1. Animal rights legislation in the European Union: the recognition of animal sentience
Animal welfare legislation evolved in the first quarter of the 19th century with the United Kingdom’s Cruelty to Cattle Act of 1822, also known as the Martin’s Act. This was one of the first attempts to enact animal welfare laws, prohibiting the mistreatment of cows and sheep. Subsequently, the Cruelty to Animals Act of 1835 included dogs in the legislation, also banning bear-baiting and cockfighting. The Cruelty to Animals Act of 1876 was the first document of its kind to officially protect animals used in scientific research from suffering and pain, giving particular protection to dogs, cats and horses[1]. With the United Kingdom’s entry into the European Economic Community in 1973, the issue of animal welfare began to be considered at a European level; in 1974, the Council of Europe (CoE) adopted the first legal text on the protection of animals, requiring that they be rendered unconscious before being slaughtered[2]. Since then, the European Union has established a wide range of laws and regulations on animal welfare. In 1998, following the European Convention for the Protection of Animals kept for Farming Purposes, Council Directive 98/58/EC concerning the protection of animals kept for farming purposes[3] took a step forward in the field of animal welfare, specifying the general rules for the protection of all animal species kept for farming purposes, including food, wool, fur and hides, and including reptiles, amphibians and fish, stating that:
«Member States shall ensure that the owners or keepers take all reasonable steps to ensure the welfare of animals under their care and to ensure that those animals are not caused any unnecessary pain, suffering or injury».
The provisions of Council Directive 98/58/EC reflect the so-called “Five Freedoms”[4]:
- Freedom from hunger, thirst and malnutrition;
- Freedom from environmental discomfort;
- Freedom from disease and injury;
- Freedom to freely express species-specific behavioural characteristics;
- Freedom from fear and stress.
In 2009, the Treaty of Lisbon formally recognised the sentience of animals in Article 13, Title II of the Treaty on the Functioning of the European Union (TFEU):
«When formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage»[5].
The Treaty on the Functioning of the European Union (TFEU) was published in the Official Journal of the European Union in October 2012, representing a milestone in the recognition of animals as sentient beings.
2. The Exclusion of Fish from EU Animal Welfare Legislation
The number of farmed fish has grown considerably since 1990, with production increases across all five continents[6] and the FAO expects further increases in farmed fish production in the near future[7]. The number of fish farmed each year is high and exact figures are particularly difficult to estimate, given that their production is quantified as biomass rather than as a number of individuals. The number of farmed fish currently alive in the world is estimated at between 73 and 180 billion[8] and in 2019, 78–171 billion farmed fish were killed for use as food: a figure that exceeds the combined total of farmed birds and mammals (80 billion) in the same year[9] (a figure that in 2024 surpassed 83 billion).
Given the extremely high number of individual animals involved each year and the fact that fish lead complex lives — they are now considered capable of emotions and recent findings have highlighted their capacity to experience pain and stress[10] — it would be logical to assume that they might be granted rights equal or similar to those of terrestrial animals farmed for food. This picture is, however, far from reality. Even the European Union’s Common Fisheries Policy (CFP), reformed in 2013 and whose primary objective is the transformation of EU aquaculture into a sustainable, high-quality sector, does not list fish welfare among its priorities[11]. Published more than a year after the publication of the TFEU in the Official Journal of the EU, in which animals were declared sentient beings, the CFP did not incorporate the commitments made in the TFEU to take animal welfare into account, specifically by not including fish within this perspective. Indeed, the CFP introduced technical measures such as various rules on fishing gear and methods aimed at better management of fish populations, but with no regard for the welfare of the fish caught.
Although farmed fish are presumably covered by Council Regulation (EC) No 1/2005 on the protection of animals during transport[12], Council Directive 98/58/EC concerning the protection of animals kept for farming purposes, and Council Regulation (EC) No 1099/2009 on the protection of animals at the time of killing[13], these three Council directives do very little to ensure the same welfare standards for farmed fish as for farmed terrestrial animals. Council Regulation (EC) No 1/2005 on welfare during transport establishes in Article 3 that “no person shall transport or cause to be transported animals in conditions likely to cause injury or undue suffering to them,” and Regulation (EC) No 1099/2009 on welfare at the time of killing states in Article 3 that animals shall be “spared any avoidable pain, distress or suffering during their killing and related operations.” Council Regulation (EC) No 1099/2009 also states that further scientific assessment is needed in order to draw up detailed recommendations for the killing of fish. According to recital 11 of the Regulation, since fish are physiologically different from terrestrial vertebrates, farmed fish may be killed with fewer welfare constraints. Overall, in addition to being poorly enforced or implemented, these rules are clearly inadequate and represent minimal protection compared to that commonly afforded to other farmed animals, such as cattle and poultry.
3. Progress on farmed fish welfare in EU regulations
Despite the exclusion of fish from the legal protection afforded to mammals and poultry, over the past two decades there have been several developments aimed at granting these animals greater protections. In 2005, the Council of Europe included a recommendation on the welfare of farmed fish, recommending the use of practices that minimise animal stress and suffering. Similarly, in 2008 the World Organisation for Animal Health (OIE) implemented policies and guidelines on farmed fish welfare in its Aquatic Animal Health Code (AAHC), now available in its 22nd edition since 2019[14].
The European Food Safety Authority (EFSA) is the agency of the European Union that provides independent scientific advice and handles communication on existing and emerging risks associated with the food chain[15]. EFSA’s activities in the area of fish welfare are carried out within the broader context of animal health and welfare by the Scientific Panel on Animal Health and Welfare (AHAW). The AHAW Scientific Panel provides independent scientific advice on animal diseases and welfare, focusing on animals used for food production, including fish[16]. In a 2004 opinion on the welfare of various animal species during transport, the Panel identified a number of hazards contributing to poor welfare in farmed fish and emphasised that they should normally be loaded and unloaded with minimal exposure to air, be provided with adequate levels of oxygen in the water, and be kept at an appropriate stocking density[17]. In 2008, the Panel adopted specific opinions on farmed Atlantic salmon, trout, European eel, European sea bass, sea bream and common carp, identifying the potential welfare risks for each species at different life stages20. In 2009, the opinions were followed by a further 7 species-specific opinions on the welfare aspects of stunning and slaughter methods for farmed bluefin tuna, common carp, European eel, Atlantic salmon, rainbow trout, turbot, sea bass and sea bream[18]. Also in 2009, the Panel adopted an opinion on the general approach to farmed fish welfare, providing criteria regarding fish welfare, sentience and physiology, and addressing all the issues previously outlined concerning the welfare of individual fish species[19]. In this document, EFSA stated that:
“The concept of welfare is the same for all farmed animals, namely mammals, birds and fish, used for human food and protected by the Amsterdam Treaty. Fish welfare, however, has not been studied to the same extent as that of terrestrial farmed mammals and birds, nor have welfare concepts or welfare needs been clearly understood for the various farmed fish species.”
Therefore, while in theory fish welfare is attributed the same importance as that of terrestrial farmed animals, in practice the lesser amount of scientific research on fish welfare is often considered insufficient to guarantee them the same welfare rights as terrestrial animals. These reports led to the publication in 2009 of a statement by the European Commission, which acknowledged that “there is now sufficient scientific evidence indicating that fish are sentient beings and that they are subject to pain and suffering particularly when they are killed”[20]. Although these opinion documents are not legally binding on either the EU or its Member States, they may be used as guidance for the application and enforcement of EU and national legislation.
The Council of Europe (CoE) is an international organisation founded in 1949 to uphold human rights, democracy and the rule of law in Europe, and comprises a total of 46 member states. The CoE’s European Convention for the Protection of Animals kept for Farming Purposes[21] provides principles for the keeping, care and housing of animals, with particular attention to intensive farming systems. A Standing Committee (T-AP) composed of representatives of the parties to the convention has been responsible for drawing up and adopting detailed recommendations concerning various species of farmed animals, including fish. These recommendations are, however, different from those adopted by the CoE Committee of Ministers, in that they become binding six months after their adoption. In 2005, the T-AP issued its Recommendation Concerning Farmed Fish[22], which entered into force in 2006. The document includes an overview of the biological characteristics of fish, before providing general provisions and recommendations on farms and inspections, enclosures, buildings and equipment, management, genotype modifications, modifications to physical appearance such as mutilations, emergency slaughter as in the case of diseased fish, and research.
The EU Commission has among its priorities the promotion of dialogue on animal welfare issues with competent businesses, authorities, civil society and scientists[23]. One of the main priorities of the European Commission is to encourage and strengthen dialogue on animal welfare issues that are relevant at EU level among competent authorities, organisations, businesses, civil society and scientists. To achieve this objective, in 2017 the Commission established, through Decision 2017/C 31/12EN, the expert group ‘Animal Welfare Platform’[24], with the aim of developing and exchanging coordinated actions on animal welfare. The platform assists the Commission in the exchange of actions on animal welfare, focusing on better enforcement of EU rules, the development and use of voluntary commitments, and the promotion of EU animal welfare standards in order to further improve animal welfare and enhance the market value of EU products24. The main objectives of the group are better enforcement of EU animal welfare standards through information exchanges, best practices, direct stakeholder involvement, the development and use of voluntary commitments by businesses to further improve animal welfare, and the promotion of EU animal welfare standards set to enhance the market value of EU products at the global level.
The 2020 report Guidelines on water quality and handling for the welfare of farmed vertebrate fish[25], developed by the EU Animal Welfare Platform, a working group led by Greece, Spain, Italy, Germany, Denmark and Norway, along with international aquaculture experts and civil society, provided an overview of the importance of good water quality and management practices in aquaculture and the basic physiological requirements of fish; the guidelines also identify common threats in aquaculture, such as acute and chronic stressors. In addition, practical guidance and suggested frameworks are provided to reduce the suffering of farmed fish while ensuring highly sustainable production standards.
In January 2024, the European Commission implemented a new reference centre for animal welfare specifically dedicated to farmed fish (EURCAW-Fish). EURCAW-Fish aims to provide technical support and coordinated assistance to Member States by conducting studies and providing scientific and technical expertise, thereby contributing to the dissemination of good animal welfare practices in the EU and ensuring the transfer of knowledge and innovative strategies.
In February 2023, the Council of Europe adopted a package of measures called the ‘Fisheries Policy Package to improve the sustainability and resilience of the fisheries and aquaculture sectors in the EU’. The package includes a communication on the energy transition of the fisheries and aquaculture sector, an action plan to protect and restore marine ecosystems, a communication on the current and future common fisheries policy, and a report on the common organisation of the markets in fishery and aquaculture products[26]. At its 3960th meeting held on 26 June 2023, the Council of Europe examined the draft Council conclusions on the fisheries policy package. The conclusions contain a clear reference to fish welfare aimed at improving the conditions of farmed fish in the European Union. The text reads as follows:
“We consider that improvements in animal welfare are necessary to strengthen the sustainability of the fisheries and aquaculture sectors; we encourage the Commission to provide guidance on improving the welfare of aquatic animals, taking into account practical feasibility in fisheries and aquaculture management, and call on the Commission to further increase scientific knowledge on the welfare of aquatic animals and to take this research into consideration in policy development; we welcome the fact that the Commission has launched a call for the selection and designation of a European Union reference centre for the welfare of aquatic animals and encourage the Commission to include provisions to improve the welfare of farmed fish in its announced proposals to revise EU animal welfare legislation” (§56)[27]
Although the reference to fish welfare in the conclusions represents an important step forward in the introduction of standards to improve the welfare of these animals, subsequent discussions did not lead to a consensus on the document. In fact, all delegations except one, Italy, supported the text in its entirety. Since Italy did not support the text, it was not possible to adopt it as Council Conclusions, an action that required unanimity. Instead, it was adopted as Presidency Conclusions supported by 26 Member States.
In addition to this development compared to last year, during this year’s plenary session of the European Parliament, held on 18 January 2024, a recent update on the consideration of fish welfare was noted. On that occasion, the European Parliament called on the European Commission to incorporate animal welfare considerations for both farmed and wild-caught fish into the upcoming CFP when it is reviewed. The final text reads as follows:
“Calls on the Commission to further increase scientific knowledge on the welfare of aquatic animals and to take such research into account in future policy developments in the fisheries and aquaculture sector; stresses that any future policy developments should also take into account practical feasibility in fisheries and aquaculture management and the potential economic and operational impact on operators and activities, and should also take into account the need to ensure a level playing field at the international level” (§82)[28]
While this does not amend EU law at this stage and animal welfare continues to be excluded from the objectives of the CFP, the above constitutes an important call and, considering the presidency conclusions on the CFP of June 2023, this means that the co-legislators are now calling on the EC to incorporate animal welfare into the next CFP.
4. A Change That Is Slow to Come
The European Commission has been promoting animal welfare for over 40 years with the support of EU Member States, and the EU is known for having one of the most advanced and wide-ranging animal welfare legislations in the world. However, fish have largely remained excluded from the legal protection afforded to farmed mammals and birds. Indeed, while fish welfare has been governed by EU law since the Lisbon Treaty, the protective measures identifying the welfare needs of fish are largely absent from EU law. Important developments are underway aimed at ensuring fish greater legal rights and welfare protection. In order to see a change in the welfare status of fish in the EU, Council Directive 98/58/EC, Council Regulation (EC) No 1/2005 and Council Regulation (EC) No 1099/2009 must be amended to ensure that these animals are granted the same welfare status accorded to farmed land animals.
Notes
[1] Brown C. (2014) Fish intelligence, sentience and ethics. Animal Cognition 18(1). https://doi.org/10.1007/s10071-014-0761-0
[2] Pedersen N.K. (2009) Detailed Discussion of European Animal Welfare Laws 2003 to Present: Explaining the Downturn. Available at: https://www.animallaw.info/article/detailed-discussion-european-animal-welfare-laws-2003-present-explaining-downturn
[3] Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes. Available at: https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:31998L0058
[4] European Commission. Animal Welfare. Available at: https://ec.europa.eu/food/animals/welfare_en
[5] Treaty on the Functioning of the European Union (Consolidated Version). Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:it:PDF
[6] Mood A., Lara E., Boyland N., Brooke P. (2023) Estimating global numbers of farmed fishes killed for food annually from 1990 to 2019. Animal Welfare 32:E12. https://doi.org/10.1017/awf.2023.4
[7] FAO (2020) The State of World Fisheries and Aquaculture 2020 – Sustainability in action. https://doi.org/10.4060/ca9229enGoogle Scholar
[8] Fishcount (2019) Numbers of farmed fish slaughtered each year. Available at: http://fishcount.org.uk/fish-count-estimates-2/numbers-of-farmed-fish-slaughtered-each-year
[9] FAO (2020) FAOSTAT Livestock primary, producing animals slaughtered, all meat animals. Available at: http://fao.org/faostat/en/#data/QCL
[10] The following articles are just some of those in which fish sentience and their capacity to experience pain and suffering have been explored:
- Ari C. and D’Agostino D.P. (2016) Contingency checking and self-directed behaviors in giant manta rays: Do elasmobranchs have self-awareness? Journal of Ethology 34(2):167–174. https://doi.org/10.1007/s10164-016-0462-z
- Chandroo K.P., Duncan I.J.H., Moccia R.D. (2004) Can fish suffer? Perspectives on sentience, pain, fear and stress. Applied Animal Behaviour Science 86:225–250. https://doi.org/10.1016/j.applanim.2004.02.004
- Kittilsen S. (2013. Functional aspects of emotions in fish. Behavioural Processes 100:153–159. https://doi.org/10.1016/j.beproc.2013.09.002
- Kohda M., Hotta T., Takeyama T., Awata S., Tanaka H., Asa J., Jordan A.L. (2019) If a fish can pass the mark test, what are the implications for consciousness and self-awareness testing in animals? PLoS Biology 17(2). https://doi.org/10.1371/journal.pbio.3000021
- Sneddon L., Braithwaite V., Gentle M. (2003) Do fishes have nociceptors? Evidence for the evolution of a vertebrate sensory system. Proceedings of the Royal Society, Biological Sciences 270(1520):1115–1121. https://doi.org/10.1098/rspb.2003.2349
[11] Common fisheries policy (CFP) Available at: https://oceans-and-fisheries.ec.europa.eu/policy/common-fisheries-policy-cfp_en
[12] Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97. Available at: https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:32005R0001&qid=1690789682148
[13] Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing. Available at: https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:32009R1099&qid=1690789959193
[14] World Organisation For Animal Health (2019) Aquatic Animal Health Code. 22nd edition. Available at: https://rr-europe.woah.org/wp-content/uploads/2020/08/oie-aqua-code_2019_en.pdf
[15] European Food Safety Authority (2023) Who we are. Available at: https://www.efsa.europa.eu/it/about/about-efsa
[16] European Food Safety Authority (2023) Animal health and welfare. Available at: https://www.efsa.europa.eu/it/science/scientific-committee-and-panels/ahaw
[17] European Food Safety Authority (2023) Welfare aspects of the main systems of stunning and killing the main commercial species of animals. The EFSA Journal 45:1-29 Available at: https://www.efsa.europa.eu/en/efsajournal/pub/45
[18] European Food Safety Authority (2023) Fish welfare. Available at: https://www.efsa.europa.eu/it/topics/topic/fish-welfare
[19] European Food Safety Authority (2009) General approach to fish welfare and to the concept of sentience in fish. EFSA Journal 7(2):954. https://doi.org/10.2903/j.efsa.2009.954
[20] European Parliament (2009) Answer given by Ms Vassiliou on behalf of the Commission. Available at: https://www.europarl.europa.eu/doceo/document/E-6-2009-1140-ASW_EN.html
[21] Council of Europe. European Convention for the Protection of Animals kept for Farming Purposes (ETS No. 087). Available at: https://www.coe.int/it/web/conventions/full-list?module=treaty-detail&treatynum=087
[22] Standing Committee of the European Convention for the protection of animals kept for farming purposes (2005) Recommendation Concerning Farmed Fish. Available at: https://www.coe.int/t/e/legal_affairs/legal_co-operation/biological_safety_and_use_of_animals/farming/Rec%20fish%20E.asp#TopOfPage
[23] European Commission. EU Platform on Animal Welfare. Available at: https://ec.europa.eu/food/animals/welfare/eu-platform-animal-welfare_en
[24] Commission Decision of 24 January 2017 setting up the Commission expert group ‘Platform on Animal Welfare’ Available at: https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:32017D0131(01)
[25] EU Platform on Animal Welfare (2020) Guidelines on Water Quality and Handling for the Welfare of Farmed Vertebrate Fish. EU Platform on Animal Welfare Own Initiative Group on Fish. Report Number: 11068.2020. Available at: https://food.ec.europa.eu/system/files/2022-07/aw_platform_plat-conc_guide_farmed-fish_en.pdf
[26] European Commission (2023) Fisheries, aquaculture and marine ecosystems: transition to clean energy and ecosystem protection for more sustainability and resilience. Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_828
[27] Council of the European Union (2023) Presidency Conclusions on the Fisheries policy package for a sustainable, resilient and competitive fisheries and aquaculture sector Available at: https://data.consilium.europa.eu/doc/document/ST-11053-2023-INIT/en/pdf
[28] European Parliament (2024) Implementation of the common fisheries policy and future prospects https://www.europarl.europa.eu/doceo/document/TA-9-2024-0045_IT.pdf
