This week we’re going to explain the “chilling effect” of trade on European animal welfare protection. This is one of the key impacts of trade upon animal welfare that necessitates our work. We will point to key examples which support our argument that European trade policy should deal with animal welfare.

International trade governance has led the EU to take an inconsistent approach to animal welfare in trade policy. This creates a risk that domestic animal welfare measures will be undermined by unregulated imports. The chilling effect is largely a result of the EU’s political unwillingness to face potential disputes and its failure to take into account evolving interpretation of World Trade Organisation law which is now much more favourable toward the protection of animal welfare through trade measures.

EU Trade Measures that Protect Animal Welfare

The EU has, on occasion, coupled domestic measures with trade restrictions in order to ensure animal welfare protection:

• Regulation 348/81 restricts import of cetacean meat due to welfare concerns;
• Directive 89/370/EEC prohibits the import of whitecoat and blue-back pelts;
• 1992 Habitats Directive prohibits the sale or exchange of certain species in order to protect biodiversity;
• 1997 CITES Regulation restricts trade in endangered species;
• 2007 Cat and Dog Fur Regulation bans imports of cat and dog fur;
• 2008 Illegal, Unreported and Unregulated Fishing Regulation restricts ships from landing or transhipping their catch if they are found to participate in IUU fishing;
• 2009 Slaughter Regulation restricts meat imports that are not accompanied with a certificate stating the meat complies with the requirements of the regulation;
• 2009 Directive on Conservation of Wild Birds includes trade restrictions;
• 2009 Seals Regulation prohibits the importation of certain seal products.

Cause of the Chilling Effect

The establishment of the World Trade Organisation in 1995 brought with it a new dispute settlement mechanism, making international trade law more enforceable. This, coupled with some unfavourable early case law from the WTO’s Panel, led the EU to be overly cautious in enacting trade measures to protect animal welfare. Although a causal relationship is difficult to prove, it can be argued that the WTO contributed to falling motivation amongst EU legislators to enact new domestic animal welfare measures. Modern interpretation of WTO law now proves that the establishment of the WTO need not have caused such a chilling effect at the EU (see our publication on this).

EU lawmakers often cite the WTO rules as a reason for failing to enact animal welfare protection measures. However, the case law does not support such an approach.

Below are four prominent examples of where EU animal welfare related trade measures were subject to considerable renegotiation, delay, and limitation due to developments at the World Trade Organisation.

• 1999 Laying Hens Directive bans use of battery cages for laying hens in the EU but does not restrict similar imports, despite numerous warnings that such an approach would impact the competitiveness of European egg producers.

• 1991 Leghold Traps Regulation bans the use of harmful leghold traps within the EU and prohibits importation of particular furs if the importing state does not prohibit leghold traps or if internationally agreed humane trapping standards are not met. The EU delayed the ban and then chose not to enforce it against the US, Canada or Russia (the three main fur exporting countries).

• 1976 Cosmetics Directive (replaced by the 2009 Cosmetics Regulation) bans the marketing in the EU of cosmetic products containing ingredients that have been tested on animals, and the placing on the market of such products (essentially banning the import of products that don’t meet the European standards). Enforcement of the ban was postponed from 1 January 1998 to 30 June 2000, and then again to 30 June 2002, and finally to 11 September 2004, 11 March 2009 and 11 March 2013 for different parts of the regulation. The postponement was for reasons including concerns about international trade law.

• 2007 Broilers Directive: the European Parliament proposed to regulate and prohibit imports of chicken which did not comply with the standards in this directive, but the final version of the measure contains no such import ban.

The EU has not rectified this chilling effect. The various animal welfare regulations and directives passed by the EU in the 2000s do not, on the whole, address the issue of imports. Neither does the EU show any sign of changing its approach.

Why the Chilling Effect is Unnecessary

EU lawmakers often cite the WTO rules as a reason for failing to enact animal welfare protection measures. However, the case law does not support such an approach.

In the US – Shrimp case, the WTO’s dispute settlement body (DSB) began to give much more deference to environmental concerns over trade liberalisation. The DSB ruled that one of the exceptions to the trade liberalisation requirements, for the ‘conservation of exhaustible natural resources’, could include animals as well as non-living natural resources. Further, the recent EU- Seal Products case has proven beyond doubt that animal welfare is a legitimate exception to the WTO’s trade liberalisation rules if the particular issue is found to be an issue of public morality.

This recent case law proves that carefully constructed, non-discriminatory trade restrictions aimed at protecting animal welfare can be compliant with WTO rules. Thus, the EU need not avoid enacting trade restrictions necessary for animal welfare protection.

Moving Forward

The EU’s focus on bilateral free trade agreements, and its insufficient protection of animal welfare in these agreements, may lead to a new chilling effect. If the EU continues to pursue trade policy that does not seek to remedy its potential negative consequences for animal welfare, European standards for animal welfare will increasingly be undermined by poorly regulated imports. The EU needs to take into account new interpretations of WTO law when enacting animal welfare measures. Further, the European Commission needs to improve its approach to animal welfare in its bilateral trade policy setting.

The animal welfare lobby should continue to push for new animal welfare measures and better enforcement, despite the impact of international trade law. This must go hand in hand with effective animal welfare-protecting trade measures.

(This article was written by Iyan Offor and was originally published in the Eurogroup for Animals' trade blog.)