in particular
has strong feelings of grievance in relation to the export of live animals and of having been improperly treated by the Defendants and others.
In any event, the Regulation protected Defra from any allegation of illegality under EU and domestic law. Where the route proposed for the animals is “significantly longer” than the shorter route “with commensurately greater risks for animal welfare”, and the shorter route is more expensive, but not unprofitable, the balance falls firmly in favour of the shorter journey. That, the judge found, was the position in relation to the Irish route, which is up to four times longer and where any additional cost of the MV Joline was not prohibitive.
The fact that there is no established actual effect on trade and that any potential effect appears to be slight means that, on the “trade” side of the balance, the adverse effect is slight, at most. In the present case, the balance comes down clearly in favour of the protection of animal welfare sought to be promoted by the Policy.
As for their arguments on free trade, no separate issue arose. First there was no breach of Article 35 at all because the Claimants failed to establish that Defra’s policy and the steps taken under it had an effect on trade. Secondly, even if there were such an effect on trade, it was justified because the Policy and the Decision were proportionate to the objectives of the Regulation.
There was no basis to the Claimants’ argument on rationality. The Policy was a rational response to the main purpose of the Regulation, to protect animals during transport [para 177]
As to their Francovich claim, Morris J concluded that, in the light of his finding that no breach of EU law had been established, no claim for damages arose. Nevertheless, even if he had found a relevant breach, he would have entertained “substantial doubts” as to whether, in particular, the Claimants could establish either that any breach was “sufficiently serious” or the necessary “causal link” between breach and loss. [para 180]
Other posts on animal welfare and the transport of live animals:
- One trade freedom we could do without
- Pigs have no rights – transportation Danske case
- Export of live animals for slaughter: EU court rules
- Animal welfare after Brexit: adjustable upwards or downwards
- Expanding the moral circle to nonhuman animals
- Legal personhood for nonhuman animals
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