After having analyzed the ruling on chick culling of the Federal Administrative Court and the »good reason« according to Section 1 of the Animal Welfare Act, we now share our overall assessment. Since the written judgment is not yet available, individual points may change slightly or new ones may be added. However, we do not expect any more major changes because the written judgement will specify and not change the short verbal statements of the presiding judge as well as the contents of the press release of the court.
The Negative Aspects of the Ruling
Three essential points can be summarized here:
Chick culling is not stopped immediately
For the time being, the Federal Administrative Court continues to allow chick culling. However, the court cites three »special circumstances« due to which it permits to continue this practice:
- The killing of day-old chicks has been tolerated for decades. Against this background it is not possible to demand an immediate end of this practice.
- Without a transitional period, the hatcheries would first have to switch over to the poorly developed approach of rearing male chicks and switch again later to in-ovo sexing technology or to a more developed rearing method. According to the court, this dual transition weighs more heavily than a singular transition.
- An alternative (sexing) will soon be available for the entire market.
As disappointing as it may be that the Federal Administrative Court has not decided to stop chick culling immediately: It has made clear, with the above-mentioned arguments, that the economic situation of the hatcheries may only exceed animal welfare for a limited period of time.
There is no clear deadline for the phase-out period
The Federal Administrative Court did not set a deadline for the withdrawal from the killing of male chicks but only stated that it must take place in the »near future«. A clear and short deadline would have been preferable.
Economic aspects are taken into account when weighing up the options
The court considers economic aspects when contemplating whether there is a »good reason« under the Animal Welfare Act to inflict pain, suffering or harm on an animal. A purely ethically motivated judgement which completely ignores economic interests would have been desirable. However, that does not comply with the basic principle of weighing up interests in German constitutional law. This is why it was not to be expected that the Federal Administrative Court would currently go as far as we would favor. In principle, Article 12 (freedom to choose an occupation) and Article 14 (property) of the German Constitution mean that the interests of livestock farmers must always be taken into account in some way under German constitutional law.
The Positive Aspects of the Ruling
These aspects clearly outweigh the negative ones. However, only few media reports have taken the positive aspects into account so far.
Killing chicks is essentially »unreasonable«
We are delighted that the Federal Administrative Court has clarified that the Animal Welfare Act will have to be reinterpreted since the introduction of the national objective of animal protection. The national objective was incorporated into the German Constitution in 2002 (Article 20a). The court distinguishes a time before and a time after this introduction.
Section 1 of the Animal Welfare Act states: »No one may cause an animal pain, suffering or harm without good reason.« Before the introduction of animal protection as a national objective, the killing of male chicks was to be interpreted as a »good reason«.
In the press release, it says literally: »In the light of the national objective of animal protection which was included in the German Constitution in 2002, the killing of male chicks is no longer viewed as a good reason when considered in its own right according to today’s values. The interests of animal protection weigh more heavily than the economic interest of the hatcheries […]«.
National objective and »good reason« are significantly upgraded
In the past, lawyers of the animal industry had claimed that the introduction of the national objective of animal protection would have no consequences whatsoever. The Federal Administrative Court has clearly rejected this view: The national objective has quite substantial effects – among other things, on how the »good reason« in the Animal Welfare Act is to be interpreted.
Improvements for the entire animal welfare legislation and for all animals
Not only chick culling will be stopped in the foreseeable future. The sentence »No one may inflict pain, suffering or damage on an animal without good reason« (Section 1 Animal Protection Act) now has a significantly higher weight than before the ruling.
Previously, courts usually did not interpret the »good reason« in the interests of the animals. The animal industry also routinely states that improvements could not be made for cost reasons. Now, we have a ruling of the court of last resort which requires a stricter interpretation, which is de facto binding for the other courts, because otherwise their rulings will be overturned. The Federal Administrative Court states that »a balance must be ensured between animal welfare and human interests«. This ends the one-sided interpretation in favor of the animal industry.
A drop of bitterness: We would have liked to have seen more details on the »good reason«. These could, however, still follow in the written judgment.
The protection of life
Animal welfare lawyers have always argued that the Animal Welfare Act provides protection for life, but no court has confirmed this until now. On the contrary: the protection of life was rather denied by courts. Now we have a ruling by the court of last resort which states that the Animal Welfare Act protects »not only the well-being of the animal, but also its life as such«. This is a groundbreaking development.
Minister Klöckner under pressure
Federal Minister of Agriculture Julia Klöckner had announced that the large-scale switch to in-ovo sexing could take place in 2020. The Federal Administrative Court presumably built on that statement when it ruled that the phase-out must take place »in the near future«. The Minister is now under extreme pressure to achieve this goal by 2020. If she does not succeed, we will file a lawsuit with the aim of establishing that chick culling must now be stopped definitively.
Shorter transition periods
The transitional periods for ending »unreasonably« inflicted pain, suffering and harm must be short. Due to the wording »in the near future«, we do not see any possibility for the extremely long deadlines for animal welfare improvements in the past.
The Federal Administrative Court only allows chick culling on a transitional basis because the alternatives will soon be available. There would probably not have been a transitional period if the in-ovo sexing technology had been far from becoming market-ready. This means that in other cases, too, the transitional periods must be short in order to end »unreasonable« pain, suffering and harm. If there are no alternatives, it is not acceptable to wait for alternatives for an indefinite period of time.
Strong momentum for »our« constitutional appeal
The content of the ruling of the Regional Court Heilbronn, according to which in factory farming practically everything would be legal – including violation of applicable animal welfare legislation – is now swept aside. We support the animal rights activist Jonathan Steinhauser with his constitutional appeal against this judgement which was even confirmed by the Higher Regional Court. This judgement could have become a gigantic problem for animal protection, but this danger is now averted.
In addition to an almost complete legalization of intensive livestock farming, the ruling of the Regional Court Heilbronn would also have led to a criminalization of investigations in factory farms if the constitutional appeal had failed. The legal justification for these investigations by animal rights activists is that the veterinary offices often do not proceed against conditions that violate animal welfare. Therefore, the only effective means left is to make these offences public. The chances of success of the constitutional appeal have now drastically increased.
Higher chances of success for criminal charges and lawsuits
Section 17 of the Animal Welfare Act is particularly relevant for criminal charges. It states that anyone who kills a vertebrate animal without good reason shall be punished with a prison sentence of up to three years or a fine. In the past, the federal prosecutors had usually interpreted the »good reason« in favor of the user of the animal. Now they must follow the stricter interpretation of the Federal Administrative Court. An example is the culpability of killing »surplus« piglets in pig breeding. From our point of view, it is now clear that there is no »good reason« for this and that the protection of life is applicable. Killing »surplus« piglets is therefore illegal and could even be punished with jail time.
As mentioned above, the animal industry is constantly referring to excessive costs that allegedly make it impossible to stop pain, harm and suffering. Examples include the end of amputations without anaesthesia (e.g. teeth and tails in pigs, beak tips in turkeys and ducks, horns in cattle) and the tethering of cows. These arguments are now no longer justifiable and can be easily attacked with lawsuits.
The eight positive aspects of the ruling listed here show that we now have new, valuable leverage to tackle many of the excruciating practices and senseless killings in factory farming.
According to the Animal Welfare Act, no one is allowed to be »causing an animal pain,suffering or harm without good reason«. What exactly is to be considered »reasonable« has so far not been entirely clear. The state of North Rhine-Westphalia has denied the »reasonable grounds« in the case of the killing of male day-old chicks in laying hen breeding and has therefore instructed the responsible veterinary offices in 2013 to prohibit the practice by administrative order. Two hatcheries had sued against this. In the court proceedings, it was debated whether economic reasons alone could justify the killing of the chicks, i.e. whether they could be regarded as a »good reason«. The Minden Administrative Court and the Münster Higher Administrative Court had ruled in favor of the hatcheries in the lower courts. These legal entities thus came to the ruling that chick culling is to be considered as reasonable. On June 13, 2019, the Federal Administrative Court ruled on the appeal and made significant improvements.