By Jessica Lawrence, PhD student, VU University Amsterdam
In an interesting
judgment in Zuchtvieh-Transport,
the CJEU has ruled that Regulation 1/2005 on the
protection of animals during transport applies outside of EU
borders to transport taking place in third states, if that transport began on
EU territory. This is a novel ruling that is expected to have important
positive impacts on animal welfare. However, it can also be seen as an example
of the CJEU’s tendency in recent years to read the EU’s jurisdiction
expansively, stretching traditional international law notions of ‘territorial
jurisdiction’ to permit the regulation of conduct taking place in third states.
Facts
and Judgment
The
case at hand concerns the refusal of Stadt Kempten, a municipality in Bavaria
(Germany), to issue an export permit to animal transport company
Zuchtvieh-Export. In 2012, Zuchtvieh-Export planned to transport 62 cattle from
Kempten to Andijan (Uzbekistan), a journey of some 7000 km. The trip would take
approximately 9 days, during which time only two 24-hour long rest stops were
planned. During these rest stops, the cattle would be fed and watered, but not
unloaded. Stadt Kempten refused customs clearance for the cattle because this
schedule was not in accordance with the provisions of Regulation 1/2005, which
sets EU standards for animal welfare during transport.
Zuchtvieh-Export objected to this decision, and filed a claim at the Bayerischer Verwaltungsgerichtshof (Higher
Administrative Court, Bavaria). During its proceedings, that court asked the
CJEU for a preliminary ruling on the question whether, with respect to animal
transport involving a long journey that begins in the EU but ends far outside
of its borders, Regulation 1/2005 applies only to the portion of the transport
taking place within the EU, or also to those parts of the transport taking
place outside of EU territory.
The CJEU came down firmly on the side of extraterritorial application,
stating unambiguously that Regulation 1/2005 “does not
subject the transport of animals with a point of departure within the territory
of the European Union and a destination in a third country to any particular
approval scheme, different from that applicable to transport taking place
within the European Union” (para. 47). The only nod the Court
makes to the limits of EU authority is the following:
“Should
it nevertheless be the case that the law or administrative practice of a third
country through which the transport will transit verifiably and definitely
precludes full compliance with the technical rules of [Regulation 1/2005], the
margin of discretion conferred on the competent authority of the place of
departure empowers it to accept realistic planning for transport which, in the
light inter alia of the means of transport used and the journey arrangements
made, indicates that the planned transport will safeguard the welfare of the
animals at a level equivalent to those technical rules.” (para. 54)
In finding that Regulation 1/2005 also applies to those parts of animal
transport taking place outside of the EU, the Court went against the opinion of Advocate General Bot. The AG was indeed of
the opinion that the scope of the Regulation was limited to the EU, and that
applying it to transport outside of EU borders would essentially deputize the
authorities of other countries, requiring them to “check to ensure compliance
with the rules laid down by the regulation” (AG’s opinion, para. 54). As
Advocate General Bot pointed out, this would be inconsistent with the rules
regarding the transport of animals into the EU, according
to which transit companies must meet EU animal welfare standards only once they
enter EU territory (AG’s opinion, para. 82).
Comment
It is particularly interesting to see Zuchtvieh in
light of the Court’s other recent case law on the extraterritorial application
of EU rules. Traditionally speaking, international law frowns upon
extraterritorial regulation, instead deferring to state sovereignty and its
corollary, the principle of non-interference in the affairs of other states.
Extraterritorial rules are thus only permissible where there is a solid
jurisdictional reason for enacting them (for example, because the actors
involved are nationals, or the behaviour abroad has domestic territorial
effects). In recent years, however, the CJEU has seemed quite willing to use
the ambiguity inherent in these jurisdictional terms to permit the application
of EU rules that have legislative effects in third states. It has justified the
application of such rules outside its borders using what Joanne Scott has helpfully termed “territorial
extension”: the practice of using a (potentially quite limited) territorial
connection with the EU to justify the regulation of conduct taking place in
third states.
In the Air Transport Association case,
for example, an association of American air transport companies challenged the
EU’s decision to apply its carbon emissions trading scheme to emissions by
non-EU planes that took place outside European territory, if those flights
landed in the EU. The CJEU found that this was permissible, and should not be
seen as violating the prohibition of extraterritorial regulation under
customary international law. (ATA para. 157).
In the Court’s view, the emissions trading scheme was not ‘extraterritorial’,
because it was applied only at airports within EU jurisdiction—regardless of
any effects on extraterritorial behaviour. For other examples of broad readings
of regulatory jurisdiction by the CJEU, one might look to earlier cases such as Minin, Poulsen,
and Ebony Maritime.
Similarly, in Zuchtvieh, the CJEU
found that there was no extraterritorial regulation because the permit for
transporting the animals in question was issued within the EU. While Advocate
General Bot expressed his concern regarding the effects such an interpretation
would have on the conduct of transporters and customs officials in third
states, the CJEU clearly did not find these issues relevant to its determination.
The Zuchtvieh ruling is expected
to have positive effects on animal welfare, improving conditions for the
millions of animals transported from the EU to third states every year. In
addition to these concrete effects, however, the judgment also demonstrates the
increasing tendency of the CJEU to expand the permissible reach of EU
legislation to conduct taking place on third state territory.
It remains to be seen whether this trend will continue, and at what
point the CJEU will consider that the extraterritorial reach of EU law has
reached its limit. One may indeed question the impact of this case on the
so-called ‘external dimension’ of EU law, which is one of the key concerns
nowadays for EU policy-makers. Is the EU entitled to export its rules/values/fundamental
rights standards to other countries? At what point does ‘territorial extension’
become an illegal or illegitimate exercise of EU authority? EU ‘territorial
extension’ definitely encounters quite some resistance from the international
community. Despite the CJEU’s approval of the emissions trading scheme in Air Transport Association, for example, international
backlash against the rule was so strong that the EU agreed to suspend its
operation so long as international negotiations on a more global rule were
underway. Although Zuchtvieh has thus
far not generated a similar protest, it does change the standard international
legal conversation about jurisdiction, pushing an expanded understanding of who
can and should regulate the behaviour of cross-border economic activities.
Originally published on EU LAW BLOG
Barnard & Peers: chapter 24
Photo credit: www.ciwf.org.uk
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