Many people who are holders of pets, pet or hobby animals, are probably not yet aware of the fact that their animal kept just once on a list can come to be prohibited animals. The Dutch government is already at an advanced stage to come up with a list where animals stand which may be made, the so-called positive list. All animals that are not on this list are prohibited from then on. Researchers at the University of Wageningen have worked for years on reports leading to the adoption of this list. However, it is questionable whether all this research it has had sufficient attention to the so-called Andibelarrest.
Then on December 7, 2001 the Royal Decree establishing the list of animals that may be kept was made, the Belgian version of our positive list, signed two organizations appealed against this decision before the Belgian Council of State. It was felt that this decision was contrary to the fundamental right of free market in Europe and therefore has a right differences and barriers to trade between the EU member states. The Council of State was clearly in the stomach with this profession. They decided to stay the proceedings and to request further explain some legal rules from the European Court. The Court admittedly does not rule, but it is clear that the views of the Court expressly affect the verdict.
The State Council gladly wish may limit the view of the court as to whether a Member State import and trading of animals, while this restriction in other Member States is legal. In addition, the question was put whether a Member State may restrict the movement of animals on the basis of animal welfare as one also can achieve with legislation which provides less restriction on trade within the EU.
The European Court reached a number of conclusions. One was of the opinion that there are legitimate public interest objectives which are to set a ban on importing, trading and have warrant of animals owned. EU Member States may only take such measures if the same objectives can not be achieved by measures restricting trade between the Member States less, according to the Court.
The Court cites three reasons that would justify a ban. The first is called the protection of animal welfare. The Court recalls that animal welfare is a legitimate object of interest. It refers to a protocol annexed to the Treaty establishing the European Community. In that protocol could include read that in the conduct of policy, the Community and its Member States are fully taken into account the welfare of the animals.
Secondly, the Court mentions that there were no obstacles preventing prohibitions or restrictions as regards the protection of health and life of humans and animals.
Thirdly, the Court points to the fact that there may be species that escape into nature can maintain and can pose an ecological threat. Also on this basis, restrictions may be imposed by Member States.
The above findings of the Court will be further supported by other judgments and jurisprudence.
When the statement is also also indicated the need to examine whether in the preparation and subsequent changes to this list based on criteria that are objective and non-discriminatory. It should also be tested if there is a readily accessible procedure which enables stakeholders that animals still be placed on the list in which the procedure can be completed within a reasonable time. A refusal must be this be justified and moreover there is a procedure in which one can come to a refusal. The refusal can only be based on protection of animal welfare, protecting the health and life of humans, animals and the danger of an ecological threat. Finally, it will be clear that species not included on the list based on objectively justifiable considerations and not go beyond what is necessary.
In Belgium, the judgment established Positive List are soon resolved. If we look at the above point about the protection of animal welfare, then there are quite other ways of controlling it effectively. Husbandry rules whereby justice can be done to the welfare of animals kept for instance is one such option. Advantage of farming regulations is also that enforcers know what the standards are and that is lacking sometimes now. Belgium has now adopted a new positive list. The latest reports will be appealed again against that decision. In the Netherlands we are on the eve of the establishment of such a list. Organizations of holders of animals, trade association DIBEVO and the organization for import and export of animals have major objections to the system used in the creation of this list and they rely on the failure to meet the Andibelarrest. Secretary Dijksma faced with a strong opposition. Thousands of owners of animals do not want to be deprived of their hobby or their animals. But also trade, not only in animals but also feed and animal products, with a turnover of two billion euros and thus accounted for 400 million euros in tax revenue for the state, does not wish that their sector is affected unnecessarily. In addition to the VAT of course, there are the wage taxes and other revenues from this sector where jobs may also be at stake. In addition to the happiness of many animals holders enjoy their animals and the welfare of their animals, there are also financial interests is at stake.