- 10 - As at: 06/01/2021 09:47
- 2 -

Version: 06/01/2021 09:47
Act amending the Animal Welfare Act – ban on the culling of chicks*

1. ------IND- 2021 0013 D-- EN- ------ 20210126 --- --- PROJET

Draft Act

of the Federal Government

Draft Act amending the Animal Welfare Act – ban on the culling of chicks

A. Problem and objective

The Federal Office of Statistics reports that around 45 million ‘female chicks reared for laying’ were hatched in 2019. ‘Female chicks reared for laying’ are female chicks that are used as laying hens after rearing and are therefore predominantly derived from breeding lines that, unlike dual-purpose breeds, are specifically geared towards high laying performance.

In those breeding lines, approximately 45 million male chicks hatch, in addition to 45 million females reared for laying. The producers discard these male chicks for financial reasons, as cockerels do not lay eggs and the cockerels from these breeding lines are not very suitable as broilers due to their poor fattening performance. For this reason, the vast majority of male chicks are currently culled in hatcheries shortly after hatching, usually by gassing with high concentrations of carbon dioxide but also by shredding.

§ 1, sentence 1 of the Animal Welfare Act states that animals are to be protected: ‘The purpose of this Act is to protect the life and welfare of animals out of man’s responsibility for them as fellow living creatures.’ § 1, sentence 2 of the Animal Welfare Act reads: ‘No person may inflict pain, suffering or harm on an animal without reasonable cause.’ It follows from the converse of § 1, sentence 2 that pain, suffering or harm may nevertheless be inflicted on animals only if there is reasonable cause for doing so. In its rulings of 13 June 2019 (BVerwG 3 C 28.16, BVerwG 3 C 29.16), the Federal Administrative Court ruled that in light of the national objective of protecting animal welfare enshrined in the Basic Law (Article 20a of the Basic Law), the financial interest in hens specifically bred for high laying performance does not constitute reasonable cause within the meaning of § 1, sentence 2 of the Animal Welfare Act to cull male chicks from these breeding lines. The Federal Administrative Court held, however, that there is still a reasonable justification for continuing the current practice of culling male chicks for a transitional period if there are soon likely to be alternatives to culling the chicks which place a significantly lesser burden on the hatchery than rearing the animals.

Irrespective of the two rulings and the specific court cases, there has been a political will for years for the poultry industry to stop culling chicks. Research projects on the use of dual-purpose chickens were promoted for this purpose. When breeding dual-purpose chickens, the hen should have sufficient laying performance and the cock should have acceptable fattening and slaughter performance, so that both sexes have a financial value. Research projects, some of which have been publicly funded, have now furthermore succeeded in developing practical methods for sexing chicks even before they hatch. As a result, eggs from which male chicks would hatch can be discarded, eliminating the need to cull the male chicks.

Against this background, in particular the Federal Administrative Court rulings, and in view of the coalition government’s aim to end the culling of chicks as specified in the coalition agreement, chick culling is now to be expressly banned. The ban also covers breeding animals and animals for reproduction. Breeding animals are used to produce parent stock,

which are used to produce utility chicks. According to current scientific knowledge, chicken embryos are not able to feel pain until the seventh day of incubation. From then on, it is possible that pain begins to be felt. Therefore, from the seventh day of incubation onwards, any operation on a chicken egg or termination of incubation carried out either during or after the application of egg sexing techniques and which causes the death of the chicken embryo should be rejected on animal welfare grounds. These actions should now also be banned.

B. Solution

The Act bans introduces a ban on the culling of Gallus gallus chicks in the Animal Welfare Act. The ban also covers breeding animals and animals for reproduction.

It further includes the ban, from the seventh day of incubation onwards, on any operation on a chicken egg or termination of incubation carried out either during or after the application of egg sexing techniques in such a way as to cause the death of the chicken embryo.

However, the two bans will not come into force immediately or at the same time. A staged entry into force is stipulated: the ban on culling chicks will enter into force on 1 January 2022 and the ban on operations on chicken eggs and the termination of incubation will enter into force on 1 January 2024. This will give the industry time to adapt to the new legal framework.

C. Alternatives

Not including both bans, or merely stipulating that there is no reasonable cause to cull chicks and cause the death of chicken embryos, would not achieve the objective of outlawing the culling of chicks or chicken embryos and effectively enforcing compliance with those bans. There are therefore no apparent equally suitable legislative alternatives. The provisions are accompanied by measures aimed at strengthening the breeding and use of dual-purpose breeds.

D. Budget expenditure exclusive of compliance costs

The Act does not give rise to any budget expenditure exclusive of compliance costs.

E. Compliance costs

E.1 Compliance costs for the public

The Act does not give rise to any additional compliance costs for the public.

E.2 Compliance costs for businesses

Businesses will incur annual compliance costs amounting to approximately EUR 147.5 million. Bureaucratic costs due to information disclosure obligations:

None.

E.3 Compliance costs for authorities

Authorities are not expected to see any change in compliance costs.

F. Additional costs

The Act may lead to an increase in the retail price of eggs, as the industry may pass on the costs it incurs to end-consumers.

Draft Act of the Federal Government

Draft Act amending the Animal Welfare Act – ban on the culling of chicks))

Dated ...
Dated 18 June 2021

The German Bundestag has adopted the following Act:


Amendment to the Animal Welfare Act

After § 4b of the Animal Welfare Act, in the version as promulgated on 18 May 2006 (Federal Law Gazette I p. 1206, 1313), last amended by [...], the following § 4c is added:
The Animal Welfare Act, in the version as promulgated on 18 May 2006 (Federal Law Gazette I p. 1206, 1313), last amended by Article 280 of the Regulation of 19 June 2020 (Federal Law Gazette I, p. 1328), is amended as follows:

After § 4b, the following § 4c is inserted:

‘§ 4c

Culling chicks of farmyard fowl of the species Gallus gallus from egg-laying breeding lines shall be banned. The ban shall not apply in the following cases:
It is forbidden to kill chicks of Gallus gallus domestic chickens.

The ban shall not apply in the following cases:

where chick culling


for non-hatching chicks;

for poussin as defined in Article 1(1)(a) of Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat (OJ L 157, 17.6.2008, p. 46), last amended by Commission Regulation (EU) No 519/2013 of 21 February 2013 (OJ L 158, 10.6.2013, p. 74); and
for poussin as defined in Article 1(1)(a) of Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultry meat (OJ L 157, 17.6.2008, p. 46; OJ L 8 of 13.1.2009, p. 33), last amended by Commission Regulation (EU) No 519/2013 (OJ L 158, 10.6.2013, p. 74); and

for chicks

intended for use in experiments on animals; or
intended for use in experiments on animals;

whose tissue or organs are to be used for scientific purposes.’
or whose tissue or organs are to be used for scientific purposes.’

The following paragraph 6a is inserted after § 21(6):

‘(6a) By 31 March 2023, the Federal Ministry shall report to the competent Technical Committee of the German Bundestag on the state of development of procedures and methods for determining sex in chicken eggs before the seventh incubation day.’

Article 2


The Animal Welfare Act, last amended by Article 1 of this Act, is amended as follows:

§ 4c is amended as follows:
To § 4c the following paragraph 3 is added:

The current wording becomes paragraph 1.

The following paragraph 2 is added:

‘(2) From the seventh day of incubation onwards, during or after the application of an egg-sexing technique it shall be prohibited to
‘(3) From the seventh day of incubation onwards, during or after the application of an egg-sexing technique it shall be prohibited to

perform an operation on a chicken egg in such a way as to cause the death of the chicken embryo, or

terminate the incubation process in such a way as to cause the death of the chicken embryo.’

The following point 6a is inserted after § 18(1)(6):
The following point 6a is inserted after § 18(1)(6):

‘6a. performs an operation on the egg or terminates incubation contrary to § 4c(2),’.
‘6a. performs an operation on the egg or terminates incubation contrary to § 4c(3),’.

Article 3

Entry into force

Paragraph 2 notwithstanding, this Act shall enter into force on 1 January 2022.
Paragraph 2 notwithstanding, this Act shall enter into force on 1 January 2022.

Article 2 shall enter into force on 1 January 2024.
Article 2 shall enter into force on 1 January 2024.

Explanatory notes
The rights of the Bundesrat under the constitution are hereby preserved. The Act stipulated above is hereby executed. It shall be published in the Federal Law Gazette.

A. General part
Berlin, 18 June 2021

Objective of and need for the provisions
The Federal President

For 2019, the Federal Office of Statistics reported that around 45 million ‘female chicks reared for laying’ were hatched. ‘Female chicks reared for laying’ are female chicks that are used as laying hens after rearing and are therefore predominantly derived from breeding lines that, unlike dual-purpose breeds, are specifically geared towards high laying performance.
Steinmeier

In those breeding lines, approximately 45 million male chicks hatch in addition to 45 million females reared for laying. As these male chicks become cockerels, which do not lay eggs, they are discarded by producers for financial reasons. The cockerels also have lower fattening performance than broilers. For this reason, the vast majority of male chicks are currently culled in hatcheries shortly after hatching, usually by gassing with high concentrations of carbon dioxide.
The Federal Chancellor

§ 1, sentence 1 of the Animal Welfare Act states that animals are to be protected: ‘The purpose of this Act is to protect the life and welfare of animals out of man’s responsibility for them as fellow living creatures.’ It follows from the converse of § 1, sentence 2 of the Animal Welfare Act that pain, suffering or harm may nevertheless be inflicted on animals if there is reasonable cause for doing so. In its rulings of 13 June 2019 (BVerwG 3 C 29.16, BVerwG 3 C 28.16), the Federal Administrative Court ruled that in light of the national objective of protecting animal welfare enshrined in the Basic Law (Article 20a of the Basic Law), culling male chicks does not constitute reasonable cause within the meaning of § 1, sentence 2 of the Animal Welfare Act by today’s values. The concept of reasonable cause is aimed at balancing the legally protected interests of livestock owners and the interests of animal welfare. Upon weighing the conflicting interests, the Federal Administrative Court found that the interests of animal welfare outweighed the hatcheries’ financial interest in avoiding subsequent costs for male chicks from egg-laying lines. The fact that chicks from egg-laying and dual-purpose lines are considerably less suitable for fattening than those from fattening lines is due to breeding and production methods predominantly geared to profitability. Systematically culling male chicks from egg-laying lines is not compatible with the underlying principles of the Animal Welfare Act, which are to ensure a balance between animal welfare and human interests. According to the Federal Administrative Court, the protection of life founded on ethics according to the notion of the Animal Welfare Act is not just set aside for these animals, it is completely abandoned. They are produced in the full knowledge that they will be immediately be culled (see Federal Administrative Court rulings of 13 June 2019 – 3 C 28/16, 3 C 29/16 –, juris, margin ref. 26).
Dr. Angela Merkel

The Court held that since the concept of reasonable cause in § 1, sentence 2 of the Animal Welfare Act is aimed at striking a balance between the legally protected interests of livestock owners and the interests of animal welfare, previous practice and the specific interests of livestock owners should not be disregarded if methods are to change. In addition, it was likely soon to be possible to determine the sex in the egg and improve the options for using chickens from dual-purpose lines. In that event, the Court found, it would not be an appropriate balance of interests within the meaning of § 1, sentence 2 of the Animal Welfare Act to ban hatcheries from continuing to kill male chicks without a transitional period, which would leave time for the foreseeable development of new egg sexing methods and also any further changes with dual-purpose lines. Without any such transitional period, hatcheries would be forced, at great expense, to first allow male chicks to be reared and then, probably soon after, to set up an egg sexing procedure or convert their holding to hatching eggs from
The Federal Minister for Nutrition and Agriculture

improved dual-purpose lines. In the Court’s opinion, avoiding this double changeover was a reasonable ground under the circumstances for the previous practice to temporarily continue. Denying reasonable cause for culling the male chicks regardless of the time required to convert farms would not take adequate account of livestock owners’ legitimate interests (see Federal Administrative Court rulings of 13 June 2019 – 3 C 28/16, 3 C 29/16 – juris, margin ref. 28-31).

Irrespective of the two rulings and the associated court cases, there has been a political will for years for the poultry industry to stop culling chicks. Research projects on the use of dual-purpose chickens have been promoted. Research projects, some of which have also been publicly funded, have furthermore now succeeded in developing practical methods for sexing chicks even before they hatch. As a result, eggs from which male chicks would hatch can be discarded, doing away with the need to cull them.

According to current scientific knowledge, chicken embryos are not able to feel pain until the seventh day of incubation. From then on, it is possible that pain begins to be felt. Therefore, from the seventh day of incubation onwards, there will be a ban on any operation on a chicken egg carried out either during or after the application of egg sexing techniques in such a way as to cause the death of the chicken embryo, including termination of incubation. A chicken embryo develops in the egg during incubation and hatches after 20 or 21 days. According to current scientific knowledge, chicken embryos are not believed to have the ability to feel pain until the seventh day of incubation. The embryo begins to feel pain from some time after the sixth day of incubation and, according to current knowledge, the embryo’s pain sensation is fully developed as of the 15th day of incubation. For reasons of animal welfare, therefore, not only must the culling of the hatched chick be rejected, but so too must any operations on the chicken egg and any termination of incubation carried out from the seventh day of incubation onwards in such a way as to cause the death of the chicken embryo, which may be able to perceive pain. The further the hatching process has progressed from the seventh day of incubation, the more likely it is that, from an animal welfare point of view, there is no or no significant difference between causing the death of the chicken embryo and culling the hatched chick. The regulatory scope of the amendment thus covers the phase of embryonic development up to the hatching of the chick. The aim in doing so is to prevent a long transitional period creating an incentive to first invest in sexing techniques to be used after the seventh day of incubation.

Main content of the draft

To safeguard the interests of animal welfare, this draft Act introduces a ban on culling chicks into the Animal Welfare Act. The ban also covers breeding animals and animals for reproduction.

It further includes the ban, from the seventh day of incubation onwards, on any operations on a chicken egg or any termination of incubation carried out either during or after the application of egg sexing techniques in such a way as to cause the death of the chicken embryo.

However, the two bans will not come into force immediately or at the same time. A staged entry into force is stipulated: the ban on culling chicks will enter into force on 1 January 2022 and the ban on performing operations on chicken eggs and terminating incubation will enter into force on 1 January 2024. This will give the industry time to adapt to the new legal framework.

Alternatives

Not including both bans, or merely stipulating that there is no reasonable cause to cull chicks and cause the death of chicken embryos, would not achieve the objective of outlawing the culling of chicks or causing the death of chicken embryos and effectively enforcing compliance with those bans. There are therefore no apparent equally suitable legislative alternatives. The provisions are accompanied by measures aimed at strengthening the breeding and use of dual-purpose breeds.

Legislative powers

The federal government’s legislative powers for the amendments in the Act stem from Article 74(1)(20) (animal welfare, the law on food products including animals used in their production) of the Basic Law. The federal government’s legislative powers for the necessary provisions on monetary fines stem from Article 74(1), point 1, case 2 of the Basic Law.

In the current case, a federal regulation is necessary in the national interest within the meaning of Article 72(2) of the Basic Law in order to safeguard legal and financial unity, since the regulation being adopted here must apply equally to all the affected animals used in the production of food products as well as to all farmers in Germany. This will ensure that the affected animals are afforded the same protection throughout the country and all farmers in Germany are subject to the same conditions and requirements for their operations in this respect.

Compatibility with EU law and international treaties

This draft Act is compatible with European Union law and international treaties to which the Federal Republic of Germany is party.

In particular, the draft law is consistent with Council Regulation (EC) No 1099/2009 on the protection of animals at the time of killing, as that regulation governs how animals may be culled, not whether they may be culled. Therefore, the proposed provisions do not fall within Regulation (EC) No 1099/2009.

Consequences of the legislation

Legal and administrative streamlining

No provisions are simplified or rescinded.