A nice read, Joren.
Litigation remains a potent weapon for improving the welfare of neglected animals. However, outdated laws, the rigorous nature of litigation, and technicalities constitute bulwarks against its effective deployment in some jurisdictions.
I just spotted this blogpost on litigation strategies (published yesterday): https://faunalytics.org/litigation-strategies-against-factory-farming-in-emerging-economies/ summarising this analysis (which looks very promising): https://law.lclark.edu/live/files/37463-a-comparative-analysis-of-litigation-strategies-in
TLDR: I argue that litigation is an effective tool to improve animal welfare in the EU and that NGOs should consider improving their litigation strategies within the EU
Disclaimer: I am co-founder of a Belgian NGO that focuses on animal welfare litigation (and may thus be biased in favour of more litigation)
A big thank you to Alice Di Concetto, Angie van Dijk and Eva Bernet Kempers for their thorough review. And Alice for inspiring me to write this.
Litigation is rarely discussed on this forum. Earlier posts have focused on the US (e.g. here and here) with the exception of this recent post from Nigeria. I think the topic deserves more attention, especially in the EU, where animal welfare litigation has been on the rise in recent years.
In the last few decades animal welfare legislation improved considerably in the EU but this trend is now coming to an end. EU legislation did not really improve in the last ten years. The most important improvement was the new legislation on cats and dogs which has only a marginal impact compared to the massive suffering of farmed animals. Since the European Commission announced it would reform EU legislation on farmed animals in 2020, it only issued one legislative proposal (on live animal transport). For all other legislation, including the outdated EU legislation on slaughtering and farm standards, the European Commission has organised another round of public consultations which is hardly a sign of progress.
Recent geopolitical events make it unlikely that legislation will improve anytime soon. The EU-Mercosur trade deal and other trade agreements push farmers to increase their pressure on the EU legislature, and this pressure is already tangible both in the streets and in the negotiation rooms. A common take is that this context requires greater funding dedicated explicitly to political advocacy. I agree that this is a pivotal moment for animal advocates fighting in the trenches of the EU bubble. But unless the geopolitical context radically changes in the short term, our movement should start exploring alternatives to traditional advocacy.
Some argue that voluntary pledges may be the best available option when legal reform is politically blocked. I think NGOs should consider other options and most notably the option to increase litigation efforts in order to enforce the legislation they helped enacting in the first place. The lack of public enforcement of animal welfare legislation is currently a major problem in the EU as authorities structurally fail to enforce several EU prohibitions (such as the prohibition to catch chickens by their legs and the prohibition on routine tail docking of pigs).
The current situation in the EU is similar to the one that the environmental movement faced in the US in the 1980s, when the Reagan administration defunded the Environmental Protection Agency (EPA) in order to limit public enforcement. Environmental NGOs reacted by litigating directly against big polluters but also against EPA to force it to implement legislation (as explained here and here). They were so successful that, once EPA regained its funding under the new administration, it asked NGOs for advice on how to challenge polluters (as narrated masterfully here). It is high time the EU animal advocacy movement starts following a similar strategy.
EU countries share the same basic legislation when it comes to farmed animals. This makes the EU fertile ground for litigation, as successful lawsuits in one EU country can be replicated in other EU countries. For example, when Wakker Dier successfully challenged the Dutch authorities for not enforcing the EU prohibition to catch chickens by their legs, the Harrison Collective launched a similar lawsuit against the Belgian authorities. Both cases are based on the same legislation and arguments, so Wakker Dier’s information considerably reduced the costs of preparing the Belgian lawsuit (which is still pending).
This cross-border collaboration is likely to increase in the future. The monthly case-law updates by the European Institute for Animal Law & Policy inspire NGOs and facilitate them in replicating what has worked in other EU countries. Court precedents from one EU country make it easier to assess the effectiveness of litigation in another EU country on a similar topic. Moreover, thanks to Access to Justice for Animals, animal protection NGOs and legal experts are now also exchanging information on procedural rules in EU countries. This also facilitates the effectiveness assessment as it becomes easier to take into account the procedural differences between EU countries.
While case law from one EU country facilitates litigation in another, NGOs should still analyse the effectiveness of lawsuits before initiating them. A good analysis goes beyond the legal analysis (that weights the chances of success against the costs and timing of litigation). It also includes an analysis of the overall (direct and indirect) effects on animal welfare (such as the effects of increased enforcement by authorities or social awareness). In addition, NGOs should also factor in potential negative effects, especially in the EU, as losing a lawsuit in one EU country may make it more difficult for NGOs in other EU countries to initiate similar lawsuits. Symbolic litigation that primarily seeks media coverage but is clearly without merit should definitely be avoided.
The most effective litigation strategies in the EU are probably those where NGOs of several EU countries work together to start litigation based on EU legislation. This limits costs, improves the quality of legal arguments and preparation, and increases the potential impact for animal welfare. Moreover, when several NGOs litigate against the same practise across EU countries, this sends a strong message to authorities and the public. It clearly demonstrates the scale of the problem.
Below is a short analysis of three litigation strategies that NGOs currently follow in the EU. Many NGOs are tempted to follow strategy 1 while strategies 2 and 3 are more effective.
The first strategy consists in bringing litigation against companies (such as slaughterhouses, transporters and farms) for a specific violation, either of animal welfare law or other legislation such as environmental, labelling or consumer law. The main issue with this strategy is that litigating against one violation after another is resource intensive. Moreover, even when the NGOs are successful and manage to get media coverage, these rulings are unlikely to convince others that structural change is needed. Many people will think the violation was an exception or, even worse, see it as a confirmation that structural change is not needed since legislation is enforced.
A more effective strategy is litigation that aims to ban a widespread illegal practice. There are two ways to achieve this. The first is by litigating against one or more responsible companies. If that lawsuit is successful, the ruling will not only ban the practise for the companies involved in the lawsuit but also force other companies to change their behaviour. Ideally, this litigation is part of a broader campaign to demand companies to change the practise.
The second option is that NGOs bring the enforcement authorities before court for not taking measures against the widespread illegal practise. This requires more preparation but has more long term effects as it pressures authorities to do more inspections and to impose effective sanctions. Following this approach, Dutch NGOs have already obtained many rulings that ordered Dutch authorities to enforce animal welfare legislation, for example against illegal transport method of pigs, illegal transport method of chickens and the use of illegal sow crates. Similar rulings exist in Germany, including a recent ruling that ordered German authorities to enforce animal welfare legislation for turkey farms.
A third strategy is to litigate against authorities because they adopted legislation and regulatory decisions that reduce animal welfare standards. This strategy is especially successful to overturn regulatory permits. Recent examples include the rulings that overturn an EU decision that authorised harmful fishing practices, a Belgian permit for a new salmon farm and a German permit for a new pig farm. There are currently also some interesting lawsuits pending against legislation, such as the lawsuit against Belgian legislation that allowed farmers to castrate piglets without prior training and the lawsuit against UK legislation that lifted the ban on catching chickens by their legs (the UK is not part of the EU but the ban was a remnant of EU legislation so the case is interesting for EU countries as well).
Very much related to this strategy is the litigation against legislative non-action. There are some lawsuits pending but I am not aware of any successful precedent that relates to animal welfare legislation. Most successful precedents in this context relate to cases where the legislative inaction qualified as a breach of human rights, an argument that is difficult to transpose in the context of animal welfare (as the lack of animal welfare protection does not as such qualify as a breach of human rights).
Thanks Joren for this reflection. Can you give a bit more insights on how these litigations can then lead to a change in EU legislation that can maximise the impact on animals across the EU? I often get this question and discussion around how litigation cannot and should not be separated from political lobby, otherwise its efforts can remain at a low impact level or even be undermined. Let's take the example of the holding chicken by the legs. As you rightly pointed so, in the EU this generated some commotion, as a result, when the transport legislation is revised at EU level, instead of improving the legal protection the plan is to remove it completely, making it worst than before. Without strong lobby action allied with the litigation, the impact can even become negative. The same for cases like pig castration or tail docking, they can lead EU legislators to be incline to just try and enforce outdated legislations instead of modernising them. Can you expand a bit on this topic? Happy to discuss it further as well :)
Thanks a lot for your insights and questions Ines!
“Can you give a bit more insights on how these litigations can then lead to a change in EU legislation that can maximise the impact on animals across the EU? “
It does not. The objective of the above three strategies is not to improve EU legislation. The aim is that existing legislation is respected in practice. My point is that EU legislation is unlikely to improve any time soon and that we should therefore focus on making sure that legislation that currently only exists on paper, is respected in practice. I believe strategies 2 and 3 are effective to improve animal welfare because legal prohibitions that were dead letter (eg illegal transport methods) become reality.
One exception is the litigation against legislative inaction (strategy 3bis). For example, the End the Cage Age lawsuit aims to force the Commission to come with a legislative proposal. This is a long shot, in my view, even if the lawsuit is successful.
And strategy 2 does not improve EU legislation but overturns Member State legislation that reduced standards. As a result, better standards apply. This is the situation of the 2023 Belgian pig castration legislation. If successful, Belgian farmers will again be banned from doing the castration themselves and will have to rely on vets (as was the case before the 2023 legislation).
“Without strong lobby action allied with the litigation, the impact can even become negative. “
I remember discussing this with you last year. And I concur with you that lobbying and litigation should go hand in hand. Lawsuits can facilitate lobbying because they make clear which open norms can later be enforced in practise and which not. Yet frivolous/abusive lawsuits can damage lobbying because lawmakers/politicians will be afraid to adopt open norms because they open the room for such lawsuits.
However, I am not convinced enforcement litigation (strategy 2) can have negative welfare impact:
And are there many examples of EU legislation that is changed because it is enforced (even outside animal welfare)? On lifting chickens by their legs: I think the Commission wanted to lift this ban way before NGOs started enforcement litigation on this. Already in 2021, the Commission communicated that the ban must not be enforced for chickens because it will be revised anyways.