19 June 2012
Struan Stevenson (ECR)
Foie gras, which is made of the liver of a duck or goose that has been specially fed and fattened, raises many animal welfare concerns. The mortality rate in force-fed birds varies from 2 % to 4 % in the two-week force-feeding period, compared with around 0.2 % in comparable ducks during normal rearing.
Since 1997, the number of European countries producing foie gras has halved. Only five countries still produce foie gras: Belgium, Bulgaria, France, Hungary and Spain. Some countries, including Denmark, Germany, Norway and Poland, have legislation that specifically prohibits the force-feeding of animals. Others, including Switzerland and the United Kingdom, interpret this practice to be prohibited under general animal protection legislation that provides for animals to be kept in conditions which meet their physiological and ethological needs.
Yet despite the production of foie gras being banned in many European countries, the sale of foie gras is not prohibited. This makes a mockery of existing animal welfare legislation in countries such as the UK, by allowing a product to be sold that is illegal to produce.
In line with Articles 34 and 35 of the TFEU, quantitative restrictions on imports and exports are prohibited between Member States. However, Article 36 states that ‘(t)he provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.’
Could the Commission advise whether Article 36 could be taken into consideration with regard to imports of foie gras?
3 August 2012
Answer given by Mr Dalli on behalf of the Commission
The Commission would refer the Honourable Member to its answer to Written Question E‑3959/2009(1) regarding the current legal framework which covers the production of foie gras in the EU.
Council Directive 98/58/EC(2) on the protection of animals kept for farming purposes allows Member States to apply within their territories stricter provisions for the protection of animals, provided they are in compliance with the general rules of the EU Treaties. The Commission considers that not allowing trade of foie gras between Member States, on animal welfare grounds, would be in breach of Article 34 of the Treaty on the Functioning of the European Union(3) (TFEU). Such quantitative restrictions are prohibited between Member States. The Commission considers that in the case of foie gras the grounds invoked in Article 36 of TFEU to prohibit or restrict the marketing between Member States cannot be applied, since foie gras production is covered by Directive 98/58/EC concerning the protection of animals kept for farming purposes(4). The European Court of Justice has held in its judgment in the case Hedley Lomas (Case C‑5/94) that recourse to Article 36 is no longer possible where [Union] law has already provided for harmonisation (par.18).
(2) OJ L 221, 8.8.1998, p. 23.
(3) OJ C 83, 30.3.2010, p. 47.
(4) This directive aims at giving effect within Union legislation to the European Convention for the Protection of Animals kept for Farming Purposes of 1976 (‘the Convention’). The recommendation concerning domestic geese and their crossbreeds (‘the recommendation’) covers the production of foie gras from these animals; it was adopted in 1999 with the support of the then Community.