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 are now sharing our overall assessment. Our positive interpretation of the oral reasons for judgment and the press release of the court have been confirmed and some aspects have been substantiated.
The few 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.
So far, it has hardly been discussed that the Federal Administrative Court did not have the legal possibility to order an immediate stop of the chick culling, even if it had wanted to. The judges could only have referred the proceedings back to the higher administrative court and instructed them to review their judgment according to certain stipulations. It would probably have taken years until a new ruling would have been passed and the killing of the male chicks could have gone on until then. It is likely that the end of chick culling will be achieved sooner thanks to the ruling as it is now.
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 cases like this one, Article 12 (freedom of profession) and Article 14 (right to 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
The following 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 its press release, the court states: »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.
The written reasons for judgment state: »The inclusion of animal protection in Article 20a of the German Constitution and the special protection it is thereby given […], have further strengthened the standards that have been set for animal protection by sub-constitutional law […]. Animal protection is to be considered as an interest on constitutional level when making assessment-based decisions. It may justify the downgrading of other constitutional interests, for example, by restricting fundamental rights.
The written reasons for judgment furthermore discuss the constitutional right of freedom of profession of the hatchery operators. The court of the previous instance had shown concern that the ban of chick culling could jeopardize this profession. The Federal Administrative Court, on the contrary, did not see any jeopardy for the professional practice or the freedom of profession because »the hatching of eggs will still be allowed; also, the decision of the hatchery operator, whether he or she be hatching eggs from laying hen breeds, broiler chicken breeds or dual-purpose chicken breeds will still be his or her own. If, however, the hatchery operator chose to further hatch eggs from particularly high-performing laying hens, he or she would also have to rear the male chicks of those breeds even if they are less suitable for fattening.«
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 economic interests will not be accepted as a »good reason« in accordance with Article 1 of the Animal Welfare Act simply because they are economically plausible. This ends the one-sided interpretation in favor of the animal industry.
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.
The court repeatedly emphasized the protection of life in its written reasons for judgment and explained why the culling of male chicks is unlawful: »The ethically well-founded protection of life [emphasis added] based on the conception of the Animal Welfare Act, is not only being deferred for these animals, it is being abandoned completely.« And further: »These types of approaches fundamentally contradict the meaning of animal protection as it is stated in the Animal Welfare Act, which is based on ethics and protects life itself. The life of a male chick from a laying hen breed is being denied all value.«
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.
Short 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.
No reliance on »customary law«, when veterinary inspection offices make wrong decisions
Livestock owners have no claim to keep relying on wrong decisions made by the veterinary inspection offices at the expense of the animals in the future, even if these decisions were made repeatedly and over an extended period of time. The written reasons for judgment state: »A lack of enforcement in animal protection does not mean that the livestock owner can trust in being allowed to continue his or her former behavior in the future.« This means specifically: Just because the killing of male chicks has been tolerated by the authorities for years, the hatchery operators cannot automatically deduce the lawfulness of this practice and claim the right to continue with this practice. The same is true for other violations of the Animal Welfare Act.
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 in Germany, 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. 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 farmers. 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 positive aspects of the ruling listed here show that we now have new, valuable leverage to tackle many of the excruciating practices and de jure »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.
Our executive board member Hans-Georg Kluge, was the attorney of the counties that had ordered to stop the killing of male chicks. You can find his analysis of the ruling here (in German).
Since there is no official translation available, we have translated the written reasons for judgment ourselves.