22 november 2024
The European Commission has recently initiated a study on the necessity, added value, and feasibility of an EU-wide positive list, which would determine which animals can legally be kept as pets within the EU in the future. This study aims to gather data and insights from stakeholders about the possibilities and impact of such a European positive list.
For those unfamiliar with the concept, a positive list is a compiled list of animal species permitted as pets under the “no, unless” principle. Only animals explicitly included on this list may be kept legally, while all others are automatically prohibited. However, the EU’s initiative for such a list is not without significant challenges.
Lack of Transparency
Although the study is available online, key stakeholders have not been actively informed. This lack of transparency regarding who has been made aware of the study raises serious questions about the representativeness and legitimacy of the process. Consulting only a limited group of stakeholders excludes crucial perspectives —such as those of pet owners, breed associations, businesses, and advocacy groups— that could provide valuable insights. This risk of one-sided input could lead to faulty or incomplete conclusions, significantly undermining the study’s representativeness.
Furthermore, the flawed evaluation criteria in existing national legislation, which is already the subject of legal disputes, add to concerns that an EU-wide positive list could become an equally flawed and ill-conceived instrument. Without broad consultation, this study risks resulting in poorly thought-out regulations that harm the rights and interests of European citizens and businesses while introducing unnecessary and imbalanced laws.
Arbitrary and inconsistently applied criteria
Another significant objection to the introduction of a positive list is the risk of arbitrary application of criteria concerning animal welfare and safety. This issue is evident in the recent huis- en hobbydierenlijst (formerly: Positive List), which has shown numerous inconsistencies. Using an overly simplistic evaluation model, based largely on generalizations and public opinion, has led to certain species being unjustly prohibited while others are allowed without clear justification. In other words, many decisions on these lists appear arbitrary and lack a solid scientific basis, undermining the credibility of the process.
The in- or exclusion of species without robust scientific justification has resulted in a confusing and impractical policy, leading to legal disputes and uncertainty for owners. It raises serious questions about the scientific integrity and reliability of this approach.
The question remains whether the EU can develop a sound and consistent evaluation model, given that previous attempts in member states have evidently failed.
Legal Concerns
The legal concerns surrounding the positive list go beyond arbitrary application or inconsistencies. They touch on fundamental principles of European law, such as the need to justify restrictions on the free movement of goods and the principle of proportionality, which requires that only the least restrictive measures be taken to achieve a goal. Without clear justification for the necessity and thorough investigation into less restrictive alternatives, there is a risk that an EU positive list may prove not only ineffective but legally vulnerable as well.
Necessity and the free movement of goods
One of the fundamental rights within the European Union is the free movement of goods, as established in Articles 28 and 29 of the Treaty on the Functioning of the European Union (TFEU). This right ensures that products, including animals, can move freely within the EU unless compelling reasons to impose restrictions exist. When considering any restriction, it must be well-founded and justified. Moreover, such restrictions may only be introduced under specific circumstances, such as protecting public health, public order or the environment.
The Court of Justice of the European Union (CJEU) has repeatedly ruled that measures restricting the free movement of goods are only justified if they are appropriate, necessary and only if no less restrictive alternatives are available. This was affirmed in the Cassis de Dijon case (Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein), which established the principle of mutual recognition. The Court stated that measures restricting the free movement of goods are permissible only if they are necessary for overriding reasons of public interest and that no less restrictive measures would be available to achieve the same goal.
In the case of an EU positive list, there is no clearly substantiated necessity to justify restricting the free movement of certain animals. Without this justification, a positive list could even be seen as an unjustified trade barrier. The European treaties require that any restriction on free movement must be carefully and thoroughly substantiated—something that has not been established for the positive list.
Proportionality and the least restrictive measure
Another important principle in European law is the principle of proportionality. This principle states that measures may not go further than necessary to achieve the intended goal. In other words, if a particular goal, such as ensuring animal welfare, can be achieved through less restrictive means than an outright ban on certain species, that option must be considered.
However, in the case of the positive list, there is no evidence that the least restrictive measure has been considered or that less restrictive alternatives have been explored. For example, regulations on animal care and certification could be effective tools for achieving animal welfare without resorting to direct restrictions on the keeping of certain species. By implementing a blanket ban on specific animals without examining less restrictive alternatives, the principle of proportionality is being ignored.
Animal husbandry guidelines and certification: A neglected alternative
Unlike blanket bans, this alternative prioritizes welfare while avoiding the arbitrariness and disproportionate restrictions associated with current positive lists. Many owners of non-conventional pets possess in-depth knowledge of their animals’ needs and often make significant investments to meet their specific requirements. Prohibitions disregard the ability of many owners to care for their animals responsibly and unfairly treats all owners as if they were the same.
Imposing responsible and ethical animal ownership is a superior alternative to the positive list. Instead of restrictive lists that categorically prohibit species, this approach offers a more effective and fair policy. Through education, animal care guidelines, and, where necessary, certification for owners, authorities can ensure that animal welfare and safety are genuinely safeguarded while preserving the rights and freedoms of responsible owners.
Moreover, this policy would also benefit the welfare of species that are already permitted and are far more numerous in our society, such as dogs, cats, and rabbits. This is the group where the majority of unnecessary suffering occurs, often due to a lack of knowledge and enforcement regarding proper care and needs. Also, when we look at the aspect of safety, most incidents occur with animals that are permitted, such as dogs, while there are virtually no documented cases of injury caused by unusual or exotic pets.
Misleading (public) representation
The negative portrayal of non-conventional pets in the media, often driven by activist organizations, has contributed to a distorted perception of what responsible pet ownership truly entails. Many of the excesses shown represent only a small part of reality and fail to acknowledge the dedication of owners who care for their animals responsibly.
As a result, these responsible owners, who often possess deep knowledge and experience, are unjustly stigmatized. Many of them meet strict criteria for the welfare of their animals and invest significant time and resources in their care. Nevertheless, these positive experiences and examples are usually left out of the narrative, leading to distorted public opinion and unnecessary criminalization.
A nuanced and fact-based debate is therefore paramount to accurately reflect the reality of pet ownership, which is critical to prevent responsibly kept animals from being unjustly banned while the real welfare issues concerning more common pets remain unaddressed.
Conclusion
The study on the EU-wide positive list for pets raises serious concerns due to a lack of transparency, inconsistency with existing legislation and arbitrary criteria. One-sided and negative representation in the media further contribute to a misunderstanding of responsible pet ownership, leading to unjustly stigmatizing and ineffective policies.
A positive list does not appear to be an effective solution for increasing animal welfare and risks unnecessarily criminalisation of responsible pet owners. Instead of a restrictive approach that categorically excludes species, focus should be on responsible and ethical pet ownership, supported by education, animal care regulations and certification. This would ensure that all stakeholders—animals, owners, and society as a whole—are protected and supported in a balanced manner.
Policies that prioritize owners and their knowledge and dedication provide a more balanced approach, safeguard animal welfare without unnecessarily restricting the rights and freedoms of responsible and experienced owners.