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.
The only litigation that improves legislation is the one against legislative inaction (strategy 3bis), such as the End the Cage Age lawsuit which demands the Commission to come with a legislative proposal. This is a long shot, in my view, and even if the lawsuit is successful, the legislator can still decide to adopt legislation and not enforce it.
And strategy 2 does not improve EU legislation as such 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 our case is 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. On the one hand, lawsuits can facilitate lobbying because they make clear which open norms can later be enforced in practise and which not. On the other hand, lawsuits can damage lobbying efforts if these lawsuits are frivolous/abusive because lawmakers/politicians will be afraid to adopt open norms because they open the room for such lawsuits.
I am convinced enforcement litigation (strategy 2) will not result in negative welfare impact:
If the lawsuit is succesful: a ban that only existed on paper, now also exists in practise (considerable postive impact)
If the lawsuit is succesful but the legislature decides to lift the ban because it is enforced: the ban has been enforced for some time until it is lifted (still positive impact)
If you do nothing: the ban remains alive on paper but not in practise (zero 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.
Agreed on the 15 years. My good/bad scenario was a bit too black/white indeed.
And good point on export. FYI: p. 10, 30-31 of the Flemish study also explains that it did not tak into acount the exporting option (because lack of data). But the study does mention that they did some interviews with companies and they replied that they were not eager to export outside EU because they did so with the battery cages at the time and this increased competition they considered unfair. Not very scientific of course but this makes is very difficult to argue (in a political) that export should be taken into account.
And I very much like your idea (20 years enriched before total ban) but only if we make sure there are no second generation enriched cages. And I think the EU situation is now showing us this is difficult to achieve.
The EU countries you mention (BE, FR, GE, SL, SL, DK and CZ) are in the good scenario. If you start counting from 2010-2011 (built date of most cages) these countries all impose a transition period that is 15 years or more, which confirms my assumption that they took into account the infrastructure costs of those cages built in 2010-2011. I think the Luxembourg ban entered into force in 2020 (act of 2018) but I believe they did not have any cages anymore by then.
The problem lies with the other EU countries. If they (or the EU) do not ban enriched cages before the moment most companies invest in a second generation of enriched cages (around 2030-2032), I think we are stuck with these cages for at least another 10-15 years. Banning these second generation cages before they are written off (or at least for most part) seems politically/economically impossible.
"Colony cages are still allowed in the Netherlands, and I am not aware of a ban on all cages having been announced there. Did I miss it?"
No, you are correct. But I believe the infrastructure lock-in is the main reason why NL has these colonies instead of a total ban on cages. When Dutch politicians started pushing for a total ban on cages at the time, the minister asked experts to calculate the cost. And they pointed out that it would really hurt all those companies that had just transitioned from battery to enriched and invested in new cages (leading up to the 2012 ban). So the ban was off the table and eventually the political compromise was to allow transition from enriched to colonies, but only in 2021 to soften the blow. I think this again illustrates the problem of this lock in.
However, in reality, I expect furnished cages to be built or renewed gradually, not all at once across the EU in a few years.
My understanding is that the battery-enriched transition did happen all at once in the EU. That's also confirmed here on page 11 (and also here p. 28-33). Battery cage companies waited until 2009-2011 (just before the ban on battery cage entered into force). The only exceptions are the cages that broke/burned down and new cages (in the period 1999-2010) but they are limited. But maybe I underestimate the power of voluntare schemes (such as BCC) nowadays, or the increasing consumer demand for cage-free eggs. This may make it more gradually indeed.
In any event, as a result of this sudden transition in 2009-2011, Flanders provided a transition period for the ban on enriched cages at 25 years starting from 2011 (so 2036). You can see their calculation here on page 36. This was to ensure that almost all enriched cage infrastructure would be written off and companies would not have too much loses. The Netherlands followed a similar reasoning.
So I still think your two-step approach is only a good idea if you are certain the second ban will be implemented within 20 years time. And that's not likely to happen in practise. Look at the EU, where we banned battery in 1999 and now time is running out to ban enriched because of the infrastructure lock-in. Between now and 2032, many companies will change their first generation enrhiced cages, which makes a ban on cages all the less likely to happen soon.
"However, even if furnished cages are fully banned in the EU from 2032 on, which I guess is optimistic, there would still have been 20 years (2012 to 2032) with battery cages fully banned, but furnished cages not banned in the EU."
I think this scenario is accurate but only if the period between the (first) ban on battery cages and the (second) ban on enriched cages is exactly 20 years.
In this two-step approach, any ban on enriched cages will require a transition period that is approx. 20 years starting from the moment the enriched cages were built. This is the average time companies need to write off their cage infrastructure (Belgian and Dutch studies mention 15 to 25 yrs depending on cage type etc.). Countries will not enforce a ban before the writing off period has ended (unless they are willing to compansate companies for these costs which seems unlikely).
Turning to the EU situation; if the ban on enriched cages is adopted before 2032 (ie. 20 years after the 2012 ban), the enriched cages (built in 2009-2011) will just be written off so EU countries could indeed limit the transition period of the ban to 2032.
However, if the ban on enriched cages is adopted after 2032, many of the 'first generation' enriched cages may have been replaced by new enriched cages. This will push countries to provide a new transition period of 20 years starting from the adoption of the ban. This would mean 2052 or later.
So if we advocate the two-step approach, we must be sure that thesecond ban follows within 20 years. And that's something you can never be sure of (as legislators can always postpone these deadlines).
Interesting to see that there is room for animal welfare litigation in Nigeria. I notice that the case you mention was by an environmental NGO. Are there also NGOs focusing on animal welfare litigation (and more cases like this)? Please continue to share legal updates (either here or on Hive, they have a legal section). I am very intersted to learn more!
An element worth considering is whether EU countries are (legally) competent to unilaterally impose import bans for products outside EU. In the EU, certain campaigns for national import bans have stranded once NGOs realised their country could simply not impose it (e.g. Belgian judiciary stopped the Flemish import ban on horse meat from South-America). At first sight, I would think EU law allows national bans for frogs (ChatGPT said no but I disagree).
If EU countries are not competent, it could still be a good lobbying priority at EU level as the ban does not seem to hurt local farmers or producers, but only local economy (mainly importers and restaurants so turnover should be low i think?). As far as i know (correct me if i am wrong) there is no precedent of an EU import ban on animal products that was not inspired/preceeded by national bans? I think the seals products ban was first in other countries (like Belgium)?
It makes me think about a recent Belgian company that does something similar, but not as a gift, and not EA-focused, but more focused on 'local' NGOs. Basicially, you pledge to give a monthly amount, and then they present possible NGOs every month, based on your preferences (or you can browse yourself): https://better-app.org/en#explainer . Some Belgian companies even give their employees such a subscription (instead of cash because the subscription is tax deductble i guess)
It was very grassroots, and mostly GAIA (the biggest aw NGO in BE by far). They collected many signatures in favor of this legal change and, in 2017, they convinced two seasoned politicians to submit a proposal to Senate in order to insert the provision in the Constitution (1 Flemish/center politician and 1 Walloon/right wing politician).
Left wing policitians (Groen/ecolo/ps/Vooruit) came up with a new proposal that would give the provision teeth but found no majority in Senate. In 2024, they finally gave in and fell back to the original provision of 2017.
Lobbying was constant, fierce and personal. GAIA kept the pressure high throughout the entire process (many mailings, volunteer attendance in parliament (day and night), surveys amongst citizens to show support...).
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.
The only litigation that improves legislation is the one against legislative inaction (strategy 3bis), such as the End the Cage Age lawsuit which demands the Commission to come with a legislative proposal. This is a long shot, in my view, and even if the lawsuit is successful, the legislator can still decide to adopt legislation and not enforce it.
And strategy 2 does not improve EU legislation as such 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 our case is 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. On the one hand, lawsuits can facilitate lobbying because they make clear which open norms can later be enforced in practise and which not. On the other hand, lawsuits can damage lobbying efforts if these lawsuits are frivolous/abusive because lawmakers/politicians will be afraid to adopt open norms because they open the room for such lawsuits.
I am convinced enforcement litigation (strategy 2) will not result in 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.
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
Agreed on the 15 years. My good/bad scenario was a bit too black/white indeed.
And good point on export. FYI: p. 10, 30-31 of the Flemish study also explains that it did not tak into acount the exporting option (because lack of data). But the study does mention that they did some interviews with companies and they replied that they were not eager to export outside EU because they did so with the battery cages at the time and this increased competition they considered unfair. Not very scientific of course but this makes is very difficult to argue (in a political) that export should be taken into account.
Impressive overview - thanks for sharing this!
And I very much like your idea (20 years enriched before total ban) but only if we make sure there are no second generation enriched cages. And I think the EU situation is now showing us this is difficult to achieve.
The EU countries you mention (BE, FR, GE, SL, SL, DK and CZ) are in the good scenario. If you start counting from 2010-2011 (built date of most cages) these countries all impose a transition period that is 15 years or more, which confirms my assumption that they took into account the infrastructure costs of those cages built in 2010-2011. I think the Luxembourg ban entered into force in 2020 (act of 2018) but I believe they did not have any cages anymore by then.
The problem lies with the other EU countries. If they (or the EU) do not ban enriched cages before the moment most companies invest in a second generation of enriched cages (around 2030-2032), I think we are stuck with these cages for at least another 10-15 years. Banning these second generation cages before they are written off (or at least for most part) seems politically/economically impossible.
"Colony cages are still allowed in the Netherlands, and I am not aware of a ban on all cages having been announced there. Did I miss it?"
No, you are correct. But I believe the infrastructure lock-in is the main reason why NL has these colonies instead of a total ban on cages. When Dutch politicians started pushing for a total ban on cages at the time, the minister asked experts to calculate the cost. And they pointed out that it would really hurt all those companies that had just transitioned from battery to enriched and invested in new cages (leading up to the 2012 ban). So the ban was off the table and eventually the political compromise was to allow transition from enriched to colonies, but only in 2021 to soften the blow. I think this again illustrates the problem of this lock in.
Thanks for the reply Vasco.
However, in reality, I expect furnished cages to be built or renewed gradually, not all at once across the EU in a few years.
My understanding is that the battery-enriched transition did happen all at once in the EU. That's also confirmed here on page 11 (and also here p. 28-33). Battery cage companies waited until 2009-2011 (just before the ban on battery cage entered into force). The only exceptions are the cages that broke/burned down and new cages (in the period 1999-2010) but they are limited. But maybe I underestimate the power of voluntare schemes (such as BCC) nowadays, or the increasing consumer demand for cage-free eggs. This may make it more gradually indeed.
In any event, as a result of this sudden transition in 2009-2011, Flanders provided a transition period for the ban on enriched cages at 25 years starting from 2011 (so 2036). You can see their calculation here on page 36. This was to ensure that almost all enriched cage infrastructure would be written off and companies would not have too much loses. The Netherlands followed a similar reasoning.
So I still think your two-step approach is only a good idea if you are certain the second ban will be implemented within 20 years time. And that's not likely to happen in practise. Look at the EU, where we banned battery in 1999 and now time is running out to ban enriched because of the infrastructure lock-in. Between now and 2032, many companies will change their first generation enrhiced cages, which makes a ban on cages all the less likely to happen soon.
Very interesting discussion - thank you for this!
"However, even if furnished cages are fully banned in the EU from 2032 on, which I guess is optimistic, there would still have been 20 years (2012 to 2032) with battery cages fully banned, but furnished cages not banned in the EU."
I think this scenario is accurate but only if the period between the (first) ban on battery cages and the (second) ban on enriched cages is exactly 20 years.
In this two-step approach, any ban on enriched cages will require a transition period that is approx. 20 years starting from the moment the enriched cages were built. This is the average time companies need to write off their cage infrastructure (Belgian and Dutch studies mention 15 to 25 yrs depending on cage type etc.). Countries will not enforce a ban before the writing off period has ended (unless they are willing to compansate companies for these costs which seems unlikely).
Turning to the EU situation; if the ban on enriched cages is adopted before 2032 (ie. 20 years after the 2012 ban), the enriched cages (built in 2009-2011) will just be written off so EU countries could indeed limit the transition period of the ban to 2032.
However, if the ban on enriched cages is adopted after 2032, many of the 'first generation' enriched cages may have been replaced by new enriched cages. This will push countries to provide a new transition period of 20 years starting from the adoption of the ban. This would mean 2052 or later.
So if we advocate the two-step approach, we must be sure that thesecond ban follows within 20 years. And that's something you can never be sure of (as legislators can always postpone these deadlines).
Interesting to see that there is room for animal welfare litigation in Nigeria. I notice that the case you mention was by an environmental NGO. Are there also NGOs focusing on animal welfare litigation (and more cases like this)? Please continue to share legal updates (either here or on Hive, they have a legal section). I am very intersted to learn more!
Insightful strategy analysis!
An element worth considering is whether EU countries are (legally) competent to unilaterally impose import bans for products outside EU. In the EU, certain campaigns for national import bans have stranded once NGOs realised their country could simply not impose it (e.g. Belgian judiciary stopped the Flemish import ban on horse meat from South-America). At first sight, I would think EU law allows national bans for frogs (ChatGPT said no but I disagree).
If EU countries are not competent, it could still be a good lobbying priority at EU level as the ban does not seem to hurt local farmers or producers, but only local economy (mainly importers and restaurants so turnover should be low i think?). As far as i know (correct me if i am wrong) there is no precedent of an EU import ban on animal products that was not inspired/preceeded by national bans? I think the seals products ban was first in other countries (like Belgium)?
Very good idea!
It makes me think about a recent Belgian company that does something similar, but not as a gift, and not EA-focused, but more focused on 'local' NGOs. Basicially, you pledge to give a monthly amount, and then they present possible NGOs every month, based on your preferences (or you can browse yourself): https://better-app.org/en#explainer . Some Belgian companies even give their employees such a subscription (instead of cash because the subscription is tax deductble i guess)
It was very grassroots, and mostly GAIA (the biggest aw NGO in BE by far). They collected many signatures in favor of this legal change and, in 2017, they convinced two seasoned politicians to submit a proposal to Senate in order to insert the provision in the Constitution (1 Flemish/center politician and 1 Walloon/right wing politician).
Left wing policitians (Groen/ecolo/ps/Vooruit) came up with a new proposal that would give the provision teeth but found no majority in Senate. In 2024, they finally gave in and fell back to the original provision of 2017.
Lobbying was constant, fierce and personal. GAIA kept the pressure high throughout the entire process (many mailings, volunteer attendance in parliament (day and night), surveys amongst citizens to show support...).