Ditch the Directives and Make Like California: The Path to Improved Conditions for E.U. Farm Animals Does Not Begin in Brussels

Introduction

The European Union is not doing enough to protect farm animal welfare—at least, so say animal rights activists and their fellow travelers. Earlier this year, the E.U. Parliament approved a report that will guide future E.U. legislation on farm animal welfare. Among other critics, Olga Kikou, head of the advocacy group Compassion in World Farming (CIWF), lambasted the report as “a text that reads as if it was written 50 years ago, that pays no attention to the cruelty, health risks and environmental damage caused by the factory farming system that prevails today.”

The definitions of “factory farm” vary, but the common characteristic, which underlies the concerns raised by Kikou, is intensive confinement: housing animals in very tight quarters. Animals raised in these conditions often develop physical health problems. Living in such cramped, barren environments also causes the animals to experience stress, which is associated with harmful behavior amongst the animals, like tail biting in pigs and feather pecking in hens. Livestock often undergo mutilation to prevent the aforementioned behaviors: pigs have their tails “docked” (amputated) and hens have their beaks “trimmed” (partial removal). These are both painful and traumatic procedures.

As Kikou noted, factory farms also create environmental problems. The animals on these farms produce a lot of waste, which is not used as crop fertilizer (as it is in traditional farming operations). Instead, that waste often ends up in fetid “storage lagoons” that produce air-polluting gases like methane and ammonia. There is also some evidence that the emission of particulate matter and suspended dust from factory farms can increase asthma in neighboring communities and cause asthma and bronchitis in workers on the farms.

Suffice it to say, E.U. activists have good cause to be alarmed by the continued existence of factory farms. But as I elaborate below, history has shown that legislation passed by the central E.U. Parliament can be a flawed vehicle for achieving farm animal welfare reform in a timely fashion. Moving forward, activists should consider focusing their efforts on getting individual E.U. member states to pass animal welfare laws that create powerful economic incentives for farmers across the E.U. to meet their standards. In short, they should try to harness the California Effect.

In the past, the Golden State has excelled in what Professor David Vogel of U.C. Berkeley’s Haas School of Business has described as “the upward ratcheting” of national regulatory standards through market mechanisms. This strategy has successfully been deployed in areas like product labeling, data privacy, and vehicle emissions. More recently, California has sought to do the same with regard to farm animal welfare standards, passing a ballot initiative—Proposition 12 (“Prop 12”)—and promulgating accompanying regulations that largely prohibit the sale of eggs, pork, and veal in the state unless the seller can show that the products came from animals raised per California’s specifications.

Although one of the E.U.’s foundational treaties generally prevents Member States from creating such restrictions on trade with other Member States, this Essay argues that a farm animal welfare law mimicking California’s Prop 12 would be legal under an exception for laws regarding public morality.

I. The Pitfalls of the E.U.’s Previous Attempts and the Promise of California’s Prop 12

Since the late twentieth century, the E.U. Parliament has sought to establish a farm animal welfare regime through a series of legislative acts called “Directives.” This Essay’s critique focuses on two Directives. The first, Directive 99/74, set forth welfare standards for egg-laying hens. The second, Directive 01/88, set forth such standards for pigs.

This Part argues that there were two main problems with the implementation of these two E.U. Directives. First and foremost, E.U. authorities are quite limited in their power to enforce the standards set by their legislation. Member States themselves are entrusted with policing conduct within their borders and may either have an incentive to turn a blind eye to violations or lack the resources to police effectively. Even when violations become known to or are suspected by the E.U., the process for imposing penalties is circuitous.

Second, the transition periods for Member States to adopt new requirements were arguably too long. There is some evidence that very soon after the E.U. started to apply pressure (in its limited capacity) on Member States which were out of compliance with the Directives’ requirements, the industry started to comply very quickly, at least according to their self-reporting. If the compliance data is accurate, it suggests that livestock businesses were simply sitting on their haunches, ready to begin adopting new standards, but waiting until someone got around to making them comply.

This Part argues that a law mimicking Prop 12 would mostly circumvent these problems. By and large, this scheme would put the onus on farmers to comply with standards as soon as economically feasible, although the law would (and should) still designate a transition period for the industry to come into compliance, as Prop 12 did.

A. Enforcement Problems Inherent in E.U. Law

Generally, E.U. law is enacted when the European Commission (“the Commission”)—the E.U.’s executive branch—proposes legislation, and the E.U. Parliament and Council of the European Union vote to approve it. These E.U. bodies may pass two kinds of legislative acts: directives, which require E.U. countries to achieve a certain result but leave them free to choose how to achieve it by passing national laws (a process known as “transposition”), and regulations, which “apply automatically and uniformly to all E.U. countries as soon as they enter into force.”

If an E.U. Member State fails to transpose the provisions of a directive, the Commission may initiate a multi-step infringement procedure against that state. (The Commission may also launch a procedure based on suspected violations of E.U. law.) However, that infringement procedure is, in reality, more like a series of warnings. The infringing Member State first gets a notice from the Commission, which the state gets around two months to reply to. If the problem persists, the Commission sends the country a formal request to comply with E.U. law. If the infringing state still has not transposed, the Commission refers the matter to the Court of Justice of the European Union (CJEU), which interprets E.U. law and treaties. If the CJEU finds that the Member State has breached E.U. law, the infringing state is again told to comply, but this time by the CJEU. This order is the last of the warnings; if it is ignored, the Commission can finally ask the CJEU to impose financial penalties on that state. Perhaps unsurprisingly, the E.U. itself concedes that “countries’ late transposition of directives remains a persistent problem.”

To make matters worse, late transpositions are just the tip of the iceberg when it comes to noncompliance. Member States are responsible for enforcing both the laws they pass to comply with directives and the regulations which apply automatically. In Member States where a regulated industry plays a major economic role, governments may have incentives to willfully ignore violations or, at least, deprioritize enforcement relative to other goals. Something along these lines seems to have happened with respect to the implementation of the E.U.’s current farm animal welfare regime.

B. The Dullaghan Report on Member State Compliance Failures

A 2020 report by researcher Neil Dullaghan of the think tank Rethink Priorities extensively investigated compliance with E.U. farm animal-welfare directives, including Directives 99/74 and 01/88. Dullaghan documented serious compliance issues with both.

Directive 99/74 provided that no new battery cages should be built after 2003 and that existing battery cages be phased out by 2012. (Battery cages are small, wire enclosures in which multiple chickens are crowded). The Dullaghan Report found that when the 2012 deadline came around, thirteen countries were in breach and anywhere from forty-six to eighty-four million hens (14–30% of total E.U. egg-laying hens) were still being kept in battery cages. But by 2013, there were allegedly only 800,000 hens in conventional battery cages (0.2% of total EU egg laying hens), and by 2014, there were supposedly none in farms with more than 350 hens.

Dullaghan raises the possibility that such a sudden, precipitous decline means countries may have fudged their data. But he notes that a significant increase in shell egg prices in the E.U. following the deadline, a drop in egg production, and a decrease in the total number of hens kept in this period all suggest that countries were indeed transitioning: a similar trend occurred in Germany prior to their national ban on battery cages coming into place in 2009.

What does this tell us? It’s likely that farmers had the capacity to phase out battery cages sooner but waited to do so until the deadline forced their hand. As Dullaghan put it:

[A] farmer transitioning before the existing conventional battery cages reached the end of their normal productive lifespan and before a competitor did so would mean incurring costs and risking a competitive disadvantage years before it was necessary. Maybe we should instead ask why there was progress at all before 2012.

Directive 01/88, regulating housing conditions for pigs, also featured a phaseout mechanism for individual sow stalls, also known as “gestation crates.” No such stalls were to be installed after 2003, and existing individual stalls were given a grace period until 2013. Again, things did not work out this way.

Per Dullaghan, in January 2013 as many as twenty-two of twenty-seven Member States were out of compliance with Directive 01/88. Two to five million of the thirteen million sows in the E.U. were in illegal individual stalls, including around 52–67% of sows in Germany and France—the largest pig producers among the Member States.

Once the E.U. applied some pressure in February 2013, demanding regular updates of data on compliance, reported compliance figures grew dramatically—increasing by 18% on average and by more than 30% in some countries. However, in this instance, Dullaghan’s research does not cite data (such as decreases in production and increase in product prices) suggesting that compliance with pig production regulations really occurred so quickly. Furthermore, he notes that investigations by CIWF and the U.K.’s National Farmers’ Union claimed to uncover that supposedly compliant farms in Spain and the Netherlands were still using gestation crates.

Regardless, whether the Directives’ compliance data were largely fudged or whether farmers actually had the capacity to turn on a dime and comply is beside the point, at least as far as this Essay is concerned. Both represent policy failures if the goal was to improve conditions on the ground for farm animals as soon as practicable. But in the United States, at least, this is exactly what Prop 12 is poised to achieve, assuming it survives an ongoing constitutional challenge.

C. Prop 12 Harnesses the California Effect

On November 6, 2018, California voters approved Prop 12, formally known as the Farm Animal Confinement Initiative. The law proscribes two kinds of conduct.

First, Prop 12 makes it illegal for California farms to confine veal calves, breeding pigs, and egg-laying hens in a “cruel manner”: one that prevents them from lying down, standing up, fully extending limbs, or turning around freely. Second, and most important for this Essay’s purposes, Prop 12 outlaws (with some exceptions) the knowing sale of veal, pork, and eggs derived from animals that were confined in a cruel manner.

To enforce Prop 12’s sales ban provision, the State of California implemented a far-reaching regulatory scheme. Before making sales in California, distributors of covered animal products (no matter where they are based) will be required to register with the California Department of Food and Agriculture (CDFA). All registered distributors must submit to the inspection of their facilities and business records so that the CDFA can ensure that their covered products originated from certified producers. In turn, producers must allow the CDFA to inspect their facilities once every twelve months in order to become (and remain) certified.

Originally, Prop 12 was supposed to take effect on January 1, 2022; a delay in promulgating the aforementioned regulations and a California trial court order have temporarily pushed back enforcement. But the state may have bigger problems: a constitutional challenge to the law brought by the National Pork Producers Council has made its way to the Supreme Court. The petitioners argue that, under the Dormant Commerce Clause, the law has an impermissible, extraterritorial effect on out-of-state activities and, alternatively, that it imposes an undue burden on out-of-state commerce that is clearly excessive compared to its local benefits.

Prop 12’s legal hurdles under the American constitutional system are not an issue for E.U. proponents of a similar law, per se. But it turns out that an analogous provision in the Treaty on the Functioning of the European Union (TFEU) presents a similar, though not insurmountable, problem for E.U Member States.

II. The Free Movement of Goods Problem

A Prop 12–style law could very well be a prima facie violation of an E.U. legal doctrine called the free movement of goods (FMG) principle, enshrined in Title II of the TFEU. It prohibits E.U. Member States from imposing on each other “customs duties on imports and exports and . . . all charges having equivalent effect.” It also proscribes any “quantitative restrictions,” or measures having equivalent effect, on imports and exports.

The CJEU has taken a broad view of the FMG principle. In its first major case implicating this issue, Procureur dur Roi v. Dassonville (E.C.J. 1974), the CJEU held that measures having “effect equivalent to quantitative restrictions” includes “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.” Since Dassonville, the CJEU has developed the doctrine in a way that would leave a Prop 12–style law vulnerable in a few respects.

The most obvious violations of the FMG principle occur when the national law in question explicitly discriminates against foreign goods. For example, the CJEU has held that German legislation explicitly requiring inspection only for imported versions of certain agricultural products, like apples, violated the FMG principle. Clearly, this is not what a Prop 12–style law does.

The CJEU has also found, however, that facially neutral laws with the effect of disfavoring imports can constitute FMG violations. In Rewe-Zentral A.G. v. Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon) (E.C.J. 1979), the German law at issue set a minimum alcoholic content of 32% for “potable spirits” (liquor) sold in the country. Rewe-Zentral, a German retailer, was thus prevented from importing and selling a French liqueur called Cassis, which typically had an alcoholic content of 15–20%. Notwithstanding the fact that the provision did not give a material advantage to domestic producers, the CJEU found a prima facie FMG violation because the result of the provision was that the “traditional products” of other Member States could not be put into circulation in Germany.

A Prop 12–style law could potentially violate the FMG principle for the same reasons that the German law in Cassis de Dijon did. Remember: part of the point of this strategy is that the enacting Member State will be a first (or early) mover in adopting farm animal welfare standards that are relatively strict compared to the rest of the Member States. It’s easy to imagine a situation where a retailer from the enacting state (say, the Netherlands) challenges the law because it suddenly prevents them from importing the traditional pork products of other E.U. countries, like jamon iberico from Spain.

Ideas of direct and indirect discrimination aside, the scholar Tim Connor also posits that more recent CJEU cases simply focus on whether a “restriction to the right of free movement” exists more generally. One of those cases could bolster the argument against a Prop 12–style law in the E.U.

In Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v. Elliniko Dimosio and Nomarchiaki Aftodioikisi (E.C.J. 2006), the CJEU considered a Greek law that demanded that vendors of bakery products hold certain licenses for the operation of bakeries. To obtain those licenses, the vendors had to meet requirements like having “areas for kneading equipment . . . a solid-fuel store [and] . . . a flour store.” Critically, the law applied not only to fresh-baked products but also to “bake-off” products: goods that were “delivered at sales outlets after the main stages of preparation of those products ha[d] been completed.”

The Greek government officials argued that the law simply regulated the manner in which these bake-off products were marketed, a practice the CJEU had previously approved. But the CJEU disagreed. Instead, it found that the Greek law “aim[ed] to specify the production conditions” for the bake-off products and created additional costs for vendors who would not otherwise need to comply with the requirements for bakeries. Thus, the CJEU held that the law constituted a barrier to the importation of these bake-off products, even though it made no finding that the law disfavored imported bake-off goods any more than it did the intranational shipping of such goods from Greek producers.

A Prop 12–style law would bear an obvious similarity to the Greek law in Alfa Vita. The certification and registration scheme involved does more than simply regulate the arrangements for selling animal products in the jurisdiction: it regulates the production conditions of the goods in question. In doing so, the law would not facially discriminate against foreign animal products, but it would, in operation, certainly create a barrier to their importation.

III. The Public Morality Solution

Fortunately for proponents of a Prop 12–style law, Article 36 of the TFEU contains exceptions to the FMG principle. Member States can create restrictions on trade when justified by “general, non-economic considerations” like public morality and public security, if the measures are proportional to the public interest and neither discriminate arbitrarily nor simply disguise a typical restriction on trade. To date, the CJEU has interpreted the public morality exception rather narrowly. However, a stance that the E.U. has taken on the international stage may push the CJEU to rule in favor of Prop 12–style laws.

Typically, the cases where the CJEU has sanctioned this justification have concerned “obscene, indecent articles.” For example, in Regina v. Henn and Darby (E.C.J. 1979) the court found that the U.K.’s ban on the importation of pornographic articles passed the smell test. However, even within this realm, specifically disfavoring imports is prohibited. In Conegate Limited v. HM Customs & Excise (E.C.J. 1985), the CJEU found that a U.K. prohibition on importing inflatable sex dolls and other “erotic articles” could not qualify for the public morality exception so long as similar products could be manufactured and marketed domestically.

 Klas Rosengren and others v. Riksåklagaren (E.C.J. 2007) dealt with a Swedish prohibition on the import of alcohol by private individuals. Relying on the exception for restrictions aimed at the “protection of the health and life of humans,” Sweden argued that the prohibition was intended to protect young people against the harmful effects of alcohol consumption. The CJEU held the law to be disproportionate because its objective could have been achieved by requiring the purchaser to certify on import that they were more than twenty years old.

In principle, parties seeking to challenge a Prop 12–style law and defeat the public morality defense could point to a difference in kind between the obscene articles previously recognized by the CJEU and the food products regulated by the law at issue. Pornographic articles are indecent per se, the argument would posit, while items like eggs and pork, even if created through an immoral process, are not. Therefore, a Prop 12–style law would not be seeking to regulate public morality within the meaning of the treaty exception but would instead be functioning as an ordinary restriction on trade.

Fortunately for proponents of a Prop 12–style law, however, the E.U. itself has previously taken a contradictory position on this issue and succeeded.

The General Agreement on Tariffs and Trade (GATT) 1994, which established the WTO, seeks to eliminate quantitative restrictions on imports and exports between States party, much like the TFEU. Like its European counterpart, GATT also specifically allows exceptions for measures by States party which are “necessary to protect public morals,” if they are neither applied discriminatorily to other States party nor serve as disguised restrictions on international trade.

In 2009, the E.U. passed a Regulation (“the Seal Regulation”) banning the importation and placing on the market of seal products, with only a few exceptions. In its preamble, the Seal Regulation acknowledged “expressions of serious concerns by members of the public and governments sensitive to animal welfare considerations due to the pain, distress, fear and other forms of suffering which the killing and skinning of seals, as they are most frequently performed, cause to those animals,” which had already led some Member States to adopt legislation prohibiting the import of such products.

Norway and Canada brought complaints before the WTO challenging the E.U.’s Regulation on various grounds, including that it was inconsistent with the GATT’s prohibition on quantitative restrictions on imports and exports. The E.U.1 argued that the Seal Regulation was “necessary” to protect public morals within the meaning of Article XX(a) of the GATT. Both the initial WTO Panel and the Appellate Body agreed, although the Appellate Body also found that the regulation failed to meet the related non-discrimination requirements. (The E.U. later updated the Seal Regulation to meet the WTO’s requirements.)

The E.U.’s stance at the WTO will not bind the CJEU if it considers a public morality defense to FMG attacks on a Prop 12–style law. Still, for a court with broad latitude to interpret the exception and without clear precedent to follow, the reasoning of the WTO’s Appellate Body in the Seal Regulation disputes and the E.U.’s explicit acknowledgement of the validity of animal welfare considerations in this context ought to be decisive.

IV. Political Obstacles to Prop 12–style Animal Welfare Reform

Legal arguments aside, there are political hurdles to the successful deployment of the proposed strategy that should be acknowledged.

For starters, proponents may have an especially hard time passing Prop 12–style laws in the wealthy, populous Member States where they would be most impactful. This follows from the fact that the distribution of livestock production in the E.U. is very different than in the United States.

In the United States, the wealthiest and most populous states—California, Texas, New York, and Florida—are generally not the largest producers of farm animal food products. The one exception is Texas, which dominates sales of beef cattle along with Kansas and Nebraska. Egg production is concentrated in the Midwest, due to the availability of cheap chicken feed; Iowa is the country’s leading producer, followed by Ohio and Indiana. The Midwest is also well-represented in the pork sector, where Iowa is also far and away the biggest player.

In the E.U., the opposite pattern holds. The six Member States with the largest GDPs are, in order, Germany, France, Italy, Spain, the Netherlands, and Poland. According to recent estimates, about 75% of the egg-laying hens in the E.U. are in these six countries, each of which holds between nine and fifteen percent of such hens. In the pork market, Germany and Spain, the two largest producers by far, accounted for about 42% of total production as of 2019. In 2017, about a third of E.U. beef production came from France and Germany (the share is likely larger now, as the U.K., a Member State at the time, accounted for another 12%), and almost half of veal production came from Spain and the Netherlands.

Given this concentration, one can imagine that efforts at aggressive farm animal welfare legislation in these states would meet strong resistance from parties who would stand to lose profits from decreased supplies or increased costs. These could include farmers’ lobbying groups and importers from other countries.

Second, even if Prop 12–style laws are passed in individual Member States, the relationship of E.U. law to Member State law could give opponents a second bite at the apple. Just as federal law preempts state law in the U.S., E.U. law generally has “primacy” over Member State law. Although primacy does not apply in all areas of policy, Member States have ceded sovereignty with regard to the E.U.’s single market policy, which encompasses the free movement of goods, people, services, and capital.

The legal mechanics of primacy and the adoption of overriding laws are beyond the scope of this Essay. At first blush, however, there is a case that the E.U. Parliament could step in and invalidate the registration and certification scheme behind Prop 12–style laws, even if it would be inconsistent with its previous positions. If they can, there is a powerful reason why they might.

Farmers, through interest groups, hold a lot of sway in Brussels. As things stand, they receive a huge amount of subsidies via the E.U.’s Common Agricultural Policy, a program that, as a 2019 New York Times investigation described it, is “deliberately opaque, grossly undermines the European Union’s environmental goals and is warped by corruption and self-dealing.” The farmers would very likely apply pressure on the Parliament to override the offending national laws.

Conclusion

Previous efforts to improve farm animal welfare standards across the E.U. via Directive have yielded results slowly and inconsistently. Activists, politicians, and ordinary citizens who want future reforms to be quick and effective should steer clear of the E.U. Parliament and instead focus on passing national Prop 12–style laws one Member State at a time. Although this deployment of the California Effect within the E.U. is likely to face legal challenges under the “free movement of goods” principle enshrined in treaty law, it should be protected by the exception for laws justified by considerations of public morality.

The possibility of facing political hurdles in Brussels after-the-fact should not dissuade activists and politicians from this approach. Getting even one Prop 12–style law passed and setting up a confrontation with factory farmers in the Parliament could raise awareness and rally support for farm animal welfare reform across the E.U. Even if the Parliament does end up passing its own law, the country or countries that get on board with the Prop 12 approach and their political allies may be able to win important concessions that will improve animal welfare.

• 1At the time, the E.U. participated in the WTO under the formal moniker of the “European Communities.”