Full Title Name:  Detailed Discussion of European Animal Welfare Laws 2003 to Present: Explaining the Downturn

I. Introduction

Of all the globe’s continents, Europe is home to the most comprehensive legal protections of animals. Europeans created modern animal law at the dawn of the nineteenth century, and, two hundred years later, remain its most advanced practitioners. Recently, the law they created has spread outward, to the United States and other nations, some of which have seen rapid progress forward on legal protections for animals. In the face of this growth across the globe, however, it is worth inquiring how animal law has been growing in its birthplace, Europe, in recent years. This Essay aims to answer that question: to provide an overview of recent animal welfare and rights legislation that shows what has been getting passed, what has not been getting passed, and why. Because the Animal Legal and Historical Web Center’s prior paper on European law [ 1 ] covers the period through 2003, this paper focuses on the six years since then. [ 2 ]

The Paper proceeds in four parts. Part I addresses the current legal landscape for animals in Europe, briefly summarizing legislation before 2003 and focusing in depth on the legislation since then, which has included, among other things, hen welfare laws and anti-fur laws at the EU level, and bold legal reform on a variety of fronts in Austria. Part II describes the recent slowdown in progressive animal welfare legislation, detailing various ways in which it is discernable. Part III seeks to account for why the slowdown has occurred, seizing upon five factors: prior successes, EU membership changes, implementation issues, and, to a smaller extent, extremist attacks the weakening reputation of the animal rights movement. Finally, Part IV looks to the future, using recent history to venture some educated guesses about what can be expected on the animal welfare front in coming years.

II. Part I: The Current Legal Landscape for Animals in Europe

Part I of this article provides an overview of the current legal terrain for animals in Europe. It proceeds in three parts, the first two of which are introductory in nature. First, it provides a background of the modern animal rights movement—the wellspring for all of today’s current animal welfare legislation. [ 3 ] Next, it proceeds to a discussion of the important European animal welfare legislation from the year European animal welfare legislation got its start, in 1974, through the close of the twentieth century. [ 4 ] Third, it reaches its main point of discussion: on legal steps forward the EU made in recent years since 2003.   As will be seen, there has been significant movement forward on progressive animal welfare legislation in the past thirty-five years, and a few important steps forward in recent years. Ultimately, however, Part I demonstrates that in the very recent times, little new ground has been broken.

A. History of the Modern Animal Rights Movement

Today’s animal rights movement stems from roots that extend deep into the past—to the eighteenth and nineteenth centuries. [ 5 ] England was the birthplace of the first animal rights legislation. There, the first animal protection law—a bill to abolish bull-baiting, a practice in which a bull was tied to a stake and then immobilized by a pack of dogs for a crowd’s entertainment—was proposed in 1802, though it did not pass. Three decades later, England successfully passed other animal protection measures—first protecting cattle, and then other animals. [ 6 ] Later in the nineteenth century, legal reform on behalf of animals spread outward from England—across the Channel to continental Europe, [ 7 ] and across the Atlantic to the United States, where the American Society for the Prevention of Cruelty to Animals (ASPCA) was founded in 1866. Following a slower period for animal welfare legislation in the early to mid twentieth-century—a period that witnessed, in the wake of World War II, the birth of the factory farm [ 8 ] —the modern animal rights movement got its start in the 1960s.

In the modern movement, Britain served once again as the birthplace for reform. [ 9 ] By the 1960s, England had been home to animal protection NGOs for decades, and its population was well primed for a small revolution in outlook. Small groups of animal rights activists that opposed hunting with hounds helped bring animal issues to the forefront of public consciousness. But more responsible for triggering this development than anything else was Animal Machines , [ 10 ] a book that detailed the grisly realities of factory farming for the British public. Ruth Harrison’s book on factory farming galvanized Britons on the issue of animal suffering—both on and off the farm. [ 11 ] This drive for reform led to the formation of a parliamentary committee on farming practices, and the eventual passage of farm animal welfare legislation guaranteeing animals the “five freedoms.” These consisted, in the words of the Committee, of the animal’s freedom to “ have sufficient freedom of movement to be able without difficulty to turn around, groom itself, get up, lie down, [and] stretch its limbs.” [ 12 ] As the animal rights movement spread, the “five freedoms” were later incorporated into legislation in European and other Western nations. [ 13 ]

If there was any group that helped keep the animal movement alive in its fledgling early days, it was philosophers. As activists were getting things in motion, philosophers promptly started publishing works on animal ethics and lent the movement intellectual credibility. Philosophers, as James Jasper and Dorothy Nelkin have put it, “served as midwives of the animal rights movement in the late 1970s,” [ 14 ] helping activists prevent the movement from, in one authority’s words, “being stillborn.” [ 15 ] Much of the academic activity on animals was conducted outside of Europe, with most of the leading philosophers on the animal issue—Peter Singer, an Australian who has taught for years at Princeton; American law professor Gary Francione; the Harvard philosopher Robert Nozick—based in the United States. Though the intellectual home base of the movement established itself fairly quickly in American academia, however, the core of the activist and legal movement remained firmly in Europe, where, to this day, overwhelming majorities profess concern with protecting the welfare of farm animals, [ 16 ] and wide swaths of the population voice dissatisfaction with current farming conditions. [ 17 ] The animal rights movement, in short, has flourished most in the place where it got its start: Europe.

B.  European Law

The relatively high levels of activism and public support for animal welfare seen in Europe have, as citizens of democracies would expect, manifested themselves in relatively progressive animal laws. Europeans have spoken out, and European politicians have in large part listened. [ 18 ] Two authorities on animal law recently have put things plainly: “The protection given to farm animals is much stronger in Europe, where most countries have banned several of the practices still common in the United States.” [ 19 ] This section of the Paper provides an overview of modern European animal law since its inception just over thirty years ago. First, it discusses European and EU-wide animal laws through 2003, and next it provides a domestic overview of animal laws, country by country—again through 2003. Section II thus provides a backdrop for Part I’s main focus, on legal developments in European law over the past six years.

1.  Legislative Background: EU-Wide Legislation in the Late Twentieth Century

The roots of European animal law—transnational animal law applicable across European borders—extend almost to the beginning of the modern animal rights movement, to 1974. That year, the countries in the Council of Europe, the predecessor to the European Union, passed a directive requiring animals to be rendered unconscious before slaughter. [ 20 ] Two years later, in 1976, the European Convention for the Protection of Animals Kept for Farming Purposes was passed. This legislation mandated that farm animals be raised in conditions that meet their “physiological and ethological needs,” [ 21 ] requiring that the temperature, lighting, and space afforded to the animals be somewhat consistent with their natural conditions. To this day, the United States has passed no comparable statute regulating animals’ everyday existence on farms. [ 22 ] Legislative reform in this period also came to cover not only life for animals as they are raised on the farm, but also life as animals are both transported to and undergoing slaughter. [ 23 ]

It was not until the early nineteen nineties, which witnessed the birth of the modern European Union in 1993, that a decade of truly significant animal welfare reform commenced. Much of this reform centered on setting minimum welfare standards for the major classes of farm animals. In 1991, for instance, minimum welfare standards for veal calves that prohibited use of tethers, and required new veal housing units to allow space for turning around, were passed. [ 24 ] In 1997, another important veal measure passed, forbidding the pen confinement of calves older than eight weeks of age.

On the hen front, starting in 1999, the European Union passed legislation phasing out the use of barren battery cages—confinement systems employed in egg production in which hens must literally be stacked on top of each other to fit. Construction of new such cages was immediately banned, and any use of such cages whatsoever was banned after 2012. [ 25 ]

It was not until the following decade the EU turned its attention to pigs, prohibiting tethers, as it had done for veal calves a decade before. It also passed a law phasing out the use of gestation crates—tight metal enclosures used to keep female pigs confined on their sides throughout their pregnancies, and often their adult lives. Use of new gestation crates was banned from 2003 onwards, and the use of any gestation crate was banned from 2013 onwards. The EU also created minimum floor-size requirements for all rearing pigs.

The most significant events in animal law in the run-up to and arrival of the turn of the millennium came late in the decade, with the EU’s adoption of the Protocol on Animal Protection and the now-famous “Five Freedoms." The first of these, formally named the Protocol on the Protection and Welfare of Animals, was annexed in 1997 to the Treaty establishing the European Community. [ 26 ] The Protocol was significant in at least two key regards, as the Compassion in World Farming Trust has noted. First, and most fundamentally, it recognized animals not as mere chattel, but as “sentient beings.” [ 27 ] Second, it required states in the European Union to pay not minor but “full regard to the welfare requirements of animals” when setting policy on farming, transport, and animal experimentation. [ 28 ] The Protocol did have its limitations—it is only to be taken into account as one of various priorities, and cannot alone serve as the basis for legislation. [ 29 ] It was nonetheless a milestone in European law, an explicit legislative recognition that animals could feel pain, and that their pain ought to be minimized.

The next year, 1998, was similarly momentous for the development of European animal welfare laws. That year, a crucial piece of legislation, Council Directive 98/58/EC Concerning the Protection of Animals Kept for Farming Purposes, was passed. Unlike much of the prior legislation of the 1990s, this directive did not target a specific species of farm animal like hens or veal calves. Instead, it set out general rules for the protection of animals of all species kept for the production of food, clothing, or other agricultural purposes—including fish and reptiles. Modeled after the European Convention for the Protection of Animals kept for Farming Purposes, the directive followed the so-called “Five Freedoms” originally conceived in England, and previously adopted by the Farm Animal Welfare Council. As summarized by the EU, the five freedoms included:

• Freedom from hunger and thirst—access to fresh water and a diet for full health and vigor,
• Freedom from discomfort—an appropriate environment with shelter and comfortable rest area
• Freedom from pain, injury and disease—prevention or rapid treatment,
• Freedom to express normal behaviour—adequate space and facilities, company of the animal's own kind
• Freedom from fear and distress—conditions and treatment which avoid mental sufferings. [ 30 ]

As the directive made clear, the EU-wide standards set out in its text constituted a floor and not a ceiling—a minimum standard of protection beyond which companies were free to move in their domestic animal welfare legislation. In the coming years, many European states would adopt laws that went well beyond the EU minimums in the protection of their own animals.

Between the Protocol, the adoption of the Five Freedoms, and the multitude of species-specific legislation, a trend toward more progressive legislation was under way through 2003. Change was afoot in European animal law.

2.  Recent Animal Welfare Legislation (2003 and After)

Since then, however, the legislative story in Europe has become slightly more complicated. It is on this period—2003 and beyond—that this paper focuses in the remainder of Part I and in all its subsequent parts. This section thus provides a lay of the land from the past six years, an overview of the major steps forward in animal welfare legislation. Some of EU’s recent legislation has been on farm animals in general; most of it has been narrowly tailored to specific species. After discussing the former category, this Section moves on to the latter, discussing new developments in the legal landscape for hens, veal calves, and pigs, respectively.

i.  General Farm Legislation

Recent years have seen various new examples of progressive EU level legislation on behalf of European farm animals. In January 2006, just after the rotating presidency of the European Commission was allotted to Austria, a famously animal-friendly country at the time, the Commission published a communication to both branches of the European legislature, the Council and Parliament, outlining an Action Plan for the Protection and Welfare of Animals. [ 31 ] The Plan laid out specific measures to be taken from 2006 through 2010 “to improve animal welfare in the EU and to further promote it internationally.” [ 32 ] These measures included, as summarized by the EU,

• Upgrading minimum standards for animal protection and welfare  
• Giving high priority to promoting animal welfare related research and the application of the “3 Rs” principle to animal testing—replacement, reduction and refinement of the use of animals in experiments;
• Introducing standardized animal welfare indicators;
• Ensuring animal handlers and the general public are more involved and informed on animal welfare issues;
• Supporting and initiating further international initiatives to raise awareness of, and create greater consensus on, animal welfare. [ 33 ]

Later in 2006, on March 30th, the EU held its first Conference on Animal Welfare in Brussels . [ 34 ] Together, these initiatives appeared to signal the EU’s formal recognition that the animal initiatives of the 1990s were not things of the past, and that animal welfare continued to matter in the modern era. As is shown below, however, overall, the EU would have a mixed record over the next few years in following through on the objectives laid out in the Action Plan.

Less significant but nonetheless noteworthy general farm legislation came in the form of a 2006 farm animal EU decision. In November 2006, the European Commission issued a decision concerning minimum requirements for the collection of information during inspections of calf, pig, and hen farms. [ 35 ] Passed in recognition of the fact that collection of data on animal welfare inspections is essential for the European Community to evaluate the impact of its policy in this field, the directive standardized farm inspection reporting procedures, and required annual reports from each member state outlining (a) the most serious instances of non-compliance with EU law, and (b) what was being done to diminish such non-compliance.

ii.  Species-Specific Legislation from Recent Years

As before, however, most significant recent legislation has not been of the broadly applicable sorts listed above, but rather of the narrowly tailored, species-specific kind—a natural enough approach to farm animal welfare legislation, which involves very different farming equipment for very different animals. As can be seen below, though legislatures have passed new laws covering various classes of farm animals, none of them ventures into bold new territory. Quite the opposite, in fact: much of it merely concerns itself with implementing the promises of prior legislation.

a.  Hen Welfare and Egg Regulation

The largest strides forward for animal welfare in recent years have been made for European hens and chickens. Some of these pertain to things like marketing, as will be seen further below. The major EU-wide reform, however, has focused on cage size, particularly with doing away with battery cages—confinement systems employed in egg production, in which as many as ten hens are stacked on top of one another inside a cage roughly the size of a filing cabinet drawer. [ 36 ]

As noted briefly above, Council Directive 1999/74/EC, which passed ten years ago in 1999, did away with the battery cage in the EU as of 2012. [ 37 ] Though its passage may not have been recent, it has cast a long shadow, influencing modern legislation in a variety of ways.

First, beyond the issues surrounding the battery cage, the 1999 Directive also required egg production units to register with agricultural authorities in their home countries. After consulting with veterinarians from a variety of European states, the Commission passed a directive from January of 2002 that fleshed out the directive by setting out specific requirements for each country’s mandatory registration systems. [ 38 ] One important step forward in Europe’s regulatory landscape over the past six years has been the implementation of egg unit registration systems such as these.

Second, the 1999 Directive has further influenced the development of hen welfare law in recent years through its Article 10, which requires the Commission to send a report to the European Council on hen rearing systems currently in use in Europe. The Commission completed its report on January 8 ^th , 2008. Based upon an array of social science literature measuring the health risks and socioeconomic implications of various egg production systems, the Report, in the words of the Commission, “len[t] support to the upcoming ban on unenriched [or battery] cages.” [ 39 ] Specifically, the Report concluded that the elimination of battery cages would have profound beneficial effects on hen health (by reducing “bone breakage, harmful pecking, behavioural problems and mortality” [ 40 ] ), and that the economic effects of the switch to enriched cages would amount to under one Euro cent per egg—a minor increase that would by countered by the growing European demand for “animal welfare friendly products.”[Id.]

Outside the parameters of the 1999 Directive, recent years have seen new EU-wide regulation of egg labeling, some of which has affected hen welfare. In June of 2006, the Commission passed a broad regulation on egg labeling— Number 1028—that served mainly to set out labeling requirements distinguishing between Class A eggs (eggs for direct human consumption) and Class B eggs (other eggs). [ 41 ] In May 2007, the Commission passed a new egg regulation, Number 557, building upon the prior one and delineating detailed marketing standards for eggs. [ 42 ] The Regulation sets out rules, applicable to virtually all hen eggs sold in the EU, [ 43 ] for the quality and weight grading, packaging, marking, storage, transport and presentation for retail sale of eggs, to ensure that they are marketed on an evenhanded, competitive basis. Though the regulation’s focus is primarily on egg marketing rather than animal welfare, it includes certain provisions that bear upon animal welfare in a positive way. For instance, the regulation sets out detailed requirements for hen living conditions that must be met before eggs can qualify as “free range,” including open-air runs of low hen density. [ 44 ] Such a regulation makes it harder for manufacturers to get away with profiting from the marketing advantages of the “free-range” label without taking meaningful steps to ensure hen welfare.

In short, the past six years have not witnessed any major revolution in the hen welfare movement in EU-wide law. For the most part, the steps toward better conditions for hens made in recent years have derived from pre-existing laws. Aside from the battery cage, whose phased elimination was set in motion as long ago as 1999, other major welfare issues for hens remain unaddressed in recent years. De-beaking, a process in which birds’ beaks are sliced off, remains almost as common in Europe as it is in the United States. [ 45 ] European countries’ replacement of battery cages with “furnished” cages, which are only slightly larger than battery cages and do not produce enormous differences in hen welfare, [ 46 ] is a modest improvement on the prior status quo—but only that. After a surge of hen-related activity at the turn of the millennium, legislative reform on behalf of hen welfare has largely died down.

b.  Broiler Chickens

Where there has been more dramatic activity in the past six years is on measures surrounding welfare for broiler chickens—chickens raised primarily for their flesh rather than their eggs. In 2005, the Commission first proposed legislation to improve conditions for broiler chickens. “Intensive farming methods in this sector,” Markos Kyprianou, EU Commissioner for Health and Consumer Protection, said at the time, “have led to significant welfare problems and consumers have repeatedly expressed concern about the welfare of chickens. The results-oriented approach set out in the proposal will ensure concrete improvements for the animals while also allowing farmers some flexibility in their farming methods, as long as they continue to meet the set welfare standards.” [ 47 ] The ambitious proposal was sent from the Commission to the Council for examination, and after two years of legislative consideration and wrangling, a new, only slightly revised EU broiler chicken measure passed. [ 48 ] The directive aimed to reduce overcrowding for chickens by setting a new, lower maximum stocking density. It required minimum periods of darkness to allow chickens rest, and mandated that both adequate ventilation and fresh litter be in place at all times. It further required chicken handlers to undergo extensive training before working on a chicken farm, and required them to conduct twice-daily inspections of all chickens in confinement. Finally, so as make explicitly clear that the new legislation should not be interpreted as a last word on broiler welfare, the directive requires data to be collected at slaughterhouses across the EU, data that can serve as the basis for future reform. The directive will be implemented by all member states by June 2010.

c.  Calves

Chickens and hens are not the only animals to be the target of new species-specific in the past few years, however. The EU also passed an important new directive setting down minimum standards for the protection of calves. [ 49 ] The use of veal crates for rearing calves had already been illegal in the EU since 2006, when a prior veal calf protection measure [ 50 ]   went into effect. The new directive, however, passed on December 18, 2008, fleshed out the older one, establishing new welfare minimums under which veal could be raised. According to the new directive, veal calves may, when very young, be kept in individual pens, but must be able to turn around and to see and touch other calves through perforated walls. Once they are more than eight weeks old, veal calves must be reared in groups. To guard against the nutrient-deficient diet veal calves have long been fed on factory farms—and continue to be fed on farms in the United States—European calves must, at least twice a day, be fed a diet that meets basic health requirements to ensure their bodies develop normally.

d.  Fish

In the EU, Council Directive 98/58/EC put forth minimum standards for the protection of animals bred or kept for farming purposes, including fish. International organisations have also issued recommendations and guidelines concerning fish welfare. In 2005, the Council of Europe adopted a recommendation on the welfare of farmed fish. [ 51 ] In 2008, the World Organisation for Animal Health (OIE) adopted guiding principles for fish welfare. [ 52 ] A number of codes of practice have also been adopted by industry that includes measures to safeguard fish welfare.

e.  Rabbits

Rabbit farming is a small but important industry in Europe. Over seventy-six percent of the total production for the EU is done in Italy, Spain and France. Due to the considerable lack of information and scientific studies on the farming of this specific species, particularly with regard to welfare, t he EU recently made some recommendations. In particular, the European Commission asked a scientific panel [ 53 ] to deliver an opinion on the welfare of rabbits in the current farming and husbandry system. The opinion recommended increases in cage size and lower maximum stocking densities for growing animals, bearing in mind that slaughter weights vary greatly between countries according to local customs.

iii.  Patterns in Domestic Legislation

Though much of Europe’s modern-day regulation of animals is managed at the EU level, the past few years have of course seen a variety of domestic legislation as well. The modern lay of the land in Europe looks more or less the same as it has in the past, with northern and central Europe—along with England, the traditional pioneer in animal legislation—sitting at the most animal-friendly end of the spectrum. Toward the more conservative end remain parts of southern and eastern Europe. The contours of animal-friendliness are discernable, among other factors, in the percentage of free-range eggs consumed in each country— “[t]he market share of cage-free eggs,” one expert reports, “is twenty, forty-two, fifty, and sixty percent in Germany, the United Kingdom, the Netherlands, and Sweden, respectively. All Swiss eggs are cage-free and eighty-two percent are free-range. The share is lower in southern European countries. In Italy, for instance, cage-free eggs make up only five percent of the market.” [ 54 ]

Across this patchwork of animal-friendly to less animal-friendly countries, a variety of progressive transnational trends are discernable at the domestic level in recent years. Most noteworthy, the movement toward constitutional protection of animals, begun in Switzerland in 1992, [ 55 ] and followed by Germany in 2002, [ 56 ] continued, in 2004, with Austria’s inclusion of animals into its Constitution, which now reads “The state protects the life and wellbeing of animals in its responsibility for them as fellows of mankind.” [ 57 ] In the past five years, however, constitutional reform on behalf of animals has stalled, with no new inclusions of animals into European constitutions.

Less groundbreaking than constitutional change, but noteworthy nonetheless, has been the success enjoyed by various recent domestic initiatives against fur farming. [ 58 ] England passed a fur farming prohibition bill in 2000 making it a criminal offense to raise animals for their fur, [ 59 ] and Scotland followed suit shortly thereafter. [ 60 ] Since then, continental Europe has been keeping the anti-fur movement alive. State by state, for instance, Austria has banned fur farming throughout its territories. [ 61 ] In 2005, Sweden announced that onerous standards for raising mink would be introduced into its Animal Protection Act. [ 62 ] And in April 2008, all fox fur production ceased in the Netherlands. [ 63 ]

Various individual countries have taken action against the battery cage as well. Though scheduled to be permanently phased out in the entire EU by 2012, in recent years many countries arranged to do away with theirs before then. Germany, Sweden, Finland, and Switzerland all phased out battery cages by 2007, and Austria did so in 2009. [ 64 ] Many of these countries are doing away with the cage altogether: Switzerland has already effectively banned cages not through legislation, but by requiring strict provisions for cages that are impractical for farmers to meet. [ 65 ] Germany and Austria have already passed legislation to do away with all cages; Germany will do so in 2012, and Austria in 2020. [ 66 ]

In addition to the transnational domestic initiatives above, domestic legislation on behalf of companion animals passed in various European countries in recent years is leading to an eradication of their status as mere property. [ 67 ] For the most part, however, when there has broad European support for certain kind of animal welfare reform, it has been achieved through top-down changes in EU law earlier in this Part—not through bottom-up aggregations of independent domestic initiatives. The reforms made in individual countries in recent years have tended to be more idiosyncratic in nature—unique to each country, and not necessarily made as part of a broader pattern. Though a comprehensive review of each country’s past and current laws is beyond the scope of this article, below are discussed two of the most noteworthy examples of domestic lawmaking in Europe from the past six years—from Austria and Spain.

a.  Austria

Perhaps the most exciting domestic developments in recent years have been those in Austria, where a group of activists, acting under the leadership of Martin Balluch, managed to persuade the public and the government to create the most animal-friendly legal regime on the face of the earth. [ 68 ] Following an Animal Rights Conference in 2004 that allowed the country’s animal rights groups to unite around a common agenda, Balluch, a former physics professor with two doctorates, led activists in a sustained campaign of civil disobedience—against both factory farms, and the conservative party that was defending them. In their campaign against the farms, activists rescued birds from battery cages, shot extensive footage of the conditions inside farms, and put together a film of these conditions, which they repeatedly aired in public. [ 69 ] In their efforts against the conservative party, activists held sit-ins at party headquarters, conducted letter-writing campaigns, and even disrupted party debates—which sparked a violent response that won them sympathetic press coverage. [ 70 ] Finally, their efforts culminated in the passage—by a unanimous parliament—of a significant curtailment of factory farming, which went into effect on January 1 ^st , 2009. [ 71 ] As a result of all the goodwill they had built up among the public, activists also won a wide array of other reforms, including extensive pet shop regulations, a ban on kill shelters, and indeed a prohibition against killing any animal without good reason. Among various other affirmative governmental duties, each province in Austria now employs its own “Animal Solicitor,” who monitors local animal trials and can sue on behalf of animals. [ 72 ] Toward the end of his major campaign, Balluch and his attorneys won a ruling from a judge that his breaking into a battery farm to take chickens did not violate the law. Perhaps most remarkable is the fact that, in the new Austrian Constitution, amended in 2004, animals are afforded nothing short of constitutional protection—right alongside humans. As is shown below, however, in the subsequent years Austria has since been home to a major backlash against the very animal advocates who effected the changes of 2004.

b.  Spain

Few would designate Spain as fertile breeding ground for dramatic animal rights initiatives. According to a 2007 survey on European attitudes to animal welfare commissioned by the EU, Spaniards professed to know less about the conditions for farm animals raised in their home country than did citizens of any other EU nation. [ 73 ] Moreover, Spaniards ranked the importance of animal welfare at 6.9 out of 10—the lowest overall rating given by any country in Europe. [ 74 ] In June 2008, however, Spain ventured where no country had gone before when its Parliament passed a nonlegislative measure granting rights to non-human primates. A committee advised the government to pass legislation granting great apes—gorillas, chimpanzees, bonobos, orangutans—the rights to life and liberty, along with the right not to be used in experiments. The measure proposed to make it illegal to kill apes except in self-defense, and to experiment on them, or even to arbitrarily confine them, as is done in circuses. (Apes would still be allowed to be kept in captivity for conservation purposes, but then only in optimal environs for them.) The non-legislative measure, which in essence recognized primates as persons rather than property, required later action by the government to become formal law—action which has not yet been completed, due in part to negative political fallout from the passage of the initial measure, complacency by Parliament, and lack of popular political willpower. Some politicians remain optimistic that it will pass. [ 75 ] Regardless of what happens moving forward, however, the passage of the non-legislative measure was a significant victory for the advocacy group behind it, Peter Singer’s Great Ape Project (GAP)—an initiative designed to grant life and liberty rights to primates, and in so doing, to “break down the barriers between human and nonhuman animals.” [ 76 ] The Spanish Parliament’s vote was an important, if largely symbolic, event for animal welfare—seen by many as a harbinger of future legislation to come.

Austria and Spain’s initiatives notwithstanding, the past six years have witnessed little that is pioneering in European legislation—no dramatic steps forward like those made in the late nineteen nineties. Without question, an enormous divide continues to separate the U.S. and the E.U.; equally without question, the rate of change in the two entities has come to look much more similar. In the next Part, the various ways in which a slowdown in progressive animal welfare legislation appears to be under way are detailed.  

III. Part II: The Slowdown in Progressive Legislation

As was seen above, the legislative reform set in motion in the early nineties has continued, to some extent, in recent years. Though some recent European legislation has taken dramatic steps forward in favor of animal interests, other recent legislative developments have postponed the dawning of a new progressive era for animal welfare in Europe. The past six years, taken as a whole, witnessed an important slowdown in progressive legislation on animal welfare. The slowdown in the years since 2003 is visible in four distinct areas: the failure to break broad new legislative ground on animal welfare at the EU level, as was done throughout the nineties; enforcement problems with laws that have already successfully passed; the repeatedly narrow, restrictive judicial interpretations of the Animal Welfare Protocol by the European Court of Justice; and European legislatures’ shift in focus away from the welfare of animals, where it lay before, to a crackdown on animal extremists. This Part proceeds through each of these five contributors to the slowdown, from most important to least important.  

A.  The Failure to Break New Ground

Perhaps the easiest way to appreciate the slowdown is in the simple fact that, on animal rights, little new legislative ground has been broken in the past six years. Of course, the EU has continued to pass laws on animal welfare, as shown above. None of the EU legislation passed since 2003, however, has forged ahead in bold new directions, as European animal welfare legislation consistently did in the decade before. In the 1990s, the EU passed new laws extending detailed protection to every important class of farm animal, it explicitly recognized animals as “sentient beings” in its higher law, and it made the Five Freedoms official European policy. Many of the statutes passed in recent years, by contrast, merely implement or flesh out important legislation from the past, such as the battery cage law from 1999. Aside from the important recent initiative on behalf of broiler chickens, most other new laws regulating the life of animals, such as those aimed at egg labeling, touch upon animal welfare only tangentially. And although three countries extended constitutional protection to animals from 1992 through 2004, no country has done so since. Nowhere is Europe’s animal welfare slowdown more apparent than in the legislative inaction of the past six years.  

B.  Compliance with the Letter but not the Spirit of Recent Law

Another problem—not on the legislative front but on the enforcement side—is the fact that, as higher welfare standards are implemented at the domestic level, humanely treated animal products tend to cost more—even though the price difference is usually modest. In response, local companies seeking to maximize profits and cut costs tend to switch suppliers—increasing their reliance on cheaper, imported goods that are not necessarily—indeed, almost certainly are not—the products of humane farm systems. The switch in purchasing behavior is not subtle; once heightened restrictions are placed on domestic meat production, for instance, imports of cheaper, less regulated meat have tended to skyrocket. As Matheny and Leahy have observed, “ the United Kingdom maintains higher animal-welfare standards for sows than most E.U. countries. Since its ban on sow gestation crates and tethers went into effect in 1999, U.K. pork costs increased and imports of fresh and frozen pork products increased by seventy-seven percent . In 2005, more than half of all pork products in British supermarkets were imported, and more than two-thirds of these imports were produced using systems illegal in the United Kingdom.” [ 77 ]

These economic realities demonstrate the limitations of new domestic welfare legislation that does not ensure that all imports are held to the same welfare standards as local animal products. Though surveys have shown that most Europeans support requiring imports to meet domestic standards, most domestic legislation does not require this of imports, and as a result the effect of even bold new legislation has been significantly blunted.   

C.  Restrictive Judicial Interpretation of the Animal Welfare Protocol

Much of the responsibility for the slowdown, however, has not been legislative or executive in nature, but judicial. The Animal Welfare Protocol, discussed above, which recognized animals as “sentient beings,” was seen by many commentators as an enormous event in the development of animal law—a “momentous occasion,” [ 78 ] in the eyes of some. Many read the Protocol’s professed intention to “ensure improved protection” of animals as ushering in a new era for animals in Europe, of sustained, heightened concern for animal welfare. Largely because of a decision by the European Court of Justice (ECJ), however, this was not to be. Jippes , an ECJ case from 2001, involved a legal dispute over the hoof and mouth pandemic ravaging Europe at the time. [ 79 ] To stem spread of the disease, the EU passed a community directive banning the use of preventative vaccinations and mandating compulsory slaughter. The plaintiff—or “applicant,” as plaintiffs are referred to in Europe—owned a variety of farm animals, and, loathe to kill them, argued that European law embraced a general principle that animals were shielded from physical pain and suffering. Such a principle, the applicant argued, could only be overridden when absolutely necessary; and the compulsory slaughter directive was in direct conflict with this principle. The ECJ, however, rejected the applicant’s argument, holding that the Animal Welfare Protocol of 1997 did not delineate any new important animal-friendly principles in European law, but merely codified old ones—an argument that many authorities view as highly dubious. [ 80 ] Regardless, however, of whether the Court got the law right or wrong, the effect of its ruling was clear: it made the Animal Welfare Protocol a nullity, a paper tiger. Rather than being a bold new step in a new direction and a “momentous occasion,” as so many took it to be, the Protocol was, according to the Court, more like a law formally recognizing the sky as blue.

The ECJ has further watered down animal welfare in Europe in recent years through its rulings on Treaty Article 30, which permits countries to set their own standards in a given economic sector only if European law has not already exhaustively regulated that sector. Various countries have tried to use Article Thirty to set their own animal welfare standards that provide a level of protection to animals exceeding the level mandated by EU law. ECJ rulings, however, have tended to be very lenient—“excessively lenient,” in the eyes of some [ 81 ] —when deciding whether EU legislation is exhaustive on animal protection. As a result, countries attempting to set higher animal welfare standards than exist at the EU level have often seen their efforts frustrated. [ 82 ]    

D.  Crackdown on Animal Rights Advocates—Violent and Nonviolent Alike

In recent years, much of the focus of European animal legislation has shifted away from improving conditions for animals toward pursuing violent animal advocates. England, for instance, home to the first violent extremist groups, became so terrorized by their campaigns against new testing facilities that in 2004 it decided to pursue them with a new vigor. Parliament tightened up laws such as England’s Criminal Justice and Police Act of 2001 and the Protection from Harassment Act to give police more power to crack down on activities such as intimidating demonstrations outside people’s homes or other kinds of harassment. [ 83 ] The reform proved, by empirical accounts, quite effective; attacks on peoples homes plummeted. [ 84 ] England continued its crackdown on extremists afterwards—for instance, going after street vendors it claimed were funding extremist activity in 2007. [ 85 ] The result of the English crackdown—widely reported by the press—was that the extremists took their intimidation tactics abroad, to continental Europe, where continental governments had to initiate crackdowns on their own turf. [ 86 ] As European legislators have been increasingly forced to deal with the fallout from, and pursue, violent animal extremists, it has been understandably difficult for them to pass meaningful animal welfare legislation.

For an example of how inimical this shift in focus—from animal welfare reform to animal extremist crackdown—has been on animal rights movement, one need look no further than Austria, without question one of the most animal-friendly regimes in Europe, where a government crackdown in 2008 targeted the very set of nonviolent, law-abiding activists responsible for effecting the spectacular social change just a few years before. Martin Balluch, the leader of the campaign that resulted, among other things, in a total ban on battery cages and the inclusion of animals in Austria’s constitution, found himself in prison, along with nine other leaders of nonviolent animal welfare organizations—all of them the objects of a government crackdown on animal welfare leaders on the eve of a new initiative for even stronger legislation in favor of animal welfare. The new Austrian government used a law aimed at the mafia to storm their homes in the middle of the night, arrest them at gunpoint, confiscate computer files, and imprison them. Ultimately, Balluch was held in jail, under no charge or evidence of illegal activity, for over 100 days before his release. Many, including Peter Singer, interpreted the government actions as a conservative reaction to the reforms Balluch had initiated just years prior. [ 87 ] Regardless of what motives lay behind this investigation, the inescapable truth was that just a few years after the mass mobilization of 2006, Austria’s government was in a much different place—where the focus was not on improving conditions for animals, but on cracking down on activists it perceived to be criminals. From where the country stood just a few years before, advancing rapidly along in favor of animal rights under the leadership of animal activists, it was a remarkable shift in direction.

In many ways, it was reflective of a shift taking place across Europe. The truth is that for all the reform that has been made in recent years—some of which, at the domestic level anyway, has been quite significant—there has been a slowdown in legislation at the EU-wide level. In an important sense, the EU has come to more closely resemble the United States, with a federal government taking little new action to protect the animals at the federal level, and isolated individual states—like Austria on one side of the Atlantic, or California on the other—taking the initiative to keep pushing the animal welfare envelope. Without question, an enormous divide continues to separate the U.S. and the E.U. But the rate of change in the two entities has become much more similar. In its next Part, this Paper addresses the question of what can account for this slowdown.  

IV. Part III:   What Accounts for the Slowdown?

When in search of an explanation for factors that account for the slowdown in EU animal welfare legislation in recent years, it is worth noting at the outset that, whatever the cause may be, it is not that Europeans are merely indifferent to animal welfare.   Now as before, Europeans profess to care deeply about animal welfare. In a 2007 survey, when asked to rank on a scale of 1 to 10 how important it was that animal welfare be protected, the average European gave a score of 7.8—and in parts of Europe the score averaged 9 out of 10. [ 88 ] If the actions of their democratic governments from the past six years are any guide, however, nontrivial countervailing forces are operating against this solicitude for animals. This paper posits five main explanations for the downturn: prior successes, changes in EU membership, implementation issues, and, to a smaller extent, extremist attacks and the weakening reputation of the animal rights movement. [ 89 ]

A.  Prior Successes

One mundane but nonetheless important explanation for the apparent downturn in progressive animal welfare legislation recent years is simple: European animal law appears on some level to have been the victim of its own recent success. The 1990s and early 2000s were a prolific period for animal welfare in Europe, with unprecedented bold new measures taken on behalf of a wide array of farm animals. As has been demonstrated by history—and as stands to reason—such flourishes of lawmaking in a given area tend to be followed by lulls. After legislators break their backs hammering out landmark legislation on topic x , all that can generally be expected on topic x in the subsequent few years is subsidiary legislation fleshing out the original legislation—not new legislation that completely changes the direction of the landmark initiative. Because the decade before 2003 witnessed broad expansion of coverage of almost every major class of farm animal, a natural downturn in new legislation is only to be expected. As one authority on European Law has explained the slowdown, “the current situation can be explained at least partly by the fact that all the larger groups of animals are now ‘covered’.” [ 90 ] Thus what may appear like a failure is likely to be, in large part anyway, merely the natural consequence of earlier successes from the past few years.

B.  Changes in EU Membership

Another explanation for the slowdown is more structural in nature, relating to recent changes in EU structure. In the past six years, a broad cluster of Eastern European countries has been accepted into the EU: Hungary, Slovenia, Estonia, the Czech and Slovak Republics, Poland, Latvia, Lithuania and Estonia in 2004, and Romania and Bulgaria in 2007. As they have joined the Union, they have inevitably come to wield influence over lawmaking in the body. Before these new additions to membership, it was easy for Western European nations, many of which are relatively progressive on animal rights, to band together and move forward on the animal welfare front. Since then, however, securing at least some Eastern European support has become necessary. And because Eastern Europe, like Southern Europe, tends to rank animal welfare as a lower priority than does Western Europe, [ 91 ] it has become more difficult to build pro-animal coalitions and push through new legislation in the EU—especially in light of the level playing field ethos supposedly embraced by all EU member states.  

C.  Implementation Costs

Another crucial factor that has predictably hindered progressive legislation is the higher costs associated with it. When asked whether they prefer humane conditions for farm animals, the vast majority of Europeans claim that they do—even if most do so out of primarily self-interested motivations. [ 92 ] When people are asked whether they would be willing to pay more for humane conditions, however, enthusiasm for such conditions tends to wane. When asked in a 2005 survey to what extent, if it all, they would be willing to pay a price premium for eggs from hens raised in more humane conditions, only 57% of Europeans said they would be willing to do so—and among those, most said their willingness would extend only to paying no more than 10% more. [ 93 ] As more and more progressive legislation has been enacted, Europeans have increasingly been required to put their money where their mouths—quite literally—are. And the reluctance to do so has been reflected both in the slowdown in the passage of new, more progressive animal welfare laws. In recent years, for instance, various legislative initiatives that have not required substantial outlays of funding—such as the creation of new egg labeling requirements—have passed in Europe. Higher-cost measures, such as the comprehensive farm regulations passed in the 1990s, have not been getting passed at the EU level.

Even among measures that have passed, however, enforcement, which can often prove costly, has met with resistance. For instance, the European Commission’s 2006 decision laying out minimum requirements for the collection of information during inspections of farm sites, which goes into effect in 2008—and requires the appointment of animal welfare officers whose job it will be to ensure that farm staff are properly trained and certified—has been the focus of controversy regarding who will pay the cost of its enforcement. In another example, the European Parliament, reflecting public opinion, passed a recommendation that funding be allocated to compensate farmers for the new costs. [ 94 ] Facing resistance from the government, representatives of the European industrial farming industry were forced to apply public pressure on the EU to follow through on its recommendation. [ 95 ]

D.  Extremist Attacks

The three factors considered above—prior success, membership changes, and implementation issues—are probably the most important factors in explaining the slowdown. The remaining two are smaller factors but appear to have played some role in the retardation of progress on animal welfare legislation, at least at the domestic level. [ 96 ] The first of these is the political fallout from extremist animal rights organizations, such as the Animal Liberation Front, that employ violence, blackmail, and other scare tactics to “advance” the animal cause. Whenever invoked on behalf of reform, extremist and morally indefensible tactics such as these tend to backfire and discredit an entire movement—even when, as is the case with animal rights, the movement’s very purpose is to oppose violence against sentient beings. [ 97 ] Such a backfire is precisely what has occurred with the animal rights movement in Europe. Though the legislation crafted to crack down on such organizations was briefly discussed in Part II, here it will be useful to delve more deeply into the organizations’ activities, and European society’s reaction to them. For there is every reason to believe that the use of such tactics by a tiny fringe of the overwhelmingly pacifistic animal rights movement, and the public reaction to such tactics, has played a crucial role in turning European attitudes to against animal rights in recent years.

The roots of the extremist drain on enthusiasm for animal rights extend back almost forty years, to the formation of the first violent animal rights organizations. England, traditionally the country of firsts when it comes to animal initiatives, was unhappily the birthplace of animal extremists, too. In the early 1970s, England’s first animal extremist group, the professed “Band of Mercy,” began its first campaign of property destruction, starting with vandalism of hunters’ cars, and moved on to arson, burning down animal research facilities. In 1976, the Band of Mercy changed its name to the Animal Liberation Front—the organization that has, for the past three decades, set the extremist agenda in England and the United States, not only engaging in relatively innocuous tactics such as removing animals from shelters, but employing destruction and scare tactics as well, all in the name of animals. Though the ALF professes to be nonviolent, its tactics—mailing unarmed explosives to researchers in their homes, blowing up scientists’ cars, other attempts at blackmail and intimidation—while not constituting physical violence, no doubt inflict immense psychological harm. Recent European history demonstrates that ALF-style violence inflicts harm not only upon the scientists and executives that are its immediate victims. It also does great damage to the animal movement itself—and, by extension, to the very animals such extremists purport to be fighting for.

Recent events in Oxford present a microcosm of broader European developments in the past few years. After a new research lab was slated to be built at Oxford University in the early 2000s, the ALF responded in 2004 by waging a campaign of property violence and intimidation, setting fire to one college’s boathouse, and placing an explosive in another college’s sports pavilion. In one particularly shocking instance, a scientist received an explosive in the mail wrapped in needles, which was opened by his young daughter. All of these acts received wide press coverage. [ 98 ] Naturally, the university community—along with the rest of England—reacted to the activities with disgust. [ 99 ] In response, students and researchers mobilized in defense of animal research, forming the cleverly named organization Pro-Test—a group committed to the endurance of animal testing as a form of scientific research. “We aim,” the group says on its website, “to dispel the irrational myths promoted by anti-vivisectionists and to encourage people to stand up for science and human progress.” [ 100 ] Thus, Oxford—birthplace of the intellectual animal rights movement, and home to various pro-animal scholars—was, as a direct and understandable result of ALF scare tactics, rendered far less sympathetic to animal concerns than it had been in prior decades. As extremist attacks started cropping up elsewhere, the Pro-Test movement spread outwards. In 2009, for instance, when extremists bombed an animal researcher’s car at the University of California at Los Angeles, the community responded by opening up a UCLA chapter of Pro-Test and holding a major rally in defense of testing. [ 101 ] Typical signs at Pro-Test rallies have read, “I wouldn’t be alive without animal tests,” and “Animal research saved my mom.” [ 102 ] These rallies have received abundant press coverage—all of it naturally favorable. Analyzed objectively, then, the ALF’s violent campus tactics served three purposes: (1) to create indignant communities united in full, fiery support of the practices ALF opposes; (2) to cause the public to associate animal activism with violence; and (3), if anything, to close—not open—people’s ears to claims of animal suffering.

The adverse effects of extremist tactics on European attitudes toward animal welfare are evident outside the walls of university campuses, and indeed outside of England, as well. As noted above, frustrated with the proliferation of ALF tactics on English soil, England’s government cracked down on the organization starting in 2004, waging a campaign that was both swift and effective. As a result, however, extremists migrated abroad, to the rest of Europe, where they started launching attacks on experimental facilities, researchers, and business executives on the Continent. [ 103 ] In early 2008, for instance, a biomedical research institute was set on fire in Belgium, and a Dutch developer was forced to withdraw from constructing a new research facility in the Netherlands. [ 104 ] In the summer of 2009, Daniel Vasela, the Chief Executive of Novartis, a Swiss drug company, saw his family gravestone desecrated twice in one week; extremists also stole an urn containing his mother’s ashes. [ 105 ] As with the intimidation campaign at Oxford, these attacks on the continent, all of them well-publicized, served only to galvanize public support against activists, and in favor of testing. Following the Dutch attack, for instance, the Dutch Parliament promptly adopted a motion condemning extremist acts and supporting the use of animal testing. By outraging the public into a new, stronger support of activities such as animal testing, and making legislatures focus on cracking down on activists rather than protecting animals, the outbreak in intimidation tactics throughout continental Europe appears to have played a role in effecting the legislative slowdown seen over the same years.

E.  The Increasingly Weak Reputation of Animal NGOs

Another minor factor slowing the wheels of progress in Europe has been a related but distinct issue: the increasingly negative public image of animal activists. This factor is largely a consequence of the extremism discussed above. When they strike, extremists tend for obvious reasons to receive far more press attention than does the incremental, lawful advocacy pursued by the vast majority of European animal groups. And after enough attacks, animal rights activity of any kind is increasingly associated not with justice, but with criminality. It is not, therefore, simply the damage done by isolated instances of violence and the reactions to them that impedes reform on behalf of animals; it is also the lingering damage that such attacks do to the broad reputation of animal activists as a whole. Indeed, so pervasive has the reputational harm done by these organizations been that in Europe “animal activist” has become more or less synonymous with “extremist”—or even “terrorist.” In a Google search of “European animal rights activist groups,” for instance, nine of the first ten entries relate not to the Humane Society, or PETA, or other mainstream organizations, but to extremists organizations such as the ALF. [ 106 ] And the close association between activist and terrorists is not limited to search engines. By 2004, so deep was the British public’s aversion to animal organizations bent on destruction that, to take just one reflective example of newspaper coverage, Britain’s The Guardian —a reform-minded publication for which Peter Singer has frequently written—linked animal activists, in an article on some of their recent vandalism from the summer of 2004, with “al Qaida terrorists.” [ 107 ] When reformers are well regarded by the public—as was the case in Austria’s broad animal reform movement of 2003-2004, they wield immense power to change policy. When, on the other hand, reformers are frequently lumped in with violent radicals, it makes it difficult for them to open minds and change laws. This latter situation is the one in which modern European activists find themselves today.

Not all responsibility for animal movement’s current reputation can be placed at the feet of extremists, however. When animal activists are not viewed as militant zealots, their public image is often, if anything, distorted too far in the opposite direction—that is, they are viewed as softies preoccupied with ethical matters that are, at most, trivial. Much of the responsibility for this image problem lies with animal groups themselves, who have not been particularly savvy in their press relations in recent years. In April 2009, for instance, PETA Europe asked the famous English pop music duo, the Pet Shop Boys, to change their name to the “Animal Rescue Boys,” in order to highlight the animal abuse that occurs inside pet shops. Predictably, this led to a deluge of press attention, which was no doubt PETA’s intention. The coverage did far less to highlight the animal abuse that occurs in pet shops, however, than it did to render PETA something of a laughingstock. [ 108 ] ) Much like organizations lose their ability to be taken seriously and open minds when they are lumped in with violent criminals, they also lose their ability to change minds when they make public statements along the lines of PETA’s. The reputational damage animal interest groups have suffered in recent years, both from extremists and from their own press blunders, has compromised their effectiveness in calling for reform. [ 109 ] With the pro-animal voice as discredited as it has become in recent years, it is no surprise that the pace of reform has slowed.

Each of the five factors discussed above—prior successes, EU membership shifts, implementation issues, extremist attacks, and the deteriorating reputation of animal activists—help account for the marked slowdown in animal rights in recent years. As is discussed in the following section, however, there is considerable reason to believe that the past six years have been a mere dip in new legislation rather than a sign of permanent inaction to come.

V. Part IV: Future Directions

What lies ahead for animal welfare reform in the EU and its member states? Now is, as Wayne Pacell, President of the American Humane Society has written, an “odd time” in the development of animal law, with both record numbers of animals being confined and harvested for food, and also record numbers of advocates working on their behalves. [ 110 ] It is a common European view that, however much the pace of change may have slowed in recent years, “a new era is dawning regarding protection to animals at the European Union level.” [ 111 ] And when recent developments are viewed from a certain angle, the dawning of a new era seems eminently plausible. After all, the past ten years have seen, among other breakthroughs in animal welfare legislation, an EU-wide law to eliminate the battery cage; the extension—unthinkable in the United States—of constitutional protection to animals in two European countries; the first EU-level conference on animal welfare; and the passage in Spain—traditionally one of Europe’s least animal-friendly regimes—of a nonlegislative, but nonetheless symbolically significant, measure recognizing the rights to life and liberty in great apes. Others, however, particularly those inside the movement, tend to view the recent slowdown through a more ominous lens.

Some of what the legislative future holds, of course, is not subject to speculation, for many laws passed years ago are scheduled to go into effect in the next few years. The ban on battery cages signed into law in 1999, for instance—the first transnational battery cage ban—was given thirteen years to take full effect, and will do so in 2012. Come that year, all eggs produced in Europe will be either cage-free, or the product of refined cages, which, although they place various nontrivial restraints on the movement and quality of life of the hens inside them, provide at least modestly improved living conditions. Also coming into effect in 2012 will be Germany’s ban on all chicken cages; Austria’s all-cage ban will take effect in 2020. [ 112 ] In the European cosmetics industry, recent extensive reform of the industry’s testing procedures has gone into effect just as of 2009. Manufacturers of cosmetic products can no longer test new products on animals where there is a validated alternative to testing. Where there is no validated alternative to testing, as companies like L’Oreal have claimed there is not for tests of skin irritation or toxicity, companies have been allowed to apply for four-year extensions to continue with animal testing until 2013, at which point they will be able to apply for further extensions. [ 113 ] Once all these laws take full effect in the next few years, the landscape for European animals will look quite different.

The pending nature of measures such as these help run home an important point about the downturn in animal welfare legislation discussed above. Stark as the recent downturn in legislation may seem, part of what European legislatures may well have been doing in recent years is waiting for the bold new measures they passed up to ten years ago to take effect. When the recent slowdown is put in perspective, it comes off as less of a retreat from prior reform than a cautious reluctance to forge ahead with new bold reform until prior bold reform has been implemented.

Turning aside legislation that has already passed, and focusing on the legislation of the future, it remains to be asked: Is the legislative slowdown observed in the past six years here to stay, with EU animal welfare legislation likely to become as sparsely passed and implemented as it has been at the federal level in the United States? Or is the slowdown of recent years more likely to be a modest downturn in an overall steady movement toward reform?

Three important factors suggest it is the latter: (1) the fact that Europeans, at least compared to other residents of industrialized nations, still care deeply about animal welfare, and there is no sign that their concerns over it have dissipated; (2) the new comprehensive Animal Health Strategy Plan for 2007-13, which lays out a variety of serious goals for the EU in coming years; and—possibly the most crucial longterm variable—(3) the pressure for reform that climate change policy is likely to place on the factory farming industry. This Part proceeds through those factors in turn.

A.  Europeans Still Prioritize A nimal Welfare

First, even if focus were to be placed on the progressive legislation that has not been achieved in recent years as opposed to the legislation that has, the truth is that, if surveys are any guide, Europeans continue to care greatly about animal wellbeing—and their representatives know it. In sophisticated surveys conducted throughout the EU, Europeans from across the diverse cluster of countries have expressed a strong interest in animal welfare. [ 114 ] Spain, for instance, whose citizens ranked animal welfare a lower priority than the citizens of any other country in the EU, nonetheless passed a landmark nonlegislative measure recognizing rights of life and liberty to great apes. Though the measure has been stuck in Parliament and has yet to become law, [ 115 ] its initial passage was an import symbolic measure that chipped away, if only slightly, at the gaping legal divide between human and nonhuman rights. Though no reliable comparative statistics are available, it is safe to say that few if any parts of the western world place as a high a premium on animal welfare as do Europeans. This was true not only ten years ago, when new legislation was getting passed. It remains true today.

European politicians are sensitive to this support. As they have done in the past, representatives in the EU remain aware that their constituents care about this matter. At the 2006 EU Conference on Animal Welfare, for instance, Markos Kyprianou, the European Commissioner for Health and Consumer Protection, said : “ Some people ask whether this is the right time to talk about animal welfare as a priority issue in the food chain, citing international competition and the difficulties certain sectors such as poultry are currently facing. My answer to this is a clear ‘yes’. Surveys have shown that consumers are strongly committed to animal welfare improvements and are willing to pay for them. So animal welfare offers industry an opportunity to restore consumer confidence in the food chain and capitalise on the marketing advantages it offers.” [ 116 ] Far more so than America, European countries—both their people and their politicians—appear to remain committed to animal welfare reform.

B.  New EU Animal Health Strategy

Nowhere is this ongoing commitment to animal welfare clearer than in one of the European Commission’s most recent articulations of its animal health policies. The Commission’s Animal Health Strategy (2007-13)—the second factor suggesting that any apparent legislative standstill is likely to be short-lived—is the first comprehensive plan for ensuring animal health that the European Commission has ever put together. [ 117 ] The document sets out “the framework for animal health and welfare measures over the next six years.” Put together at the request of the European Parliament in the wake of the SARS, hoof and mouth, and other epidemics, [ 118 ] the new plan largely centers around human concerns—for instance, how better to coordinate EU monitoring and response mechanisms to avoid the economic devastation and human health problems that disease outbreaks among livestock can trigger. The document also, however, strongly suggests that animal welfare remains one of Europe’s important priorities. Indeed, animal welfare concerns thread the document. One of the new strategy’s four articulated goals is “to promote farming practices and animal welfare,” [ 119 ] which is endorsed as not only morally but strategically wise. [ 120 ] Making note of the “ethical concerns and the growing demand for improved animal welfare” in Europe, [ 121 ] the Report announces increasing openness to vaccination rather than mandatory slaughter, and a commitment to see fewer animals dead even in crises like hoof and mouth epidemics. The Plan also makes note of a proposed European Center on Animal Welfare, which would “coordinate and stimulate research in order to upgrade existing standards.” [ 122 ] Of course, the contents of the Commission’s strategy document are just that—not completed legislative achievements, but aspirational measures. It is nonetheless true that few other parts of the Western world have demonstrated this level of concern for the health of animals. In the United States, for instance, there are 220 veterinarians responsible for ensuring the wellbeing of 9 billion farm animals—over four million animals per vet. [ 123 ] If the strategy document is any guide, therefore, the EU remains wholly committed to animal welfare—not just relative to its counterparts in the Western World, but also relative to itself five or ten years ago.

C.  Assistance from the Environmental Movement

Third, in the long-term future, the growing environmental movement can also be expected to lead to certain animal welfare improvements in coming years. Now that global warming is so firmly entrenched as a major priority for the EU [ 124 ] —and indeed the rest of the world—one can only expect that industrialized farming will increasingly become a focus of reform. It is well established that, as are currently run, CAFO farms—which result in a combination of deforestation, high methane and nitrous oxide emissions, and extensive fuel-burning transportation of animal products—are responsible for an enormous percentage of global warming emissions. Indeed, according to a well-publicized UN Report from 2006 entitled “Livestock’s Long Shadow,” livestock already account for more greenhouse gas emissions than the transportation sector in its entirety. [ 125 ] As was reported in the newspaper of the UN’s Rome-based Food and Agriculture Organization shortly after the Report’s publication, “Livestock,” according to senior U.N. Food and Agriculture Organization official Dr. Henning Steinfeld, “are one of the most significant contributors to today’s most serious environmental problems. Urgent action is required to remedy the situation.” [ 126 ]

There already exist clear signs that the message from the U.N. Report is sinking in across Europe. [ 127 ] In September 2008, the Chair of the Intergovernmental UN Panel on climate change called on people to try limiting their meat consumption—starting with as little as one meat-free day a week. [ 128 ] Every Thursday in the Belgian city of Ghent, all dining establishments—restaurants, dining halls, and so on—go vegetarian for a day, and other meat-limiting initiatives have been launched by authorities on environmental grounds in England and Germany.[Id.] In the face of clear scientific evidence that current intensive farming practices are doing extensive damage to the planet, it seems reasonable to suppose it can only be a matter of time before Europeans, in addition to limiting their consumption of meat, as they have already started to do, start reforming farm practices to be more eco-friendly as well. Because environmentalism and animal welfare tend to go hand in hand—raising a cow on a pasture instead of a feedlot, for instance, involves a happier, more natural life for the cow, and less damage to the environment [ 129 ] —it can be expected that as the movement for environmental reform gains steam, it will tug along with it no small amount of farm animal welfare reform.

Together, these factors—the legislation shortly to take effect, the continuing European support for animal welfare, the new agenda for animal health articulated by the EU, and the growing environmental movement committed to curbing climate change—present strong reason to believe that, for whatever legislative slowdowns there may have been of late, the sun is rising, not setting, on progressive animal welfare legislation in Europe.