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The welfare of fish in EU legislation: the quest for equal rights recognition

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Lorenzo Fruscella

Advocacy Officer crostacei

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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 UK Cruelty to Cattle Act of 1822, also known as Martin’s Act. This was one of the first attempts to implement animal welfare laws, banning the improper treatment of cows and sheep. Subsequently, the Cruelty to Animals Act of 1835 included dogs in the legislation, and banned bear baiting and cockfighting as well. The 1876 Cruelty to Animal Act was the first of its kind to officially protect animals used in scientific research from suffering and pain, giving particular protection to dogs, cats, and horses[1]. As the United Kingdom entered the European Economic Community in 1973, the issue of animal welfare started being considered at the European level; in 1974, the Council of Europe (CoE) adopted the first legal text on the protection of animals, which required animals to be rendered unconscious before being slaughtered[2]. Since then, the European Union has established a wide range of laws and regulations regarding 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] made a breakthrough in the field of animal welfare by detailing general rules for the defence of all animal species kept for farming purposes, including food, wool, fur, and skin, and including reptiles, amphibians, and fish, stating that:

‘Member States shall make provision to 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’.

Rules in Council Directive 98/58/EC reflect the so-called ‘Five Freedoms’[4]:

  1. Freedom from hunger and thirst;
  2. Freedom from discomfort;
  3. Freedom from pain, injury and disease;
  4. Freedom to express normal behaviour; and
  5. Freedom from fear and distress.

In 2009, the Treaty of Lisbon formally recognised animals to be sentient in Article 13, Title II of the ‘Treaty on the Functioning of the European Union’ (TFEU):

‘In 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

Farmed fish numbers have grown dramatically since 1990, with production increases in all five continents[6], and with the FAO predicting further increases in farmed fish production in the near future[7]. The number of fish farmed every year is vast, and their numbers are especially difficult to estimate considering that their production is quantified as biomass rather than number of individuals. The estimated number of commercially-caught fish is 0.79 to 2.3 trillion on average each year for 2007-2016[8], whilst living farmed fish in the world are estimated at being between 73 and 180 billion[9]. Furthermore, 78–171 billion farmed fishes were killed for food in 2019, which exceeded the combined number of farmed birds and mammals (80 billion) killed for food that year[10].

Given the extremely high number of individual animals involved each year, and the fact that fish have been found to lead complex lives, are now considered to be capable of emotions, and recent discoveries have highlighted their capacity for feeling pain and stress[11], it would be logical to assume that they would be afforded the same or similar rights to land animals raised for food. This is, however, far from the reality. Even the reformed Common Fisheries Policy (CFP) of the European Union enacted in 2013, which has as its main aim the conversion of EU aquaculture into a high-quality, sustainable sector, does not list fish welfare amongst its priorities[12]. Published more than a year after the publication of the TFEU in the official journal of the EU where animals were declared sentient beings, the CFP did not take up the commitments made in the TFEU to pay regard to the welfare of animals by not including fish from a welfare perspective. In fact, technical measures such as miscellaneous rules on fishing gears and methods were implemented aiming at better fish population management, but without regard for the welfare of the fish captured.

Although farmed fish are supposedly covered by Council Regulation (EC) No 1/2005 on the protection of animals during transport[13], Council Directive 98/58/EC concerning the protection of animals kept for farming purposes[14], and Council Regulation (EC) No 1099/2009 on the protection of animals at the time of slaughter[15], these three Council Directive do very little to ensure equal welfare standards for farmed fish and farmed land animals. Council Regulation (EC) No 1/2005 on welfare during transport in Article 3 states that ‘no person shall transport animals or cause animals to be transported in a way likely to cause injury or undue suffering to them’, andRegulation (EC) 1099/2009 on welfare at the time of slaughter in Article 3 states that animals ‘shall be spared any avoidable pain, distress or suffering during their killing and related operations’. EU Council Regulation (EC) No 1099/2009, however, also states that further scientific assessment is required in order to make detailed recommendations for fish slaughter. According to recital 11 of the regulation, since fish are physiologically different from land vertebrates, cultured fish can be killed with fewer welfare constraints. Overall, besides being poorly enforced or implemented, these regulations are clearly insufficient, and represent minimal protection compared with what is commonly granted to other farmed animals, such as bovines and poultry.

3. Progress on fish welfare in EU regulations

3.1 Progress from OIE and EFSA

Despite the exclusion of fish from the legal protection given to farmed mammals and birds, several developments have been underway in the past two decades aimed at affording these animals more rights. In 2005, the Council of Europe included a suggestion on farmed fish welfare, recommending the use of practices that minimise the stress and suffering of the animals. Similarly, in 2008 the World Organization for Animal Health (OIE) implemented policies and guidelines on the welfare of farmed fish in their Aquatic Animal Health Code, now available in its 22nd edition from 2019[16].

The European Food Safety Authority (EFSA) is the agency of the European Union that provides independent scientific advice and communication on existing and emerging risks associated with the food chain[17]. The activities of EFSA in the area of fish welfare are carried out in the more general context of animal health and welfare by the Panel on Animal Health and Welfare (AHAW). The AHAW Panel provides independent scientific advice on animal diseases and animal welfare, focusing on food-producing animals, including fish[18]. In an opinion in 2004 on the welfare of several species of animals during transport, the Panel identified a variety of hazards contributing to poor welfare in fish, and highlighted that fish should normally be loaded and unloaded minimising exposure to air, be provided with appropriate levels of oxygen in the water, and maintained at a suitable stocking density[19]. In 2008, the Panel adopted species-specific opinions on farmed Atlantic salmon, trout, European eel, European seabass, gilthead seabream, and common carp, identifying potential risks for the welfare of each species in 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, European turbot, European seabass, and gilthead seabream[20]. Also in 2009, the Panel adopted an opinion on the general approach to fish welfare, providing an overall approach regarding the welfare, sentience, and physiology of fish, and addressing all the issues outlined in the past on the welfare of individual fish species[21]. There, EFSA claimed that:

‘The concept of welfare is the same for all farm animals, i.e. mammals, birds and fish, used for human food and given protection under the Treaty of Amsterdam. Fish welfare however has not been studied to the same extent as terrestrial farm mammals and birds, neither welfare concepts nor welfare needs have been clearly understood for the various species of farmed fish’.

Thus, while in theory the welfare of fish is afforded as much importance as that of terrestrial farmed animals, in practice the lesser amount of scientific research on fish welfare is often deemed insufficient to afford fish the same welfare rights as terrestrial animals. These reports sparked the publication in 2009 of a declaration 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’[22]. While these opinion papers are not legally compulsory for either the EU or the member states, they can be used as an indication for the application and enforcement of EU and national legislation.

The EU Commission has amongst its priorities the promotion of dialogue on animal welfare issues with competent businesses, authorities, civil society, and scientists[23]. The European Commission has as one of its main priorities to encourage and enhance the dialogue on animal welfare issues that are relevant at EU level among competent authorities, organisations, businesses, civil society, and scientists. To meet this goal, the Commission established through Decision 2017/C 31/12EN in 2017 the expert group ‘Platform on Animal Welfare’[24], aiming to develop and exchange coordinated actions on animal welfare. The EU Platform assists the Commission with the exchange of actions on animal welfare, focusing on better application of EU rules, the elaboration and use of voluntary commitments, and the promotion of EU animal welfare standards in order to further improve animal welfare and valorise the market value of EU products. The main focuses of the group are a better application of EU rules on animal welfare through information exchanges, best practices, the 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 valorise the market value of the products of the EU 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 Platform on Animal Welfare, a working group led by Greece, Spain, Italy, Germany, Denmark, and Norway, plus international aquaculture experts and civil society groups, provided an overview on the importance of good water quality and handling practices in aquaculture, and on the basic physiological requirements of fish in regard to those; the guidelines also identify common threats in aquaculture, such as acute and chronic stressors. Furthermore, practical guidance and suggested frameworks are provided in order to reduce the suffering of cultured fish, whilst still guaranteeing highly sustainable standards of production.

In January 2024, the European Commission implemented a new reference centre for animal welfare specifically dedicated to farmed fish (EURCAW-Fish). EURCAW-Fish is set to provide technical support and coordinated assistance to Member States by carrying out studies and providing scientific and technical expertise, contribute to the dissemination of good practices on animal welfare in the EU, and ensure knowledge transfer 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 common fisheries policy at present and in the future, and a report on the common market organisation for 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 contained a clear reference to fish welfare, aimed at improving the conditions to farmed fish in the European Union. The text reads as follows:

We note that animal welfare improvements are necessary to strengthen the sustainability of the fisheries and aquaculture sectors; we encourage the Commission to provide guidance on improving aquatic animal welfare, taking into account the practical feasibility in the fisheries and aquaculture management, and we call on the Commission to further increase science-based knowledge on animal 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 we 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]

Whilst the reference to fish welfare in the conclusions constitutes an important step forward for the introduction of norms that improve the welfare of these animals, the following discussions did not lead to reaching a consensus on the document. In fact, all delegations but one, Italy, supported the text in its entirety. Because of Italy not supporting the text, it could not be adopted as Council Conclusions, which required unanimity. Instead, it was adopted as Presidency Conclusions supported by 26 Member States.

Besides such developments from last year, a recent update on the consideration of the welfare of fish was noted during this year’s Plenary Session of the European Parliament, which took place on 18 January 2024. There, the European Parliament called on the European Commission to insert animal welfare considerations for both farmed and wild-caught fish in the next CFP, when it will be reviewed. The final text reads as follows:

‘Calls on the Commission to further increase science-based knowledge on the welfare of aquatic animals and to take this research into consideration in future policy developments in fisheries and aquaculture; stresses that, any future policy developments should also take practical feasibility into account in fisheries and aquaculture management and the potential economic and operational impact on operators’ and activities, and should also consider the need to ensure an international level playing field’ (§82)[28]

Although this does not change EU law at this stage, and animal welfare continues to be excluded from the objectives of the CFP, the above is an important call and, considering the Presidency Conclusions on the CFP of June 2023, this means that co-legislators are now actively asking the European Commission to insert animal welfare in the next CFP.

4. A change taking its time to unfold

The European Commission has now been promoting animal welfare for more than 40 years, with the support of EU member states, and the EU is noted as having one of the most advanced and wide-ranging animal welfare legislations worldwide; nonetheless, fish have remained largely excluded from the legal protection given to farmed mammals and birds. In fact, whilst fish welfare is covered under EU law by the Treaty of Lisbon, protection measures identifying the welfare needs of fish are largely absent in EU law. Important developments aimed at granting fish more legal rights and protection concerning their welfare are underway; however, 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 fish are granted the same welfare status as terrestrial farmed 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. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31998L0058

[4] European Commission, Animal Welfare. Available at: https://ec.europa.eu/food/animals/welfare_en

[5] Consolidated version of the Treaty on European Union

https://www.legislation.gov.uk/eut/teu/article/13#:~:text=Article%2013&text=The%20Union%20shall%20have%20an,of%20its%20policies%20and%20actions.

[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. doi:10.1017/awf.2023.4

[7] FAO (2020) The State of World Fisheries and Aquaculture 2020 – Sustainability in action. https://doi.org/10.4060/ca9229en

[8] Fishcount (2019a) Reducing suffering in fisheries. Available at: http://fishcount.org.uk/

[9] Fishcount (2019b) Numbers of farmed fish slaughtered each year. Available at: http://fishcount.org.uk/fish-count-estimates-2/numbers-of-farmed-fish-slaughtered-each-year

[10] FAO 2020b FAOSTAT Livestock primary, producing animals slaughtered, all meat animals. Updated May 25 2020. http://fao.org/faostat/en/#data/QCL

[11] The following articles are only some of those where fish sentience and their capacity for experiencing pain and suffering were 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.
  • 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.
  • Kittilsen S. (2013). Functional aspects of emotions in fish. Behavioural Processes, 100, 153–159.
  • 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).
  • 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.

[12] Common fisheries policy (CFP) https://oceans-and-fisheries.ec.europa.eu/policy/common-fisheries-policy-cfp_en

[13] 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 https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32005R0001

[14] Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31998L0058

[15] Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing. https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32009R1099

[16] World Organisation For Animal Health (2019) Aquatic Animal Health Code. 22nd edition. https://rr-europe.woah.org/wp-content/uploads/2020/08/oie-aqua-code_2019_en.pdf

[17] European Food Safety Authority (2023) About us. https://www.efsa.europa.eu/en/about/about-efsa

[18] European Food Safety Authority (2023) Animal Health and Welfare. https://www.efsa.europa.eu/en/science/scientific-committee-and-panels/ahaw

[19] The EFSA Journal (2004), 45, 1-29, Welfare aspects of the main systems of stunning and killing the main commercial species of animals. https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2004.45

[20] European Food Safety Authority (2023) Fish Welfare. https://www.efsa.europa.eu/en/topics/topic/fish-welfare

[21] European Food Safety Authority (EFSA). (2009). General approach to fish welfare and to the concept of sentience in fish. EFSA Journal7(2), 954. https://doi.org/10.2903/j.efsa.2009.954

[22] European Parliament (2009) Answer given by Ms Vassiliou on behalf of the Commission. https://www.europarl.europa.eu/doceo/document/E-6-2009-1140-ASW_PT.html?redirect

[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 establishing the Commission Expert Group ‘Platform on Animal Welfare’. https://eur-lex.europa.eu/legal-content/EN/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.

[26] European Commission (2023) Fisheries, aquaculture and marine ecosystems: transition to clean energy and ecosystem protection for more sustainability and resilience. 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 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 perspectives. https://www.europarl.europa.eu/doceo/document/TA-9-2024-0045_EN.pdf

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