EUROPEAN UNION LAW ON THE WELFARE OF FARM ANIMALS

COMPASSION IN WORLD FARMING TRUST EUROPEAN UNION LAW ON THE WELFARE OF FARM ANIMALS By Peter Stevenson Compassion in World Farming Trust, 2004 Compassion in World Farming Trust 5a Charles Street,Petersfield, GU32 3EH, UK T. +44 (0)1730 268070 F. +33 (0)1730 260791 E. ciwftrust@ciwf.co.uk www.ciwf.co.uk CIWF Trust is an educational charity working internationally to promote respect for farmed animals and the environment. Registered Charity number, 1095050, a company limited by guarantee, Registered Number 4590804

EUROPEAN UNION LAW ON THE WELFARE OF FARM ANIMALS European Union (EU) law contains a range of helpful provisions designed to protect farm animals on-farm, during transport and at slaughter. A legally binding Protocol recognises animals as sentient beings and requires the EU and its Member States, when formulating and implementing their policies in certain key areas to pay full regard to the welfare requirements of animals. EU law has prohibited some of the worst aspects of industrial livestock production: veal crates have been prohibited from 2007, conventional battery cages for egg-laying hens from 2012 and sow gestation crates from 2013. This article describes and evaluates the above legislation and indicates the scientific research on which it is based. Nonetheless, EU law has to date only gone part way; substantial and far-reaching fresh legislation is needed before the EU can claim to have a body of law which properly ends the suffering inherent in industrial farming and legislates for a positive state of well-being for farm animals. This article outlines the principal reforms that are still needed. I. INTRODUCTION... II. PROTOCOL ON ANIMAL PROTECTION... III. MAIN EU ON-FARM LEGISLATIVE PROVISIONS... A. Pigs... 1. Prohibition of Sow Gestation Crates and Tethering of Sows... 2. Hunger in Sows... 3. Prohibition of Fully Slatted Floors for Sows... 4. Provision of Straw or some other Environmental Enrichment.. 5. Prohibition of routine tail-docking... B. Calves... 1. Prohibition of Veal Crates... 2. Prohibition of tethering of calves... 3. Requirement to provide solid food and dietary iron... C. Egg-laying hens... 1. Prohibition of Battery Cages... 2. Free-range and perchery systems... 3. De-beaking... 4. Forced molting... D. General Farm Animals Directive... E. Broiler Chickens... F. Bovine Somatotrophin... G. Patenting of Animals... IV. MAIN EU LEGISLATIVE PROVISIONS ON THE TRANSPORT OF FARM ANIMALS A. Fitness for transport... B. Authorisation of transporters... C. Route plans... D. Journey times, rest, food and water... E. Treatment of animals... F. Competence of staff... G. Vehicle standards... 1. Bedding... 2. Access... 3. Ventilation... 4. Partitions... 5. Water supply... 2

H. Proposed new Transport Regulation... V. MAIN EU LEGISLATIVE PROVISIONS ON SLAUGHTER... A. Stunning... 1. Captive bolt stunning... 2. Electrical stunning... B. Bleeding... VI. THE NEED FOR FURTHER PROGRESS... A. Cattle... B. Fur Farming... C. Force-feeding of Ducks and Geese... D. Pigs... E. Laying Hens... F. Broiler Chickens... G. Calves... H. Transport... I. Slaughter... VII. CONCLUSION... * Peter Stevenson, an English solicitor, works for the organisation Compassion in World Farming, which has offices in the UK and several other European Union Member States. 3

I. INTRODUCTION The European Union (EU) 1 has over the last 28 years established a wide range of detailed legislative provisions concerning the welfare of farm animals. The first such provision was enacted in 1974 and required animals to be stunned (rendered unconscious) before slaughter. 2 These EU laws are welcome in that they: 1) establish certain welfare standards for farm animals on-farm, during transport and at slaughter; and 2) prohibit some of the most inhumane aspects of industrial livestock production. 3 EU laws have, for example, prohibited veal crates, battery cages for laying hens and sow gestation crates, prohibitions which come into force in 2007, 2012 and 2013 respectively. 4 However, EU laws at present go only part way to providing acceptable welfare standards. They need to be strengthened very considerably before they can be viewed as a fully comprehensive set of legislative measures which prohibit all inhumane farming practices and positively promote the well-being of farm animals. 5 Most of the EU laws concerning farm animals are Directives. It has sometimes been erroneously argued by some outside the EU that EU Directives are not binding law, but are simply recommendations. This is not so. The Treaty establishing the European Community provides that A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. 6 The key words are that a Directive is binding as to the result to be achieved, although it is left to each Member State what kind of legislative instrument it employs (provided that it is binding) and precisely what language it uses (provided that the result mandated by the Directive is achieved). Some EU laws on farm animals are Regulations. An EU Regulation is binding in its entirety and directly applicable in all Member States. 7 This means that, on its entry into force, an EU Regulation automatically becomes, as written, part of the national law of each Member State. II. PROTOCOL ON ANIMAL PROTECTION In 1997, a Protocol on Protection and Welfare of Animals 8 was annexed by the Treaty of Amsterdam 9 to the Treaty establishing the European Community (the EC Treaty). 10 The Protocol is legally binding as the EC Treaty stipulates that The Protocols annexed to this Treaty... shall form an integral part thereof. 11 1 The European Union at present comprises 15 Member States: Austria, Belgium, Denmark, France, Germany, Greece, Finland, Italy, Luxembourg, the Netherlands, Portugal, the Republic of Ireland, Spain, Sweden and the United Kingdom. Ten new Member States are to join the EU during 2004: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. 2 Council Directive 74/577/EEC of 18 November 1974 on stunning of animals before slaughter. Official Journal No. L316, 26.11.1974, p.10. This Directive has now been replaced by the 1993 Slaughter Directive, infra n.182. 3 Discussed infra Section III, IV, V. 4 Discussed infra Section III. 5 Discussed infra Section VI. 6 Consolidated Treaty Establishing the European Community, art. 249 (formerly art. 189) (emphasis added). www.europa.eu.int/eur lex/en/treaties/dat/ec_cons_treaty_en.pdf 7 Id. at art. 249. 8 Protocol on Protection and Welfare of Animals. 9 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts. Official Journal C340, 10.11.1997 p. 0110. 10 Treaty Establishing the European Community, supra n.6. 11 Id. at art.311 (formerly art.239). 4

The Protocol is important in two respects: 1) it recognises animals as sentient beings : its preamble states Desiring to ensure improved protection and respect for the welfare of animals as sentient beings ; and 2) 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. 12 III. MAIN EU ON-FARM LEGISLATIVE PROVISIONS The EU has enacted detailed Directives on pigs, calves and laying hens as well as a General Farm Animals Directive which applies a range of very broad provisions to all farmed animals. 13 A. Pigs EU law on pigs is contained in Council Directive 91/630/EEC laying down Minimum Standards for the Protection of Pigs, 14 as amended by Council Directive 2001/88/EC 15 and also by Commission Directive 2001/93/EC, 16 which amends the Annex to the 1991 Directive (the Pigs Directive). 1. Prohibition of Sow Gestation Crates and Tethering of Sows The key aspects of the EU Pigs Directive are that it prohibits the tethering of sows 17 and the use of sow gestation crates, 18, 19 which are widely regarded as among the most inhumane aspects of industrial livestock production. The construction of any new installations in which sows are tethered has been prohibited since 1 January 1996. 20 Existing installations using tethers are prohibited from 1 January 2006. 21 The Pigs Directive prohibits gestation crates by providing that sows must be kept in groups (i.e. not in individual crates) except for the first four weeks of their pregnancy. 22 New gestation crates are prohibited from 1 January 2003 and existing crates are prohibited from 1 January 2013. 23 The author is dismayed that the Directive permits the keeping of sows in crates for the first four weeks of pregnancy and believes that, when the Directive is reviewed, it should be amended to prohibit the use of gestation crates throughout the pregnancy; the Directive is due for review as regards the housing of sows in 2008. 24 12 See Protocol, supra n.8 (emphasis added). 13 Discussed infra in this Section. 14 Council Directive 91/630/EEC of 19 November 1991 laying down minimum standards for the protection of pigs. Official Journal L340, 11.12.1991 p. 0033 0038. 15 Council Directive 2001/88/EC of 23 October 2001 amending Directive 91/630/EEC laying down minimum standards for the protection of pigs. Official Journal L316, 01.12.2001 p. 0001 0004. 16 Commission Directive 2001/93/EC of 9 November 2001 amending Directive 91/630/EEC laying down minimum standards for the protection of pigs. Official Journal L316, 01.12.2001 p. 0036 0038. 17 1991 Pigs Directive, supra n.14, art. 3 (2), as amended by 2001 Pigs Directive, supra n.15, art. 3 (3). 18 1991 Pigs Directive, as amended by 2001 Pigs Directive, supra n.14 and 15, art. 3 (4). 19 The term sow gestation crates refers here to crates which are so narrow that the sow cannot even turn round. She is confined in the crate throughout her 16½ week pregnancy and for pregnancy after pregnancy, i.e. for most of her adult life. 20 1991 Pigs Directive, supra n.14, art. 3 (2). 21 1991 Pigs Directive, as amended by 2001 Pigs Directive, supra n.14 and 15, art. 3 (3). 22 Id. art. 3 (3). 23 Id. art. 3 (9). 24 Id. art. 6 (2). 5

The EU s prohibition of gestation crates is based on a 1997 report 25 by the European Commission s Scientific Veterinary Committee (SVC). 26 Indeed the 1991 Pigs Directive required any amendments to it to be based on an opinion from the SVC. 27 The SVC s report condemns sow gestation crates, concluding that No individual pen should be used which does not allow the sow to turn around easily. 28 This was crucial as, although there is no official definition of a gestation crate, EU animal welfare campaigners had traditionally defined it as a crate so narrow that the sow cannot turn round. The SVC also stresses that "Since overall welfare appears to be better when sows are not confined throughout gestation, sows should preferably be kept in groups. 29 The SVC s report also shows that, as compared with sows housed in groups, sows confined in crates have weaker bones and smaller muscles due to lack of exercise; 30 a poorer level of cardiovascular fitness, also due to lack of exercise; 31 and a higher incidence of urinary tract infections, associated with inactivity. 32 Moreover, stereotypies, such as bar-biting, which are a major indicator of poor welfare, are frequently observed in sows confined in crates or tethers. 33 The SVC also stated that abnormal inactivity and unresponsiveness are very widespread in confined sows and that since the extent of the inactivity and unresponsiveness indicates abnormal behaviour the sows may well be depressed in the clinical sense and poor welfare is indicated. 34 2. Hunger in Sows The food provided for pregnant sows is usually much less than that which they would choose to consume so the animals are hungry throughout much of their lives. 35 Restricted rations of concentrated feed are the norm. These provide for the nutritional requirements of the sow, but lack the bulk or roughage to satisfy her hunger. The 2001 amendments to the 1991 Pigs Directive address this problem by stipulating that to satisfy their hunger and given the need to chew, all... pregnant sows... must be given a 25 European Commission: Scientific Veterinary Committee, Animal Welfare Section. Report on the welfare of intensively kept pigs, 30 September 1997, at http://www.europa.eu.int/comm/food/fs/sc/oldcomm4/out17_en.pdf 26 The European Commission s SVC consists of independent scientists and veterinary experts. The SVC reports draw together and analyse a large number of scientific papers and provide a full review of the scientific literature in certain fields. In 1997 the SVC was replaced by the Scientific Committee on Animal Health and Animal Welfare (SCAHAW). The SCAHAW s reports are available at http://europa.eu.int/comm/food/fs/sc/scah/outcome_en.html#opinions In 2003 the SCAHAW was replaced by the scientific Panel on Animal Health and Welfare which has been established by the new European Food Safety Authority to provide scientific opinions. 27 1991 Pigs Directive, supra n.14, art. 6. 28 SVC report on pigs, supra n.25, Recommendation 73. 29 Id. 30 Id. section 5.2.7. 31 Id. section 5.2.7. 32 Id. section 5.2.5. 33 Id. section 5.2.2. 34 Id. section 5.2.2. 35 Id. Recommendation 69. 6

sufficient quantity of bulky or high-fibre food as well as high-energy food. 36 came into force on 1 January 2003. 37 This provision 3. Prohibition of Fully Slatted Floors for Sows Many pigs are kept on completely slatted floors; it is difficult to provide straw or other bedding on such floors as it tends to fall between the slats and obstruct the drainage system. The SVC concluded that bedded flooring is important for welfare as it: 1) provides physical and thermal comfort; 2) allows pigs to engage in their natural investigatory and manipulatory activities; and 3) in the case of straw, may provide dietary fiber. 38 The detrimental nature of fully slatted floors is recognised by the 2001 amendment to the 1991 Pigs Directive which stipulates that, in the case of pregnant sows, at least 1.3 square metres [1.55 square yards] per sow of the floor area must be continuous solid floor, i.e. completely slatted floors are prohibited. 39 This provision has been in force from 1 January 2003 in respect of new farms and comes into force in respect of existing farms on 1 January 2013. 40 4. Provision of Straw or some other Environmental Enrichment As indicated in the previous section, straw or some similar material is important both for physical and thermal comfort and to provide an outlet for pigs natural behaviours of chewing, rooting and investigating. Accordingly, the author welcomes the provision in the 2001 Commission Directive (which amends the Annex to the 1991 Pigs Directive) which stipulates that: pigs must have permanent access to a sufficient quantity of material to enable proper investigation and manipulation activities, such as straw, hay, wood, sawdust, mushroom compost, peat or a mixture of such.... 41 This provision came into force on 1 January 2003. 42 While the above provision is important in requiring the provision of environmental enrichment (i.e. the provision of materials to enable investigation and manipulation), it is disappointing in that it does not go so far as to require the provision of a sufficient quantity of straw or similar material to act as bedding. 5. Prohibition of routine tail-docking When, as is common, pigs are kept in overcrowded conditions and are given no straw or other manipulable materials, they are unable to perform their natural behaviours. In order to find an outlet for these frustrated instincts, they sometimes turn to the only other thing in their pens: the tails of other pigs. Out of boredom they begin to chew, and then bite each other s tails. To prevent this, farmers dock the tails. 36 1991 Pigs Directive as amended by 2001 Directive, supra n.14 and 15, art. 3 (7). 37 2001 Pigs Directive, supra n.15, art. 2. 38 SVC report on pigs, supra n.25. Recommendations 9 and 10. 39 1991 Pigs Directive as amended by 2001 Directive, supra n.14 and 15, art. 3 (2) (a). 40 Id. art. 3 (9). 41 Annex to 1991 Pigs Directive as amended by 2001 Commission Directive, supra n.14 and 16, Chapter I, para. 4. 42 2001 Commission Directive, supra n.16, art. 2. 7

Tail-docking involves amputating the lower part of the piglet s tail with either pliers or a hot docking iron. Usually the piglets are not given any anaesthetic. Farmers claim that they need to tail-dock their piglets in order to stop them from biting each other s tails. When part of the tail is cut away, the remaining tail is very sensitive to touch or oral manipulation. 43 As a result, a pig with a docked tail will move away much more quickly from an attempt at tail-biting than a pig with an intact tail, and will thereby prevent its tail being wounded. 44 The SVC report concluded that tail-docking is likely to be painful when it is carried out and that in some cases it leads to prolonged pain. 45 The SVC condemned tail-docking, concluding that The problems of injury following tail-biting should be solved by improved management rather than by tail-docking. 46 The SVC stressed that tail-biting can largely be prevented by keeping pigs at a stocking density which is not too high and by providing straw or other manipulable materials. 47 In the light of the above, the author welcomes the prohibition of routine tail-docking by the 2001 amendment to the 1991 Pigs Directive. The Directive provides that tail-docking must not be carried out routinely, but only where there is evidence that injuries to other pigs tails have occurred. 48 Crucially, the law stipulates that before carrying out tail-docking other measures shall be taken to prevent tail biting and other vices taking into account environment and stocking densities. For this reason inadequate environmental conditions or management systems must be changed. 49 This is an important legislative development as it compels farmers to improve the conditions in which pigs are kept, rather than resorting to routine tail-docking. This provision came into force on 1 January 2003. 50 B. Calves EU law on calves is contained in Council Directive 91/629/EEC laying down Minimum Standards for the Protection of Calves, 51 as amended by Council Directive 97/2/EC 52 and also by Commission Decision 97/182/EC, 53 which amends the Annex to the 1991 Directive (the Calves Directive). 1. Prohibition of Veal Crates The key aspect of the EU Calves Directive is that it prohibits the veal crate system, 54,55 which, along with sow gestation crates and battery cages for egg-laying hens, is widely regarded as one of the most inhumane aspects of factory farming. 43 SVC report on pigs, supra n.25, section 4.5.2 and Recommendation 39. 44 Id. 45 Id. Recommendation 39. 46 Id. Recommendation 40. 47 Id. Section 4.5.2. 48 Annex to 1991 Pigs Directive as amended by 2001 Commission Directive, supra n.14 and 16, Chapter I, art. 8. 49 Id. 50 2001 Commission Pigs Directive, supra n.16, art. 2. 51 Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves. Official Journal L340, 11.12.1991 p. 0028 0032. 52 Council Directive 97/2/EC of 20 January 1997 amending Directive 91/629/EEC laying down minimum standards for the protection of calves. Official Journal L025, 28.01.1997 p. 0024 0025. 53 Commission Decision 97/182/EC of 24 February 1997 amending the Annex to Directive 91/629/EEC laying down minimum standards for the protection of calves. Official Journal L076, 18.03.1997 p. 0030 0031. 54 1991 Calves Directive supra n.51, as amended by 1997 Council Directive and 1997 Commission Decision, supra n.52 & 53, art 3 (3) and points 8 & 11 of Annex. 8

New veal crates are prohibited from 1 January 1998 and existing veal crates are prohibited from 31 December 2006. 56 As with sow gestation crates, there is no official definition of a veal crate, but animal welfare campaigners traditionally define it as a crate so narrow that the calf cannot turn round. The EU Calves Directive prohibits veal crates by providing that calves must be kept in groups from the age of 8 weeks, unless a veterinarian certifies that an animal s health or behaviour requires it to be isolated in order to receive treatment. 57 Moreover, even where a calf is confined in an individual pen (i.e. before the age of 8 weeks, or pursuant to a veterinarian s certificate as referred to in the previous sentence), it cannot be kept in a veal crate as the Directive in effect provides that the pen must be large enough to enable the calf to turn round. 58 What the Directive states is that the width of any individual pen for a calf shall be at least equal to the height of the calf at the withers, measured in the standing position, and the length shall be at least equal to the body length of the calf, measured from the tip of the nose to the caudal edge of the tuber ischii (pin bone), multiplied by 1.1. 59 The prohibition of the narrow veal crate is extremely welcome, but it would be preferable from the welfare viewpoint if EU law required calves to be housed in groups from a very much earlier age than 8 weeks. Indeed, the Directive s recitals emphasise the importance of keeping calves in groups; it states whereas... it is recognised scientifically that calves should benefit from an environment corresponding to their needs as a herd-living species; whereas, for that reason, they should be reared in groups. 60 The EU s prohibition of the veal crate is firmly based on scientific research in this area. Indeed, the 1991 Calves Directive required a review of the Directive to be based on an opinion from the Scientific Veterinary Committee. 61 The SVC s 1995 report 62 is highly critical of the veal crate. The fact that a young animal needs proper exercise is recognised by the SVC which states that exercise is necessary for normal bone and muscle development. 63 The SVC added that If calves cannot move their limbs sufficiently they are likely to be severely distressed 64 and that after six months in an individual pen many calves have severe locomotor problems. 65 In its Conclusions the SVC report emphasised that Every calf should be able to groom itself properly, turn around, stand up and lie down normally and lie with its legs stretched out if it 55 The veal crate system has two essential characteristics: i) the calf is kept in a solid sided crate of wood, which is so narrow that the calf cannot even turn round from the age of about two weeks. Moreover, as the calf grows bigger, it cannot groom itself properly or stand up or lie down without difficulty; and ii) in order to produce the white veal prized by gourmets, the calf is fed on an extremely unhealthy diet deficient in iron and roughage; indeed, many crated calves are given no solid food at all. 56 1991 Calves Directive, as amended by 1997 Calves Directive, supra n.51 & 52, art 3 (3). 57 Id. 58 Id. 59 Id. 60 1997 Calves Directive, supra n.52, recitals (emphasis added). 61 1991 Calves Directive, supra n.51, art. 6. 62 European Commission: Scientific Veterinary Committee, Animal Welfare Section. Report on the welfare of calves. 9 November 1995. Brussels, Belgium. 63 Id. page 23. 64 Id. page 23. 65 Id. page 23. 9

wishes to do so. 66 crate. As the calf grows bigger, none of these activities are possible in the veal The SVC concluded that the welfare of calves kept in veal crates is very poor. 67 Their report stated The welfare of calves is very poor when they are kept in small individual pens with insufficient room for comfortable lying, no direct social contact and no bedding or other material to manipulate. 68 2. Prohibition of tethering of calves The tethering of calves has been prohibited 69 since 1 January 1998. 70 This provision is based on the SVC report, which concluded that tethering always causes problems for calves. 71 3. Requirement to provide solid food and dietary iron The all-liquid, iron-deficient diet, which is the norm in the veal crate system, has been prohibited 72 by EU law since 1 January 1998. 73 The SVC report is highly critical of this diet. It points out that calves fed on a milk diet with no solid feed [the diet given to most crated calves] would die before adulthood so it is clear that such a diet is not sufficient for healthy growth. 74 In other words, crated calves are being fed a lethal diet which would eventually kill them if they were not slaughtered first. The SVC report concluded that calves which are given a diet which is deficient in iron and, for calves older than 4 weeks, deficient in roughage (i.e. the diet which is commonplace in the veal crate system) can have serious health problems, can show serious abnormalities of behaviour, and can have substantial abnormalities in gut development. 75 Since 1 January 1998, EU law has required that: 1) each calf over 2 weeks old shall be provided with a minimum daily ration of fibrous food, the quantity being raised from 50 grammes (g.) [1.8 ounces] to 250 g. [8.8 ounces] per day for calves from 8-20 weeks old; 76 and 2) calves food shall contain sufficient iron to ensure an average blood haemoglobin level of at least 4.5 millimols per litre. 77 This provision is extremely welcome, but does not go far enough in requiring a proper diet for calves. The SVC report concluded that calves should receive a minimum of 100 66 Id. conclusion 14. 67 Id. conclusion 10 (emphasis added). 68 Id. conclusion 10. 69 Annex to 1991 Calves Directive, as amended by 1997 Commission Decision, supra n.51 & 53, Point 8. 70 1997 Commission Decision on Calves, supra n.53, art. 2. 71 SVC report on calves, supra n.62, conclusion 11. 72 Annex to 1991 Calves Directive, as amended by 1997 Commission Decision, supra n.51 & 53, Point 11. 73 1997 Commission Decision on Calves, supra n.53, art. 2. 74 SVC report on calves, supra n.62, page 23. 75 Id conclusion 20. 76 Annex to 1991 Calves Directive, as amended by 1997 Commission Decision, supra n.51 & 53, Point 11. 77 Id. 10

g. [3.5 ounces] of roughage per day from 2 to 15 weeks of age, increasing to 250 g. [8.8 ounces] per day from 15 to 26 weeks of age but it would be better if these amounts were doubled. 78 C. Egg-laying hens EU law on laying hens is contained in Council Directive 1999/74/EC laying down Minimum Standards for the Protection of Laying Hens. 79 1. Prohibition of Battery Cages The Directive prohibits existing battery cages 80 from 1 January 2012. 81 No new battery cages may be brought into service from 1 January 2003. 82 Moreover, from 1 January 2003, battery cages must provide each hen with at least 550 (cm²) [85.25 square inches] of cage area and must be fitted with suitable claw-shortening devices. 83 In addition, cages must be at least 40 centimetres (cm.) [15.8 inches] high over at least 65% of the cage area and not less than 35 cm. [13.8 inches] at any point. 84 The prohibition of battery cages is based on sound scientific research. An earlier Directive on hens had required a review of the Directive to be based on an opinion of the Scientific Veterinary Committee (SVC). 85 The SVC s 1996 report was highly critical of battery cages, concluding that current battery cage systems provide a barren environment for the birds... It is clear that because of its small size and its barrenness, the battery cage as used at present has inherent severe disadvantages for the welfare of hens. 86 The prohibition of battery cages is, of course, extremely welcome. Unfortunately, however, the 1999 Hens Directive permits the use of so-called enriched cages. 87 Under the Directive, enriched cages must, from 1 January 2002, provide each hen with at least 600 cm² [93 square inches] of usable cage floor area, which must be at least 45 cm. [17.8 inches] in height, and another at least 150 cm² [23.25 square inches] of cage floor area per hen which need be only 20 cm. [7.9 inches] high and which is used for a nest; the Directive stipulates that a nest must be provided. 88 In addition, enriched 78 SVC report on calves, supra n.62, conclusion 23 (emphasis added). 79 Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens. Official Journal L203, 03.08.1999 p. 0053 0057. 80 The term battery cages refers here to cages which usually contain anything from 5 11 hens and which are so small that the hens cannot even stretch their wings. Moreover, in the cage it is impossible for hens to carry out most of their natural behaviours such as laying their eggs in a nest, pecking and scratching at the ground, dustbathing and perching. 81 1999 Hens Directive, supra n.79, art.5 (2). 82 Id. art. 5 (2). 83 Id. art. 5 (1) (1) and art. 5 (1) (6). 84 Id. art. 5 (1) (4). 85 Council Directive 88/166/EEC of 7 March 1988 laying down minimum standards for the protection of laying hens kept in battery cages, art. 9. Official Journal L74, 19.3.1988, p. 83. 86 European Commission: Scientific Veterinary Committee, Animal Welfare Section. Report on the welfare of laying hens. 30 October 1996. Brussels, Belgium. Conclusion 9 (emphasis added). 87 1999 Hens Directive, supra n.79, art. 6. 88 Id. art. 6 (1) (a) & (b) and art. 2 (2) (d). 11

cages must provide litter such that pecking and scratching are possible, perches allowing at least 15 cm. [5.9 inches] per hen and suitable claw-shortening devices. 89 Enriched cages offer no significant or worthwhile welfare benefits to hens; this is because the space and height required are too small and the facilities for nesting, perching, pecking and scratching are too meagre to enable hens to engage in natural movements and behaviours. 90 One EU Member State, Germany, has recognised this and has prohibited enriched cages from 2012. 91 It would be a major missed opportunity if the Hens Directive simply led to battery cages being replaced with enriched cages. Instead, farmers should change to perchery 92 or free-range 93 systems which, if well-designed and well-managed, can provide good welfare for hens. 2. Free-range and perchery systems In practice, free-range hens must not only have access to outdoor runs, but must also have indoor housing for the night-time. The 1999 Hens Directive stipulates that percheries and the indoor housing for free-range hens must (1) provide at least 250 cm² [38.75 square inches] of littered area per hen, the litter occupying at least one third of the ground surface of the house; 94 and (2) have a maximum stocking density of 9 hens per square metre (m²) [1.2 square yards] of usable area. 95 These requirements came into force on 1 January 2002 for new systems and come into force for existing systems on 1 January 2007. 96 Additional provisions for free-range hens apply by virtue of EU law on egg labelling. From 1 January 2004, all egg packs must be labelled as to farming method. 97 Only three labelling terms are permitted: eggs from caged hens ; barn eggs [from hens kept in percheries]; and free-range eggs. 98 Eggs bearing the free-range label must by law come from hens who have continuous daytime access to open-air runs which are mainly covered with vegetation. 99 Moreover, the maximum outdoor stocking density must not exceed 2,500 hens per hectare [2.47 89 Id. art. 6 (1) (c) & (d) and 6 (5) and art. 2 (2) (d). 90 Philip Lymbery, Laid Bare... The case against enriched cages in Europe. 2002. Compassion in World Farming Trust, Petersfield, UK. Available at: http://www.ciwf.co.uk/pubs/reports/enriched_cages_report_2002.pdf 91 Erste Verordnung zur Änderung der Tierschutz Nutztierhaltungsverordnung. 28.2.2002. Bundesgesetz blatt 2002. Teil I, Nr. 16S. 1026 [BGBI.I 2002 Nr. 16S. 1026]. 92 The term percheries refers here to systems where hens are housed in large barns in which they are free to move around. 93 The term free range refers here to systems in which hens are able to spend their daylight hours outdoors. 94 1999 Hens Directive, supra n.79, art. 4 (1) (1) (e). 95 Id. art. 4 (1) (4). 96 Id. art 4 (1) & (2). 97 Council Regulation (EEC) No. 1907/90 of 26 June 1990 on certain marketing standards for eggs, Official Journal L173, 6.7.1990, p. 0005 0011, as amended by Council Regulation (EC) No. 5/2001 of 19 December 2000, Official Journal L002, 5.1.2001, p. 0001 0003, art. 10. 98 Commission Regulation (EEC) No. 1274/91 of 15 May 1991 introducing detailed rules for implementing Regulation (EEC) No. 1907/90 on certain marketing standards for eggs, Official Journal L121, 16.5.1991, p. 0011 0024, as amended by Commission Regulation (EC) No. 1651/2001 of 14 August 2001, Official Journal L220, 15.8.2001, p. 0005 0011, art. 18 and Annex III. 99 Id. Annex III, para. (a), 1st and 2nd indents. 12

acres] of ground available to the hens or one hen per 4 m² [4.8 square yards] at all times. 100 3. De-beaking 101 The 1999 Hens Directive prohibits all mutilations, but then goes on to provide that, in order to prevent feather pecking and cannibalism, Member States may authorise beak trimming provided it is carried out by qualified staff on chickens who are less than 10 days old. 102 England, however, went further when it transposed the Directive into its national law and has prohibited all de-beaking from 1 January 2011. 103 4. Forced molting Forced molting 104 - when it involves depriving hens of feed for long periods of time is prohibited by EU law. The relevant provisions are found in Council Directive 98/58/EC concerning the Protection of Animals Kept for Farming Purposes. 105 Paragraph 14 of the Directive s Annex provides that: Animals must be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health and satisfy their nutritional needs. 106 The practice of depriving hens of feed for several days at a time clearly breaches the requirement to provide feed in sufficient quantity to maintain them in good health. In addition, paragraph 15 of the Annex provides that: All animals must have access to feed at intervals appropriate to their physiological needs. 107 Hens from whom feed is withheld for several days are not being given feed at intervals appropriate to their physiological needs. D. General Farm Animals Directive So far this article has examined EU Directives which lay down detailed laws concerning specific species, i.e. pigs, calves and egg-laying hens. The EU has also enacted, in 1998, a Directive which contains provisions which affect all animals (including fish) bred or kept for the production of food, wool, skin or fur or for other farming purposes. 108 This 100 Id. 101 The term de beaking refers here to the process whereby part of the hen s beak is sliced off with a hot blade. 102 1999 Hens Directive, supra n.79, Annex, Point 8. 103 The Welfare of Farmed Animals (England) Regulations 2000, S.I. 2000/1870, as amended by The Welfare of Farmed Animals (England) (Amendment) Regulations 2002, S.I. 2002/1646, Schedule 3D, paras. 8 and 9. 104 The term forced molting refers here to the practice in which hens are deprived of feed from around 5 14 days to shock them back into lay. 105 Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes. Official Journal L221, 08.08.1998 p. 0023 0027. 106 Id. Annex, paragraph 14. 107 Id. Annex, paragraph 15. 108 Id. Definition of animal in Article 2. 13

is commonly referred to as the General Farm Animals Directive. Some of this Directive s provisions are couched in broad terms, others are more specific. One fundamental provision in the 1998 Directive is Article 3, which requires EU Member States to: make provision to ensure that the owners or keepers take all reasonable steps to ensure the welfare of animals under their care and to ensure that those animals are not caused any unnecessary pain, suffering or injury. 109 This provision could arguably be used to challenge the legality of industrial rearing systems. It should not be difficult to establish that such systems cause pain, suffering and/or injury. The challenge would principally turn around what is meant by unnecessary. It could be argued that the pain, suffering or injury involved in industrial animal production is not necessary as in each case viable non-industrial alternatives are available. Another core provision of the 1998 Directive is headed Freedom of movement and states that: The freedom of movement of an animal, having regard to its species and in accordance with established experience and scientific knowledge, must not be restricted in such a way as to cause it unnecessary suffering or injury. Where an animal is continuously or regularly tethered or confined, it must be given the space appropriate to its physiological and ethological needs in accordance with established experience and scientific knowledge. 110 This crucial provision, too, could be deployed against industrial close confinement systems. In many cases scientific knowledge clearly indicates that the amount of space provided by close confinement systems is insufficient to meet animals physiological, and particularly their ethological, needs. Similarly, the practice of force feeding 111 geese and ducks to produce foie gras could be challenged under another of the 1998 Directive s provisions which states that: No animal shall be provided with food or liquid in a manner... which may cause unnecessary suffering or injury. 112 Force feeding clearly causes suffering and injury. 113 In its 1998 report the European Commission s Scientific Committee on Animal Health and Animal Welfare (SCAHAW) concluded that, as a result of force feeding, normal liver structure and function is 109 Id. Art. 3. 110 Id. Annex, paragraph 7. 111 The term force feeding refers here to the practice of forcing ducks and geese to swallow excessive amounts of food to produce foie gras, i.e. fat liver. A 20 30 cm. long pipe is thrust down the bird s throat; food is then pumped into the bird through this pipe. By the end of the force feeding period, the birds livers are swollen to 6 10 times their normal size. 112 General Farm Animals Directive, supra n.105, Annex, para. 14. 113 European Commission s Scientific Committee on Animal Health and Animal Welfare s report on the Welfare Aspects of the Production of Foie Gras in Ducks and Geese. 16 December 1998, Brussels, Belgium. http://www.europa.eu.int/comm/food/fs/sc/scah/out17_en.html 14

severely altered and compromised. 114 The SCAHAW stressed that force feeding, as currently practised, is detrimental to the welfare of the birds. 115 Their report also pointed out the potentially damaging and distressing effects of the insertion of the feeding tube into the oesophagus. 116 This can result in accumulated scar tissue in, and serious injury to, the oesophagus of ducks. 117 In particular, insertion of the tube can result in inflammation of the bird s neck, and bruising and even perforation of the oesophagus. 118 The SCAHAW report concluded that the mortality rate in force fed birds varies from 2% to 4% in the two week force feeding period compared with around 0.2% in comparable ducks. 119 In the light of the above health and welfare problems inflicted on ducks and geese by force feeding, it is difficult to believe that this practice does not contravene the 1998 Directive s prohibition on providing food in a manner... which may cause unnecessary suffering or injury. Another crucial provision of the 1998 Directive stipulates that: No animal shall be kept for farming purposes unless it can reasonably be expected on the basis of its genotype or phenotype, that it can be kept without detrimental effect on its health or welfare. 120 This provision could be used to challenge the use of genotypes which have been selected for such high levels of productivity that the animals suffer from serious health and welfare problems. For example, modern broilers (the chickens reared for their meat) have been bred to grow so quickly that many suffer from painful leg disorders. 121 Similarly, dairy cows have been bred to produce extremely high milk yields; this leads to metabolic hunger, increased incidences of lameness, lethal production diseases and finally to cows suffering a severe loss of body condition and becoming chronically exhausted. 122 E. Broiler Chickens There are no EU laws directly covering the welfare of broilers 123 on-farm although, like all farmed animals, they are covered by the 1998 General Farm Animals Directive. 124 The 114 Id. section 5.5. 115 Id. conclusion. 116 Id. Summary, section II (2). 117 Id. section 5.4.6 and Summary, section II (6). 118 Forced feeding: An inquiry into the welfare of ducks and geese kept for the production of foie gras. Produced by Advocates for Animals and the World Society for the Protection of Animals. Carol McKenna, February 2000. 119 SCAHAW report on foie gras, supra n.113, section 5.5. 120 1998 General Farm Animals Directive, supra n.105, Annex, paragraph 21. 121 European Commission s Scientific Committee on Animal Health and Animal Welfare s report on the Welfare of Chickens Kept for Meat Production (Broilers). 21 March 2000, Brussels, Belgium. http://www.europe.eu.int/comm/food/fs/sc/scah/out39_en.pdf 122 Professor John Webster. Animal Welfare: A Cool Eye Towards Eden. Blackwell Science. 1994. ISBN 0 632 03928 0. 123 The term broilers refers here to the chickens reared for their meat; they are a different flock and have different welfare problems from egg laying hens. 124 1998 Directive, supra n.105. 15

European Commission has stated that it is preparing a proposed Directive laying down minimum standards for the protection of broiler chickens. 125 Some legal protection is, however, in effect already extended to certain broilers by the 1991 Commission Regulation on certain marketing standards for poultry meat. 126 This provides that if certain labelling terms are used, the meat must come from chickens reared to certain specified standards. 127 Meat sold as free range must be derived from chickens: 1) whose indoor housing s stocking rate does not exceed 13 chickens per square metre [1.2 square yards]; 128 2) who have during at least half their lifetime, continuous daytime access to open-air runs comprising an area mainly covered by vegetation of not less than 1 square metre [1.2 square yards] per chicken; 129 and who are not slaughtered until 56 days of age or later. 130 This last point is crucial as most modern broilers have been genetically selected to grow so quickly that they reach their slaughter weight at around 42 days of age, or less, which is twice as fast as around 25 years ago. 131 The birds legs, heart and lungs often cannot properly support the rapidly growing body, with the result that a substantial proportion experience painful leg disorders and die of heart failure. 132 These problems could be substantially reduced by the use of slower growing broiler genotypes. 133 Meat sold under the label traditional free range must come from chickens reared to higher standards than ordinary free range. The chickens must: 1) be stocked in their indoor housing at no more than 12 birds per square metre [1.2 square yards] (this can be increased to 20 birds per square metre where mobile houses are used); 134 2) be kept in a poultryhouse which does not contain more than 4,800 chickens; 135 3) have continuous daytime access to open-air runs at least from the age of 6 weeks, which runs must comprise an area mainly covered by vegetation amounting to at least 2 square metres [2.4 square yards] per chicken; 136 and 4) crucially, be from a strain recognised as slow growing and be at least 81 days of age at slaughter. 137 125 Letter dated 17 March 2003 to author from David Byrne, European Commissioner for Health and Consumer Protection. 126 Commission Regulation (EEC) No. 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No. 1906/90 on certain marketing standards for poultry meat. Official Journal L143, 7.6.1991, p. 0011. Consolidated text produced by the CONSLEG system of the Office for Official Publications of the European Communities. 127 Id. art. 10 (1). 128 Id. Annex IV, para. (c), 1st indent. 129 Id. Annex IV, para. (c), 2nd indent. 130 Id. Annex IV, paras. (b), 2nd indent and (c), 1st indent. 131 McKay J.C., Barton N.F., Koerhuis A.N.M. and McAdam J., 2000. The challenge of genetic change in the broiler chicken. British Society of Animal Science. Occasional Publication; No. 27. 132 European Commission s Scientific Committee on Animal Health and Animal Welfare report on broilers, supra n.121. 133 Kestin S.C., Gordon S., Su G., and Sorensen P., 2001. Relationships in broiler chickens between lameness, liveweight, growth rate and age. Veterinary Record (2001) 148: 195 197. 134 European Commission Regulation on Marketing Standards for Poultry Meat, supra n.126, Annex IV, para. (d), 1st indent. 135 Id. Annex IV, para. (d), 3rd indent. 136 Id. Annex IV, para. (d), 4th and 5th indents. 137 Id. Annex IV, para. (d), 6th and 8th indents. 16

F. Bovine Somatotrophin EU law prohibits the use in dairy cows of bovine somatotrophin (BST). 138, 139 (BST is also known as Bovine Growth Hormone (BGH)). The way that EU law prohibits the use of BST is that it prohibits the placing of BST on the market within the EU for the purpose of its administration to dairy cows by any means whatsoever. 140 The EU s prohibition is based on a report by the Scientific Committee on Animal Health and Animal Welfare (SCAHAW) which concluded that BST increases the risk of clinical mastitis as well as the duration of treatment of mastitis, that it increases the incidence of foot and leg disorders and that it can induce severe reactions at the injection site. 141 The SCAHAW report also stated that BST administration causes substantially and very significantly poorer welfare because of increased foot disorders, mastitis, reproductive disorders and other productionrelated diseases. These are problems which would not occur if BST were not used and often result in unnecessary pain, suffering and distress. 142 The recitals to the EU law point out that diseases such as mastitis, foot lesions and injection site reactions are both painful and debilitating and can lead to poorer welfare and greater morbidity. 143 G. Patenting of Animals Those concerned with animal welfare oppose the granting of patents on animals, or on processes for producing animals, as the availability of patents gives a very considerable commercial boost to the genetic engineering of animals, which often has extremely damaging impacts on the health and welfare of the animals involved. 144 EU law unfortunately permits animals to be patented, but does at least provide a limited, but important, protection for animals. 145 The protection arises from a provision which states that inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality. 146 The law goes on to provide that, on the basis of this morality clause, certain things shall be considered unpatentable including, crucially: processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes. 147 138 The term Bovine Somatotrophin (BST) refers here to a genetically engineered version of the dairy cow s own growth hormone. It is administered to dairy cows to increase their milk yield. 139 Council Decision of 17 December 1999 concerning the placing on the market and administration of Bovine Somatotrophin (BST) and repealing Decision 90/218/EEC. Official Journal L331, 23.12.1999, p. 0071 0072. 140 Id. Art, 1. 141 European Commission s Scientific Committee on Animal Health and Animal Welfare report on Animal Welfare Aspects of the Use of Bovine Somatotrophin. Brussels, Belgium. 10 March 1999. Conclusions 14 16 and 18. http://www.europa.eu.int/comm/food/fs/sc/scah/out21_en.html 142 Id. General Conclusion. 143 Council Decision on BST, supra n.139, recital 9. 144 Turner J., 2002. The gene and the stable door: biotechnology and farm animals. Compassion in World Farming Trust, Petersfield, UK. ISBN 1 900156 19 9. Available at: http://www.ciwf.co.uk/pubs/reports/genetic_report_0102.pdf 145 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the Legal Protection of Biotechnological Inventions. Official Journal L213, 30.7.98, p. 0013 0021. Arts. 4 (2) & 6. 146 Id. art. 6 (1). 147 Id. art. 6 (2). 17

This provision is important as it means that if the process for producing a genetically engineered high-productivity farm animal is likely to cause suffering, a patent cannot be granted even if the applicant demonstrates a benefit such as faster growth or higher yield as only a medical benefit can overturn the unpatentability of a process likely to cause suffering. Note also that even in the case of a medical benefit, it must be substantial if it is to render a process patentable. 148 IV. MAIN EU LEGISLATIVE PROVISIONS ON THE TRANSPORT OF FARM ANIMALS EU law contains some helpful provisions on the transport of farm animals, but sadly these do nothing to prevent animals being transported from one end of Europe to another on journeys which can last 70-90 hours or more. 149 The EU Transport Directive 150 lays down an overarching requirement that transporters must not transport any animal, or cause any animal to be transported, in a way which is likely to cause injury or undue suffering to that animal. 151 The Directive s main provisions are as follows: A. Fitness for transport The Directive prohibits the transport of animals that are not fit for the intended journey. 152 It states that animals that are ill or injured shall not be considered fit for transport. 153 It also provides that animals who fall ill or are injured during transport must receive first-aid treatment as soon as possible; they must be given appropriate veterinary treatment and, if necessary, undergo emergency slaughter in a way which does not cause them any unnecessary suffering. 154 A related provision stipulates that when cows in milk are being transported they must be milked at intervals of about 12 hours but not exceeding 15 hours. 155 B. Authorisation of transporters Transporters must have an authorisation (i.e. a licence) to transport animals, 156 which can be suspended or withdrawn in the case of repeated breaches of the Directive or breaches involving serious suffering for the animals. 157 148 Id. 149 Europe s long distance transport of live animals, 2003. Compassion in World Farming, Petersfield, UK. 150 Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport L340, 11.12.91 p. 0017 0027 as amended by Council Directive 95/29/EC of 29 June 1995, L148, 30.6.95 p. 0052 0063. 151 Id. art. 5A (1) (b). 152 Id. art. 3 (1) (b). 153 Id. art. 3 (1) (b). 154 Id. art. 3 (1) (c). 155 Id. Annex, Chapter 1, point 7 (b). 156 Id. art. 5A (1) (a) (ii). 157 Id. art. 18 (2). 18