At the instigation of the liberals and radical left, the Spanish Parliament has amended the legislation which criminalises sexual intercourse with animals. The ambiguous new text provides that such sexual acts are only criminal if the animal sustains physical injuries, but it does not condemn the act itself.
Whilst the previous text criminalised the sexual exploitation of animals in the broadest sense, this amendment, which focuses specifically on physical injuries, is a cause of concern for animal welfare associations, who see it as a relaxation of the legislation: how can the perpetrator be punished if it is impossible to determine whether or not the animal has been physically injured?
The Spanish Government, for its part, is being ambiguous, asserting that all sexual acts with animals will be punished but nevertheless creating a ‘legal vagueness’ which is not effectively addressed by the relevant European laws. While the Commission has laid down rules on animal welfare, including those which reflect the so-called ‘Five Freedoms’, none of these rules explicitly mention sexual acts committed against animals.
1. Does EU animal welfare legislation reflecting the ‘Five Freedoms’ protect animals against sexual abuse?
2. Does the Commission plan on amending its animal welfare legislation in order to prevent Member States from relaxing their animal protection?
A: Ms Kyriakides on behalf of the European Commission
1. The Commission condemns any form of cruelty towards animals inspired by the words of
the Treaty on the Functioning of the European Union (TFEU) where animals are recognised
as sentient beings (1). Deeply regrettable as they are, such acts as described remain solely under
the competence of the Member States, as they cannot be said to affect the functioning of the
internal market and therefore interfere with EU competences.
2. Article 13 TFEU requires the EU to take into account welfare requirements of animals
when formulating and implementing specific EU policies. Therefore, Article 13 of the TFEU
does not provide a legal basis permitting to address all animal welfare issues, by the
Commission, as the Commission can only act within the limits of the competences conferred
to it by the Treaties and therefore is not empowered to propose rules addressing sexual abuses
against animals such as those covered by the Spanish law at issue. Please also note that the
EU competence to approximate criminal offences and sanctions is limited to serious crimes
with a cross-border dimension and to areas that have been subject to harmonisation measures,
where this proves essential to ensure the effective implementation of a EU policy (Article 83
TFEU).
(1) Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C202/1 (TFEU).
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