Judgment of 13 June 2019 -
BVerwG 3 C 28.16ECLI:DE:BVerwG:2019:130619U3C28.16.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 13 June 2019 - 3 C 28.16 - para. 16.
Prohibition of killing male chicks
In light of animal welfare as a state objective, the economic interest in layers with high laying performance is in itself not a reasonable cause within the meaning of section 1 second sentence TierSchG for killing male chicks from these breeding lines. However, if it is foreseeable that alternatives to killing the chicks will be available in the near future and these will burden the hatchery to a significantly smaller degree than rearing the animals, continuation of the previous practice for a transitional period is still based on a reasonable cause within the meaning of this provision.
Sources of law
Basic Law GG, Grundgesetz article 20a Animal Welfare Act TierSchG, Tierschutzgesetz sections 1, 3 no. 2, sections 4, 4a, 17 no.1 Animal Welfare Slaughter Ordinance TierSchlV, Tierschutz-Schlachtverordnung section 2 no.3, section 12 (3) Regulation (EC) No 1099/2009 articles 4 (1), 26
Summary of the facts
The claimant operates a hatchery. He is opposing the prohibition of killing male chicks.
Eggs hatched by the company of the claimant originate from hens from breeding lines geared to a high laying performance. Animals from these breeding lines are not well suited for fattening which is why male chicks from these breeding lines are usually killed in hatcheries shortly after birth, as so-called day-old chicks. In the company of the claimant, approximately 800,000 eggs are hatched every year for the production of layers. Of the male chicks, about 200,000 are killed and about the same number is handed out alive.
In July 2013, the Münster Public Prosecutor's Office discontinued investigation proceedings against the operator of a hatchery for killing male chicks. It was of the opinion that killing the chicks was a punishable offence under section 17 no. 1 of the Animal Welfare Act (TierSchG, Tierschutzgesetz); the accused however, lacked awareness that he was acting unlawfully at the time he committed the offence and this mistake of law was unavoidable (Verbotsirrtum). The competent federal state ministry then had the public order authorities at district level instructed to prohibit the killing of male chicks.
The defendant prohibited the claimant, by means of a regulatory order dated 18 December 2013, while at the same time threatening to impose a penalty payment starting from 1 January 2015, from killing male chicks not suitable for chicken-meat production. The killing breached section 1 second sentence TierSchG; it took place without any reasonable cause within the meaning of that provision. The Minden Administrative Court (Verwaltungsgericht) has repealed the regulatory order in its judgment of 30 January 2015. The Higher Administrative Court (Oberverwaltungsgericht) dismissed the defendant's appeal on points of fact and law by judgment of 20 May 2016 and provided the following reasons:
Contrary to the opinion of the Administrative Court, the general clause concerning animal welfare in conjunction with section 1 second sentence TierSchG was a suitable legal basis for a prohibition; the basic statements concerning the prohibition threshold could be derived sufficiently clearly from the provision through interpretation. A reasonable cause needed to be based on an acceptable human interest and would need to objectively outweigh the interest in the protection of the physical integrity of the animal under the specific circumstances. Based on this assumption, the killing of male chicks did not take place without a reasonable cause. The decisive reason for them being killed was that they cannot be used for the production of eggs and due to the characteristics of their breeding line were not used for meat production. Rearing male chicks was inconsistent with state of the art chicken farming and the economic framework conditions; the effort required would not make economic sense. Male chickens of breeds not intended for meat production (Bruderhähne) and spring chickens were pure niche products and selling them on a larger scale was not realistic. Public authorities have been assuming for decades that keeping male chicks was not economically viable. Alternatives to killing the male chicks were currently not available. The methods to determine the sex inside the egg were not suitable for use under real conditions yet. The performance characteristics of chicks from dual-purpose breeding lines still remained so far behind those of specialised breeding lines that they were not suitable for widespread use. Lastly, it may be that the killing of chicks was increasingly rejected under ethical aspects nowadays. However, there were no indications of a majority consensus in this regard. Furthermore, this was a legal assessment that was not based on the attitude of parts of the population.
Regardless of this, the defendant did not exercise its discretion free from errors. The defendant did not take sufficient account of the burdening effects of the prohibition with the transitional period granted. The claimant cannot be reasonably expected to comply with the prohibition at a point in time when due to the state of development of methods to determine the sex inside the egg there were indications for a legal reassessment of the killing of male chicks with effects for all hatcheries.
10 The defendant's appeal on points of law is unfounded. The contested prohibition order is unlawful and violates the claimant's rights (section 113 (1) first sentence of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The opinion of the Higher Administrative Court that the killing of male chicks did not breach animal welfare law is in its result compatible with federal law. The economic interest in layers with high laying performance is in itself not a reasonable cause within the meaning of section 1 second sentence TierSchG for killing male chicks from these breeding lines. However, if it is foreseeable - as it was at the time that is relevant for this case - that alternatives to killing the chicks will be available in the near future and these will burden the hatchery to a significantly smaller degree than rearing the animals, continuation of the previous practice for a transitional period is still based on a "reasonable cause".
11 The prohibition against killing male chicks that is addressed to the claimant is an administrative act with continuous effect. In accordance with section 137 (2) VwGO, what is relevant for the decision of the Court deciding on the appeal on points of law are the factual findings handed down in the contested judgment. Changes in the law have to be taken into consideration until the decision on the appeal on points of law is issued (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 7 November 2018 - 7 C 18.18 - (...) para. 15 and of 28 January 1988 - 3 C 48.85 - (...)). Therefore, the assessment by the Court deciding on the appeal on points of law has to be based on the Animal Welfare Act as promulgated on 18 May 2006 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1206), last amended by the Act of 17 December 2018 (BGBl. I p. 2586). The relevant legal provisions have not changed compared to the time of the decision of the Higher Administrative Court.
12 1. In accordance with section 1 second sentence TierSchG, no one may cause an animal pain, suffering or harm without reasonable cause. This prohibition also encompasses the killing of male chicks.
13 1.1 EU law does not set out exhaustive rules concerning the killing of chicks. Article 4 (1) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ L 303 p. 1) provides for animals only to be killed after stunning in accordance with the methods set out in Annex I of the Regulation. For chicks with a maximum age of up to 72 hours the Annex also allows maceration (Annex I, Chapter I, Table 1, no. 4, Chapter II no. 2). The Regulation therefore presupposes that killing chicks - including in large numbers - is permitted under EU law. However, it does not prevent the Member States from adhering to or issuing stricter national rules under article 26 of the Regulation for the protection of chicks at the time of killing. It also does not preclude national provisions that prohibit or restrict the killing of the chicks.
14 1.2 Nor are there specific legal provisions concerning the killing of chicks under German law. The Animal Welfare Act does not contain any express provision concerning this issue above and beyond section 1 second sentence TierSchG.
15 The general provisions in Part III of the Animal Welfare Act - "Killing of animals" - do not regulate whether an animal may be killed, but rather how it should be killed (section 4 TierSchG) and/or slaughtered (section 4a TierSchG) (...). The Ordinance on the Protection of Animals in the Context of Slaughtering or Killing and on the Implementation of Council Regulation (EC) No 1099/2009 (TierSchlV, Tierschutz-Schlachtverordnung) of 20 December 2012 (BGBl. I p. 2982) as an ordinance ranks below the Animal Welfare Act. It serves to implement Council Regulation (EC) No 1099/2009 as well as to make use of the reservation for stricter national rules; it only allows the maceration of chicks until a maximum of 60 hours after birth (section 2 no. 3, section 12 (3), Annex 1 no. 3 TierSchlV). The Animal Welfare Slaughter Ordinance therefore presupposes that the Animal Welfare Act permits the killing of animals. Whether this is the case has to be determined by way of interpretation of section (1) second sentence TierSchG.
16 2. The chicks are harmed within the meaning of section 1 second sentence TierSchG by being killed. The Animal Welfare Act protects not only the well-being of the animal but also its life per se (section 1 first sentence TierSchG; Bundestag printed paper (BT-Drs., Bundestagsdrucksache) VI/2559 p. 9). It differs in this respect not only from the predecessor provisions, the Animal Welfare Act of 24 November 1933 (Imperial Law Gazette (RGBl., Reichsgesetzblatt) I p. 987), but also from the legislation of other Member States of the European Union. According to the information provided by the defendant, only the Austrian Animal Welfare Act contains a comparable provision. Livestock is not exempt from the protection of life; the Animal Welfare Act also considers the life of each farm animal to be of value per se.
17 3. The prohibition of section 1 second sentence TierSchG against causing an animal pain, suffering or harm "without reasonable cause" is aimed at balancing the legally protected interests of livestock owners on the one hand with the interests of animal welfare on the other hand (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), judgment of 6 July 1999 - 2 BvF 3/90 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 101, 1 <37>). The purpose of the Animal Welfare Act is to align economic and scientific interests, resulting from the development of economy, science and technology with the ethical requirements in the field of animal welfare (see BT-Drs. VI/2559 p. 9). The "reasonable cause" is the key term for creating this balance (...). Based on this, a reason for causing pain, suffering or harm constitutes a reasonable cause within the meaning of the Animal Welfare Act in any event if it serves a human interest worthy of being protected which in the specific circumstances outweighs the interest in animal welfare (see BT-Drs. 16/9742 p. 4; (...)).
18 3.1 The fact that the behaviour towards the animal is not arbitrary, and is in particular not based on objectionable motives, such as the pleasure of killing or torturing an animal (see BVerwG, judgment of 18 January 2000 - 3 C 12.99 - (...)), is not sufficient for a reasonable cause according to this. Apart from that, what is worthy of being protected, when it comes to livestock, are not just immediate nutritional and similar human needs; the economic interest of animal owners in a use of resources that is as low as possible in order to fulfil these requirements also has to be fundamentally acknowledged. However, such economic interests have to be assessed - like any other human interest worthy of being protected when dealing with animals - against the background of the concerns of animal welfare and may in the individual case be subject to certain limits. They are not reasonable causes within the meaning of section 1 second sentence TierSchG simply because they are economically plausible.
19 The concerns of livestock owners conflict with the concerns of animal welfare in the specific circumstances. The Animal Welfare Act of 24 July 1972 (BGBl. I p. 1277) is based on an ethically oriented animal welfare approach (BT-Drs. VI/2559 p. 9; BVerfG, decision of 20 June 1978 - 1 BvL 14/77 - BVerfGE 48, 376 <389>). The First Act Amending the Animal Welfare Act of 12 August 1986 (BGBl. I p. 1309) expressly based animal welfare in section 1 first sentence TierSchG on the responsibility of human beings for animals as fellow creatures. Thereby, no substantive change compared to the Animal Welfare Act of 24 July 1972 was intended (BT-Drs. 10/5259 p. 39). This supplement was caused, however, by the increasing public awareness for the needs of animal welfare and growing criticism of the practical implementation, among other in the field of factory farming (BT-Drs. 10/3158 p. 16; BT-Drs. 10/5259 p. 32; BT-Drs. 10/2703 p. 13).
20 Including animal welfare in the scope of protection of article 20a of the Basic Law (GG, Grundgesetz) by the Act Amending the Basic Law of 26 July 2002 (BGBl. I, p. 2862) has further strengthened the animal welfare laid down in non-constitutional legislation until then (BT-Drs. 14/8860 p. 3). As a concern at constitutional level, on the one hand, animal welfare has to be taken into consideration in decisions of weighing different interests and may be suitable to justify relegating other concerns of constitutional relevance - such as the limitation of basic rights; however, on the other hand, it does not necessarily prevail against competing concerns of constitutional relevance (BVerfG, decision of 12 October 2010 - 2 BvF 1/07 - BVerfGE 127, 293 <328>). In addition, executive power and jurisprudence only protect the animals under article 20a GG "in accordance with law and justice". It is mainly the task of the legislature to achieve a just balance between animal welfare and conflicting basic rights (BVerwG, judgment of 23 November 2006 - 3 C 30.05 - BVerwGE 127, 183 para. 12). With regard to the high importance accorded to ethical animal welfare by the amendment of the constitution, the intention of including this aspect in the constitution was, however, to strengthen animal welfare and to ensure the effectiveness of provisions protecting animals (BT-Drs. 14/8860 p. 3). This aim has to be taken into consideration when interpreting indefinite legal terms (unbestimmter Rechtsbegriff) that leave room for valuation; the term "reasonable cause" in section 1 second sentence TierSchG is such a legal term (...). Apart from that, animal welfare that is justified on ethical grounds cannot claim priority over legally protected interests of animal owners simply because of its ethical foundation.
21 3.2 Male chicks from breeding lines oriented towards for high laying performance are killed because they are ruled out for egg production and are not very suitable for fattening. The interest of the claimant and other hatcheries in avoiding using resources for rearing these chicks is worthy of being protected. Operation of a hatchery is an activity protected by occupational freedom; the practice of a profession may, however, be regulated by or pursuant to a law (article 12 (1) second sentence GG). Should the Animal Welfare Act forbid the killing of male chicks due to the lack of a reasonable cause within the meaning of section 1 second sentence TierSchG, the practice of the profession would otherwise remain unaffected. The hatching of eggs would continue to be permitted; the hatcher would also still be free to decide whether eggs from egg laying breeding lines, meat production breeding lines or dual purpose breeding lines are hatched. If the hatcher decides to continue hatching eggs from specially high-performance egg laying breeding lines, he would also have to raise the male chicks from these breeding lines that are less suitable for fattening.
22 The weighting of economic interests must not be based on the fact that only the relevant recipient of the prohibition order has to obey the killing prohibition. Killing vertebrates, which means also killing chicks, without any reasonable cause not only is impermissible (section 1 second sentence TierSchG) but also meets the constituent elements of a criminal offence (section 17 no. 1 TierSchG). If the economic interest in layers bred for high laying performance is not a reasonable cause for the killing of male chicks from these breeding lines, they may not be killed in any hatchery in Germany. This does not, however, apply to hatcheries outside Germany. Insofar as German animal welfare legislation limits keeping livestock more extensively than EU law or legislations of other states relevant for competition, the competitive disadvantages resulting from this for hatcheries in Germany are a necessary consequence of the national legal regulations.
23 The weight that can be attributed to the economic interest in killing the male chicks also depends on the alternatives that come into question. Rearing male chicks from egg laying breeding lines would be possible but would be associated with considerable burdens for the hatcheries. These chicks are significantly less suited for fattening than animals from meat production breeding lines, as the Higher Administrative Court determined (printed judgment p. 29). The Higher Administrative Court classified the efforts involved in breeding the male chicks from egg laying breeding lines as senseless from an economic point of view (printed judgment p.30). The same applied at the time of the decision of the Higher Administrative Court to rearing chicks from dual purpose breeding lines, i.e. breeding lines suitable both for the laying of eggs and the production of meat (printed judgment p. 30, 39; see also BT-Drs. 18/7782 p. 2). Already back then, chicks from dual purpose breeding lines probably were better suited for fattening than chicks from pure egg laying breeding lines; but they were also significantly less suitable for the purpose of meat production than animals from meat production breeding lines. The methods to determine the sex inside the egg were still under development at the time of the decision of the Higher Administrative Court but could not be used under real-life conditions yet (printed judgment p. 38). They were therefore not an alternative that was actually available.
24 3.3 The interest in protecting male chicks has to be weighed based on the value the Animal Welfare Act attributes to it. The Animal Welfare Act protects - as has been shown - not only the well-being of the animal but also its life per se. However, this is no absolute guarantee. The concept of the protection of life, as is shown in the explanatory memorandum of the Act, was not meant to contradict each justified and reasonable limitation of life of the animal within the framework of the conservation interests of men (BT-Drs. VI/2559 p. 9). The Animal Welfare Act prohibits neither the slaughtering of animals (see section 4a TierSchG) nor the killing of frail or sick animals (see section 3 no. 2 TierSchG).
25 The fact that the Animal Welfare Act permits the slaughtering of livestock and the animal owner essentially can also determine the time of slaughter independently does not mean that the killing of male chicks would also need to be classified as a normal procedure within the framework of the food industry. There are significant differences between these two cases: Unlike animals for slaughter, male chicks are killed at the earliest possible point in time. Their "uselessness" for the purposes pursued by the hatchery is clear from the outset. The sole purpose of producing both female and male chicks from the breeding lines targeted at a high laying performance is the rearing of layers. Eggs from these breeding lines are hatched with the certainty that not only individual animals but all male chicks and therefore around half of all chicks are of no use for the hatchery operations and are therefore meant to be killed immediately if no customer is found for them. In Germany, in the year 2012 around 45 million male chicks per year were affected by this (printed judgment p. 3). Such a method is in fundamental conflict with animal welfare which is based on ethical principles and including life itself, on which in turn the Animal Welfare Act is based. The life of a male chick from an egg laying breeding line is denied any value in its own right. Unlike an animal for slaughter, the male chick is not killed in order to be used for human needs but rather in order to avoid economic burden for the hatchery. The fact that the chick is alive until its sex was determined does not change this. The sexing of chicks serves the sole purpose of sorting the animals out that are considered to be useless from the outset.
26 3.4 When balancing the opposing interests, animal welfare interests outweigh the economic interest of hatcheries in avoiding subsequent costs for male chicks from egg laying breeding lines. The fact that chicks from egg laying and dual purpose breeding lines are significantly less suitable for fattening than chicks from meat production breeding lines is the result of a breeding practice geared mainly for economic efficiency and production methods based on this; both have become established over the previous decades while relegating animal welfare concerns. However, the systematic killing of male chicks from egg laying breeding lines is not compatible with the basic idea of the Animal Welfare Act to provide for a balancing of animal welfare and human exploitation interests. The protection of life which is based on ethical considerations according to the concept of the Animal Welfare Act is not only relegated for these animals but given up completely. These animals are produced with the certain knowledge that they will immediately be killed again. It is true that even when slaughtering livestock the interest in the life of the animal and the exploitation interest of the animal holder are not balanced; however, the life of an animal for slaughter is not denied any value from the outset. Given that animal welfare is included in the Basic Law as a state objective, according to current ethical values, the killing of male chicks in itself is no longer based on a reasonable cause within the meaning of section 1 second sentence TierSchG (...).
27 It is not relevant in this regard how the legislature would have assessed the killing of chicks at the time of creation of the Animal Welfare Act of 24 July 1972. In the legislative procedure at that time, factory farming of chicks received a lot of attention; the issue of killing male chicks was not addressed by anybody. In its draft act, the Federal Government considered the trend towards factory farming to be an economic given (BT-Drs. VI/2559 p. 9). But the Act did not exempt factory farming from the prohibition against causing pain, suffering or harm to an animal without any reasonable cause. Nor is there any indication that the legislature intended that any economically based relegation of animal welfare concerns in factory farming should be considered to be a reasonable cause. Even if the legislature was meant to have considered the killing of male chicks to be permissible at that time under animal welfare law, this would not conflict with a different legal assessment today. The question as to whether the chicks are killed for a reasonable cause within the meaning of section 1 second sentence TierSchG has to be assessed based on current standards of ethical animal welfare and not based on ethical values when the Animal Welfare Act was created in 1972. Both when supplementing section 1 TierSchG in the year 1986 as well as when introducing animal welfare as a state objective in the year 2002, the legislature assumed that greater importance is attached to animal welfare than in the year 1972; the legislature wanted to take account of this shift in awareness (BT-Drs. 10/3158 p. 16; BT-Drs. 14/8860 p. 3). The interpretation of the term "reasonable cause" also leaves room for this.
28 3.5 Since the term "reasonable cause" in section 1 second sentence TierSchG is aiming at a balance between the legally protected interests of the animal holders and animal welfare interests, the previous practice and the specific concerns of animal holders when changing the mode of operation may not be ignored. The strong specialisation of chicken breeding lines geared either to egg or meat production already started in the 1960's (printed judgment p. 36). Even though a mode of operation based on these breeding results including the killing of male chicks from egg laying breeding lines is not permissible from today's perspective under animal welfare aspects, this practice has been accepted by the veterinary authorities and the legislature for decades; initially this was based on the fact that a low weight was accorded to animal welfare in line with the idea at that time and then later due to a lack of competitive alternatives (see BT-Drs. 18/6663 p. 10). Against this background, hatcheries cannot be expected to shift their previous modus operandi immediately (see BVerfG, decision of 4 May 2012 - 1 BvR 367/12 - BVerfGE 131, 47 <57> with further references). The defendant also based its prohibition order on this. The defendant did not prohibit the killing of male chicks with immediate effect but rather only starting from 1 January 2015. This date was more than a year after the order was issued. The defendant did not impose immediate execution of the order.
29 Deficiencies in the field of execution in the field of animal welfare in principle do not establish a trust of the animal holder in the continuation of its previous behaviour that is worthy of being protected (see BVerwG, decision of 8 November 2016 - 3 B 11.16 - (...) para. 58). The practice of the past decades was, however, not unlawful at that time according to the prevailing opinion. Only the persistent and well-founded criticism related to this practice gave rise to efforts to develop other alternatives to the killing of male chicks and to provide public funding for this development. As far back as the time of the decision of the Higher Administrative Court it was foreseeable according to its findings that it would be possible to determine the sex inside the egg in the near future (printed judgment p. 47 et seq.). An improvement of the possibilities of exploitation of chickens from dual purpose breeding lines also seemed to be possible (printed judgment p. 39). The subsequent development confirmed the assessment made at that time. According to the undisputed findings entered into the proceedings by the Representative of the Interests of the Federation (written statement of 6 March 2019), eggs of layers whose sex was already determined inside the egg using endocrine methods have been on sale since November 2018. Since then, the spectroscopic method for determining the sex inside the egg has been developed so far that there are plans to use it by mid-2019 in a pilot series in a hatchery.
30 In such a situation it is not adequate balancing of interests within the meaning of section 1 second sentence TierSchG to prohibit hatcheries from continuing to kill male chicks without any transitional period that enables them to wait until the possibility of using methods to determine the sex inside the egg can be expected in the foreseeable future and in the meantime also to wait for a potential further development of the dual purpose breeding lines. Without such a transitional period the hatcheries would be forced to enable the raising of male chicks with a great deal of effort in order to then, probably shortly afterwards, establish a method to determine the sex inside the egg or to shift their operations to hatching eggs from improved dual purpose breeding lines. In view of the specific circumstances of the case, the avoidance of such a twofold conversion process is a reasonable cause for the temporary continuation of the previous practice.
31 If it were to be said that there is no reasonable cause for the killing of male chicks regardless of the time needed to convert the processes in the hatcheries, the interests of the animal holders worthy of being protected might not be adequately considered. The killing of chicks without reasonable cause is not only impermissible, as explained, but is a criminal offence (section 17 no. 1 TierSchG). As criminal conduct it would not be covered by the basic right of occupational freedom (see BVerfG, judgment of 28 March 2006 - 1 BvR 1054/01 - BVerfGE 115, 276 <301>). There is no apparent reason for tolerating such criminal conduct for a transitional period. There already has to be a balancing of the interests of the hatcheries in killing male chicks and animal welfare concerns when interpreting the term "reasonable cause" - hence at the level of the constituent elements of the prohibition contained in section 1 second sentence TierSchG. Furthermore, uniform implementation of the Act and a uniform transitional period can only be ensured through the term reasonable cause. If the respective competent veterinary authority had to set a transitional period in its discretion in accordance with legal obligation, the difference in approach of the authorities could lead to significant competitive disadvantages for the recipient of the order - as the present prohibition order shows - and could endanger the existence of the company.
32 The Federal Administrative Court may not set a transitional period itself. In the administrative court proceedings, it only needs to be assessed whether the prohibition order was lawful at the time it was issued. As long as the legislature does not set a deadline, it is the task of the authorities responsible for implementing the Animal Welfare Act to follow up on the further development of the methods for the determination of the sex inside the egg and of dual purpose breeds and - based on the standard of assessment presented - to assess whether a reasonable cause still exists for further continuation of previous practice.