The Dalla parte dei crostacei (“On the crustaceans’ side”) campaign is a project by Animal Law Italia ETS (ALI) born of the desire to raise public awareness and focus the attention of political institutions on the protection of decapod crustaceans (crustaceans belonging to the order Decapoda, which have ten legs1https://ali.ong/rivista/crostacei-animali-non-solo-cibo/), which to date have been afforded no consideration by the legislature, save for piecemeal interventions.
The lack of protection afforded to decapod crustaceans stands in stark contrast to the most recent scientific evidence, which has demonstrated these animals’ capacity to feel pain and to suffer. Studies have therefore highlighted how many practices commonly adopted within the industry prove to be wholly incompatible with respect for the welfare of these animals.
It is for this reason that ALI has set itself the goal of promoting the introduction in Italy of laws to protect decapod crustaceans and, first and foremost, of spreading knowledge about these animals.
The absence of rules at European level
Article 13 of the Treaty on the Functioning of the European Union provides that the European legislature and the legislature of the Member State must pay full regard to the welfare requirements of animals, given that they are sentient beings. The fact that animals are defined as sentient beings by an EU treaty means that legal constructs must be oriented towards protection, and European legislation today represents, in the international legal landscape, one of the most advanced levels of animal welfare protection.
Although the European Food Safety Authority (EFSA) itself has recognised decapod crustaceans as beings with complex behaviour, possessing considerable learning abilities, endowed with a certain level of awareness, capable of feeling pain and therefore deserving of protection2https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2005.292, to date the European Union’s Directive 98/58/EC (protection of animals kept for farming purposes) and the Regulations 1/2005/EC (protection of animals during transport and related operations) and 1099/2009 (protection of animals at the time of killing) do not include decapod crustaceans within their scope, effectively leaving them without any protection3Pages 16-21 of the Report.
The absence of EU legislation to protect these animals constitutes not only harm to the living beings used in the relevant production sector, but also entails a failure to take account of the greater importance now attached by society to the protection of farmed animals.
The regulatory framework in Italy
The gap created by the absence of European rules aimed at protecting decapod crustaceans also has repercussions at the level of the domestic legal order, even though the legislature of the individual Member State could, in compliance with the principle of subsidiarity, adopt rules that take account to varying degrees of the welfare of farmed animals, adapting its own provisions in light of citizens’ growing collective sensitivity. In this regard, the virtuous example of Austria stands out: by means of the 2004 Federal Animal Protection Act, it introduced protections for decapod crustaceans far more detailed than those of other countries4Pages 36-39 of the Report.
In the Italian legal order there is, to date, no national legislation protecting these animals. In Italy, it is common practice to keep decapod crustaceans alive, especially European lobsters and spiny lobsters, in direct contact with ice and (in the case of European lobsters) with their claws bound, only to then immerse them alive in boiling water for the preparation of food; such practices are not expressly regulated by law. In the face of this regulatory vacuum, various measures have been taken at local level to regulate the protection of decapod crustaceans used in the food industry; at the same time, case law has confirmed the punishability of conduct that causes suffering to these animals, because it is incompatible with their nature.
Municipal regulations in Italy: the case of Emilia-Romagna
The practices described above to which decapod crustaceans are subjected are prohibited by certain municipal regulations governing the management and protection of animals used for food purposes. These regulations, however, have effect limited to the municipal territory and are, moreover, inconsistent in their content.
A 2017 study5Liuzzo G., Rossi R., Giacometti F., Mescolini G., Piva S., Serraino A., Analysis of provincial and municipal regulations governing crustacean welfare in Italy, in Italian Journal of Food Safety, 2017, 6, 1 (available at the link https://doi.org/10.4081/ijfs.2017.6228); pages 22-32 of the Report analysed the municipal animal welfare regulations of 110 Italian provincial capitals, in order to assess which ones, and how many, provided specific rules for the protection of crustaceans. Of the 62 animal welfare regulations identified and examined, 46 contained provisions applicable to aquatic animals and crustaceans, and the rules in this respect changed substantially depending on the municipality concerned.
In Emilia-Romagna there are numerous municipal regulations that apply to decapod crustaceans, in municipalities that in some cases lie just a few kilometres apart from one another.
The analysis reveals that the regulations of the Emilia-Romagna Region examined differ as regards:
- the number and type of protected species;
- provisions of greater or lesser detail concerning the keeping of the animals (only some regulations provide specific quantitative and qualitative indications, specifically identifying parameters such as the temperature and the concentration of ammonia in the water or the maximum tolerable stocking density within a tank);
- the presence of detailed procedural guidance (found only in some regulations);
- the presence of financial administrative penalties for failure to comply with the obligations and prohibitions set out in the regulations (the requirements imposed by regulations lacking associated penalties risk remaining, in practice, disregarded).
Almost all of the municipal regulations considered, with the exception of the regulation of the Municipality of Ravenna, prescribe:
- the prohibition on keeping live crustaceans on a bed of ice;
- the prohibition on cooking live crustaceans without their having first been killed;
- the prohibition on permanently keeping crustaceans’ claws bound;
- the obligation to sell crustaceans to the final consumer only after they have been killed by trained personnel.
Although what has just been set out concerns only one Italian region, the conclusion that can readily be drawn is that Italy, as a whole, has rules on the protection and welfare of crustaceans that are inconsistent and based on outdated scientific evidence that diverges from one source to another, and therefore unsuited to guaranteeing the minimum protection of decapod crustaceans within the food industry.
Case law holds that keeping live crustaceans on ice is a criminal offence
Against this fragmented and inconsistent backdrop and the presence of a serious regulatory gap, Italy stands out for an important ruling handed down by the Supreme Court of Cassation6Cass. Pen., Sez. III, No 30177/2017.. The court recognised that conduct carried out to the detriment of European lobsters kept in inadequate conditions within a restaurant constitutes the offence under Article 727, paragraph II of the Criminal Code (art. 727 c.p.), which punishes “anyone who keeps animals in conditions incompatible with their nature, and productive of severe suffering”.
The Court of Cassation therefore declared inadmissible the appeal of the restaurateur who had been convicted at first instance for having kept several live crustaceans in a refrigeration unit and with their claws bound, thus in conditions incompatible with their nature and productive of severe suffering (in effect, the penalty imposed on the restaurateur for the offence under Article 727, paragraph II of the Criminal Code was upheld).
The judgment states that keeping crustaceans at such harsh temperatures, so as to cause “severe suffering”, cannot be regarded as a socially valued custom, given that economic operators can use systems that are more respectful of these animals, albeit more costly. It follows that economic motivation would not, therefore, justify inflicting greater and needless suffering on crustaceans intended for human consumption, because it is well known that there are other ways to keep them.
The ruling in question constitutes an important judicial precedent and points to the possibility of further criminally relevant conduct carried out to the detriment of decapod crustaceans, and to the need for adequate intervention to protect them.
We call for minimum protection standards for decapod crustaceans
Given the recent studies demonstrating the sentience and the capacity of decapod crustaceans to feel pain, it is essential that minimum standards based on up-to-date scientific parameters be introduced at European and national level to protect these animals at the various stages of capture, production and marketing.
The Italian legislature has a duty to act to fill the regulatory gap affecting our country, also by reason of the responsibility incumbent upon it under the amended Article 9 of the Constitution, which places on the State the duty to regulate the ways and forms of animal protection. Only in this way will these animals be able to enjoy the protection to which they are entitled.
Note
- 1https://ali.ong/rivista/crostacei-animali-non-solo-cibo/
- 2https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2005.292
- 3Pages 16-21 of the Report
- 4Pages 36-39 of the Report
- 5Liuzzo G., Rossi R., Giacometti F., Mescolini G., Piva S., Serraino A., Analysis of provincial and municipal regulations governing crustacean welfare in Italy, in Italian Journal of Food Safety, 2017, 6, 1 (available at the link https://doi.org/10.4081/ijfs.2017.6228); pages 22-32 of the Report
- 6Cass. Pen., Sez. III, No 30177/2017.
