As of January 1, 2026 (in certain cases of hardship as of January 1, 2029), the use of cages for laying hens will be completely prohibited in Germany (see § 45 (4) TierSchNutztV). While undoubtedly a success, this milestone―which is not without pitfalls and features a notoriously underestimated key player―is the result of a very long process in a specific political and legal context.
The long way we have come
As early as the 1970s and 1980s, public prosecutors’ offices and courts dealt with countless cases concerning the use of cages for laying hens.* While there was no doubt that, legally speaking, the use of battery cages objectively fulfilled the requirements of a criminal offense (namely: cruelty to animals), nobody was actually convicted of this offense. The reason for this is quite simple: How could farmers be held accountable for operating a farming system that had been approved by the authorities and in some cases even been state-subsidized?
In 1988, a bylaw regulating hen keeping came into effect, the »Hennenhaltungsverordnung« (HhVO). Essentially, it regulated the keeping of hens in battery cages. Hens weighing less than 2 kg were granted a minimum of 450 sq. cm, and hens weighing more were given a minimum of 550 sq. cm―both of which are significantly smaller than a letter-sized page. Two years later, the government of North Rhine-Westphalia filed an application with the Federal Constitutional Court (FCC) to determine the legal validity of the bylaw (a so-called ‘abstract judicial review of statutes’). It was not until 1999 that the FCC declared the bylaw void and incompatible with the German constitution. Amongst other things, the regulations contained in the bylaw did not provide for hens’ need for rest or consider their desire for simultaneous intake of food.
Coincidentally, only a few days later, the EU adopted Council Directive 1999/74/EC which laid down minimum standards for the protection of laying hens. While this directive abolished the conventional cages that had been in use in the EU up until that point, an end to the »cage age« was not in sight. Firstly, under this directive, cages that had been put into operation before 2002 and had undergone some minor improvements, were allowed to continue until the end of 2011. Secondly, this directive implemented so-called enriched cages, which required the implementation of features such as litter, a nest and perches. However, with a prescribed minimum of 750 sq. cm per hen, the increase in ground surface was only marginal. Furthermore, cages were still allowed to be arranged like batteries.
Both the FCC’s ruling and the directive led to changes in the respective German law, but with cages still in place, albeit marginally larger than before. A real impetus for change came from a rather unexpected source: the retail industry. In 2003, negotiations led to ALDI Nord becoming the first retailer to go cage-free, meaning they discontinued the selling of shell eggs that came from hens held in cages.* Several years later, other companies followed thanks to negotiations led by the Albert Schweitzer Foundation (ASF). It is worth noting that the ASF’s negotiations not only focused on convincing companies to discontinue shell eggs from caged hens, but also included cage eggs used in egg products too.
In the meantime, however, the political climate in Germany changed. The conservative party demanded a longer transition period for the old battery systems and an implementation of enriched cages in the form of so-called »colony cages«. In 2006, both goals became a reality, with the respective bylaw changed in this regard. The German invention of »colony cages« unfortunately became the blueprint for cage systems in other countries.
The retail industry, however, continued on its own path, and a total of 22 companies had discontinued cage eggs by 2009.* In 2010, conventional battery cages were entirely prohibited in Germany (as of 2012 in the EU)―eleven years after the FCC’s original ruling. Coincidentally, also in 2010, the FCC―once again based on an application by the government of a federal state, this time Rhineland-Palatinate―ruled on the current bylaw and declared the regulations on colony cages unconstitutional. However, the court’s ruling was solely based on the violation of procedural laws. The lawmakers had not consulted the Commission for Animal Protection in the predefined way before passing the bylaw, thus violating procedural law and the constitution. However, instead of the FCC declaring the bylaw void, it opted to put a time limit on its validity, rendering it invalid as of April 2012.
In light of the FCC’s decision, Ilse Aigner, the Federal Minister for Agriculture at the time, put forward the notion that cages should become a thing of the past. Her main argument was that cage-based farming systems had become economically irrelevant and could therefore be abolished. Two aspects are worth noting in this regard. Firstly, the minister only sought to prohibit the implementation of new cages. Cage systems already in operation were to be discontinued as late as 2036. Secondly, the abolishment of new cages was not the result of sincere animal welfare ambitions. The fact that cage-based farming systems had become economically irrelevant only served as a convenient rationale for the changes that had already become a reality. Indeed, that almost every German retailer had discontinued cage eggs by 2011 was not the result of legal and political developments, but instead in large part due to the relentless hard work of the ASF in pursuing this topic over the course of many years.
It appears that the legal status quo followed reality. As of April 2012, the bylaw’s regulation on colony cages ceased to be in force. Existing systems can still be operated until the end of 2025 (until the end of 2028 in cases of hardship). The number of laying hens in cage systems has consistently been on the decline. In 2010, cages made up 18.2% of the total sum of farming methods; in 2015, 10.1% of hens were caged, with this figure dropping to 5.7% in 2020. As of 2021, enriched cages are prohibited in Germany (§ 45 (3) TierSchNutztV). In 2029, with colony cages finally forbidden, Germany will be cage-free at last―at least when it comes to laying hens.
The current egg market
In 2021, a total of 43 million laying hens were kept in Germany, 5.4% of which were held in cages (»colony cages«). This translates into 2.3 million laying hens. Eggs from caged hens must be marked as such (Art 12 (2) lit. a Commission Regulation (EC) No 589/2008). However, there is no rule mandating the identification of the farming method in processed foods containing eggs. While the respective EU regulation permits EU member states to enact laws that can make such markings compulsory (Art 38 (2) Regulation (EU) No 1169/2011), Germany has opted not to do so.
The 2021 report of the Federal Office of Agriculture and Food (BLE) states: Although cage eggs are no longer sold by retailers, the main customer for cage eggs is the egg product industry (and, to a lesser extent, the pharmaceutical industry). Germany imports eggs and egg products from abroad, mostly from the Netherlands and Poland, but also from Austria, France and Italy. In the latter two countries, enriched cages account for 50% of the farming methods used with laying hens. Although the number of imported eggs and egg products is on the decline, this figure would seem to indicate that some processed foods do contain eggs from cage farms.
By choosing not to indicate the origin of eggs in processed foods, Germany has therefore not only failed to enable consumers to make informed decisions when buying egg products, but also neglected to incentivize foreign companies to opt for cage-free eggs when producing their foods.
Undoubtedly, the reforms and the later banning of cages in Germany are the result of various processes in a specific context. Nevertheless, some general conclusions can be drawn that might help to serve as a precursor for developments elsewhere.
Firstly, the German case shows that legal reforms can be hindered or can thrive depending on the respective political climate. Some political contexts are more favorable for animal welfare reforms than others. From experience, conservative local and federal governments tend to prioritize the needs of the agricultural industry over animal welfare concerns. It is therefore crucial to monitor political developments closely and to choose moments for political initiative wisely.
Secondly, the two aforementioned FCC rulings were the result of initiatives by federal state governments. Each federal state government had filed an application for an abstract judicial review of statutes. On each occasion, the respective government’s legal concerns and doubts were confirmed by the FCC’s ruling. This shows that state institutions can play a vital role in bringing about change in the animal welfare sphere. Progressive and animal welfare-oriented state institutions should be identified, supported, and, where appropriate, liaised with in order to bring about change.
Thirdly, the German example also shows the important role that companies play in advancing animal welfare. Retailers started to discontinue cage eggs despite policymakers continuously creating ways to maintain cage-based farming systems as a legal option. It goes without saying that the retailers’ decision to do so did not come about in a vacuum. The hard work of the Albert Schweitzer Foundation was vital in convincing retailers to no longer include cage eggs in their product range and egg products in store brand products. In this regard, it would be remiss not to mention the important work carried out by the undercover investigators who documented the conditions under which factory-farmed animals are forced to live, thereby informing consumers about the cruel reality experienced by laying hens in cage-based farming systems and equipping them to make informed decisions.
*See Hirt, A. / Maisack, C. / Moritz, J. 2016: Tierschutzgesetz. Kommentar, Verlag Franz Vahlen, München, 3. Auflage, Vorbemerkung zu §§ 12–15, Rn. 2.