The Italian legal system, like most legal systems around the world, places animals in the category of “movable property”, thereby equating them with res, with material things to which no rights can be attributed.
This legal classification makes animals capable of being the object of rights in rem (such as, for example, the right of ownership) or of contractual dealings (such as, for example, sale and purchase), but does not grant them full dignity and autonomy as regards the holding of rights of their own; moreover, by treating animals on a par with any other material good, it appears at odds not only with the sensibility of modern society concerning the human-animal relationship but also, and above all, with the findings of scientific research, there being by now countless studies recognising animals as “sentient beings”1In particular, the Cambridge Declaration on Consciousness of 7 July 2012 and the Montréal Declaration of _ October 2022 on animal exploitation summarised, on the scientific and philosophical level, the reasons that make it necessary to revise — including at the legislative level — the way animals are regarded, and to move, in every field, towards their recognition as “beings endowed with sentience”. The Cambridge Declaration is available at: https://ali.ong/rivista/etica/la-dichiarazione-di-cambridge-sulla-coscienza/. The Montréal Declaration is available at: https://ali.ong/aggiornamenti/world-animal-day-2022-ali-dichiarazione-di-Montréal-sullo-sfruttamento-animale/.
From a legal standpoint, moreover, the classification of animals as res gives rise to particular difficulties. In the field of private law, this classification entails, for example, the absence of legislative — as opposed to merely judicial — recognition of compensation for so-called non-pecuniary loss arising from the loss of a companion animal but also, in the field of enforcement proceedings, the possibility of proceeding to the seizure of the animal together with the debtor’s other assets where the animal is kept for productive, food-related or commercial purposes; or, in the field of family law, upon the dissolution of the family unit, the possible assignment of the animal to the spouse who is its legal owner without regard to the bond formed with the other partner and any children2Over the years, in response to these legislative gaps, the courts have intervened, in some cases recognising compensation for non-pecuniary loss arising from the loss of a companion animal and taking into account the particular relationship formed between the animal and the family unit when determining the animal’s fate upon the dissolution of the family. The absence of uniform rules nevertheless creates disparities in treatment and legal uncertainty.. Courts have thus often had to provide innovative answers in the absence of a unitary body of rules on the matter.
Although to date none of the European legal systems of Roman-law origin grants animals any form of legal capacity, this awareness has set in motion a process of “de-objectification” of animals and several European states have included the protection of animals among the fundamental values of their Constitutions, while others have begun a process aimed at recognising, within their Civil Codes, the distinction between animals and res.
The recognition of a distinct legal status for animals in the European civil-law tradition
The process of “de-objectification” of animals that has begun within European legal systems has followed two main legislative models: the first has denied the equation of animals with things, while the second has proceeded to the recognition of animals as sentient beings.
The first model was followed by Austria (1988), Germany (1990), Switzerland (2002) and the Netherlands (2011), where codified provisions were introduced to define animals as entities distinct from res (without prejudice to the applicability of the regime governing res under certain conditions), without, however, identifying animals as sentient beings.
The second model was followed, instead, by the Czech Republic (2012), France (2015), Portugal (2017), Belgium (2020) and Spain (2021), which have specified within their Civil Codes the particular nature of animals as sentient beings.
The Czech Republic, with Law No. 89/2012 (the act enacting the new Czech Civil Code), amended the Civil Code by recognising for animals a legal status distinct from that of things. Article 494 indeed recognises the nature of animals as sentient creatures, providing for the application by analogy of the rules applicable to things, only insofar as this is not contrary to their nature as living beings endowed with sentience.
France, with Law No. 2015-177 of 2015, introduced the new Article 515-14 into the Code civil (the French Civil Code), which recognises a specific legal status for animals, irrespective of their species and in view of their quality as sentient beings, to which ontological autonomy is acknowledged. Animals are indeed expressly recognised as sentient beings, while the legal regime applicable to things remains applicable to them, provided that this is compatible with the provisions enacted for their protection.
In Belgium, too, the Civil Code has come to recognise a distinct legal status for animals. It should be noted that the Belgian Constitution assigns competence over the protection of animals to the Regions; thus, from 2015 onwards, the Regions amended the Law of 14 August 1986 on the protection and welfare of animals, adopting ordinances on the matter in order to revise it and put in place different protections on a regional basis. In 2020, moreover, the Belgian Civil Code was also amended with the introduction of Articles 3.38 and 3.39, which recognise the particular nature of animals as sentient beings through the creation of a tertium genus to which the legal regime of things applies subject to the laws protecting animals.
Portugal, with Law No. 8/2017, established a legal status of their own for animals through the reform of the Civil Code, the Code of Civil Procedure and the Criminal Code. Through the introduction of Articles 201B, 201C and 201D, the Portuguese legislature introduced a differentiated legal regime for animals, which must first and foremost be classified as sentient beings endowed with sensibility and, as such, are the object of legal protection by virtue of their particular nature. This protection operates through the Civil Code and special legislation, with the legal regime applicable to things remaining applicable only on a subsidiary basis, provided that this is not incompatible with the nature of animals as sentient beings endowed with sensibility. Consistently with these provisions, amendments were also made to other civil, criminal and procedural provisions. In particular, as regards the Civil Code, Article 1302, in its new wording, provides that animals, like things, may be the object of the right of ownership, but only on the terms regulated by the Civil Code itself and by special legislation, in a formulation that reaffirms their distinction from movable and immovable property. In regulating occupation as a means of acquiring ownership, Articles 1318 and 1323 lay down specific rules where animals are concerned, clarifying which rules are to apply in the case of the finding of lost animals: unless mistreatment is suspected, the animal must be identified and returned to its owner but, in the absence of a claim by the owner, ownership of the animal may be acquired once a year has passed since it was found. The new Article 1305-A, with reference to the exercise of the right of ownership, imposes significant obligations on the owners of animals, enshrining in paragraph 3 the general principle that ownership of an animal does not entitle its owner to inflict pain or suffering upon it, to mistreat it or to cause its death. Article 493 was also introduced, which establishes, among other things, the owner’s right to receive fair compensation for the moral damage suffered as a result of injury to, or the death of, their companion animal. Finally, significant amendments were also made to family law, which now takes into account the presence of companion animals and the interests connected with safeguarding the animal’s welfare.
Lastly, Spain, with the recent Law No. 17/2021, took a decisive step forward in the legal protection of animals, providing in its Preamble that the quality of animals as sentient beings must govern the interpretation of all the rules of the legal system, and making significant amendments to the Civil Code, the Mortgage Law and the Code of Civil Procedure. In particular, the new Article 333 bis of the Código Civil (the Spanish Civil Code) expressly recognises the nature of animals as living beings endowed with sentience, providing that the legal regime applicable to things applies to them only on a residual basis, insofar as it is compatible with their nature or with the provisions intended for their protection. The legislation also encourages the provision of care to injured or abandoned animals and expressly recognises compensation for the moral damage suffered by the owner or cohabitant of an animal whose death or serious physical or psychological injury has been caused. The new law also intervenes in family law, the law of succession, and in matters of occupation, natural fruits, liability for damage and for hidden defects, pledge and mortgage, bringing the relevant provisions into line with the principle of respect for animal welfare.
Further reading:
The legal status of animals in the Italian legal system
As for the Italian legal system, it has already undergone certain reforms in the past — for example, on condominium matters or on the seizability of animals — yet a comprehensive revision of the civil-law framework still appears necessary. The recent introduction into Article 9 of the Constitution of the principle of the “protection of animals”, understood as individual beings and not as species belonging to the broader good of the “environment”, confirms this need. In these terms, the revision of the Civil Code therefore appears an absolute and indispensable priority, also in view of the fundamental interpretative role that the Code itself plays within the Italian legal system.
Animal Law Italia draws the attention of public decision-makers and citizens to the urgency of a reform which, following the example of what has been done in Portugal and Spain, brings the law into line with the particular nature of animals and with the value they hold within human relationships.
Note
- 1In particular, the Cambridge Declaration on Consciousness of 7 July 2012 and the Montréal Declaration of _ October 2022 on animal exploitation summarised, on the scientific and philosophical level, the reasons that make it necessary to revise — including at the legislative level — the way animals are regarded, and to move, in every field, towards their recognition as “beings endowed with sentience”. The Cambridge Declaration is available at: https://ali.ong/rivista/etica/la-dichiarazione-di-cambridge-sulla-coscienza/. The Montréal Declaration is available at: https://ali.ong/aggiornamenti/world-animal-day-2022-ali-dichiarazione-di-Montréal-sullo-sfruttamento-animale/
- 2Over the years, in response to these legislative gaps, the courts have intervened, in some cases recognising compensation for non-pecuniary loss arising from the loss of a companion animal and taking into account the particular relationship formed between the animal and the family unit when determining the animal’s fate upon the dissolution of the family. The absence of uniform rules nevertheless creates disparities in treatment and legal uncertainty.
