Overview of the legal situation in the EU

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At EU level, the principles of the Directive on the Protection of Animals kept for Farming Purposes apply, according to which they must be kept in accordance with their physiological and ethological needs (1). According to Article 3, the welfare of the animals must be ensured and unnecessary pain, suffering or harm must be prevented. The EU Directive also stipulates in the Annex under No. 7 that the "freedom of movement, having regard to its species" must not be restricted in such a way that the animals have to experience unnecessary suffering or harm.

In the case of permanent or regular tethering, the space must be designed in such a way that it is appropriate to the physiological and ethological needs of the animals, based on scientific findings (2). Numerous scientific studies prove circumstances in tethering that are contrary to animal welfare. This form of husbandry therefore contradicts European agreements.

The member states of the Council of Europe have signed the European Convention for the Protection of Animals kept for Farming Purposes, which came into force in 1978 (3). According to this convention, animals must be housed according to their physiological and ethological needs (4). The need to move must not be restricted to such an extent that it causes avoidable suffering or harm. In the case of permanent or regular confinement, the animals must be offered sufficient space to live out their physiological and ethological needs (5). Thus, the agreement does not explicitly prohibit tethering. It contradicts the other requirements, such as the need for exercise, which is severely restricted in this husbandry. Tethering cannot exist without negatively affecting movement and causing suffering.

The European Regulation on organic production prohibits the permanent tethering of animals. However, for smaller farms with a maximum of 50 cattle, an exception to the ban applies if the animals cannot be kept in a group. In this case, the animals must be granted access to pasture during the grazing period and outdoor exercise (free range) at least twice a week if pasture is not available (6).

The keeping of calves in tethering is prohibited throughout Europe. However, there are exceptions for temporary tethering. Calves may be tethered for a maximum of one hour during watering (7).

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Overview of the legal situation in Germany

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In Germany, cattle husbandry is not defined specifically in law and tethering is therefore not explicitly named. Only the keeping of calves (cattle up to six months of age) is regulated in the German Animal Welfare-Farm Animal Husbandry Ordinance. In it, § 5 Sentence 1 No. 3 prohibits the tethering of calves. Nevertheless, calves may also be tethered for a maximum of one hour during watering (8).

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The general requirements for animal husbandry in § 2 of the German Animal Welfare Act apply to all cattle. According to No. 1 of the paragraph, the animals are to be fed, cared for and housed in accordance with their species and their needs. The basic needs such as resting, grooming and social behavior are thus subject to extensive protection. The only exception is "movement appropriate to the species". § 2 Section 2 No. 2 allows animals to be restricted in their movement up to a limit of pain and suffering. Hirt et al. (2023) estimate this restriction of locomotion as existential to enable economic animal husbandry (9). The German Animal Welfare Act thus legitimizes a strong restriction of animal behavior.

Cattle farming and especially tethering do not meet the requirements of either point No. 1 or point No. 2 of the above-mentioned paragraph. Social behavior typical for the species, resting or exploring the environment can almost not be lived out. Likewise, the species-typical search for food and self-grooming are severely restricted. The restricted range of movement of one step forward or backward leads to claw problems and changes in the joints. Consequently, the animals suffer from pain.

Permanent tethering suppresses or represses the basic needs of cattle, which is a violation of § 2 No. 1 of German Animal Welfare Act (10). The recently published legal opinion "Deficits in dairy cow husbandry under animal welfare law", commissioned by Greenpeace, concludes that both permanent and seasonal tethering are not compatible with § 2 of the German Animal Welfare Act (11).

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Tethering is already prohibited for calves to prevent suffering. It would therefore only be proportionate to impose such a ban on older cattle as well. The suffering inflicted on cattle by the farming method is decisive for classifying tethering as unlawful (12).

The findings of the numerous scientific papers that exist on the subject could be used in amendments to the law. In their expert opinion on the reform of the German animal protection law ("Reform des Tierschutzrechts"), the authors Bülte, Felde and Maisack established that animal welfare is violated, among other things, because of the violation of § 2 No. 2 of German Animal Welfare Act on species-appropriate movement (13). The husbandry systems would have to be adapted to the behavior of the animals and not vice versa. For this reason, a ban on at least permanent tethering would have to be included in a revision of the German Animal Welfare Act.

So far, there is no concrete legal basis that directly addresses tethering. Nevertheless, there are legal rulings based on the current German Animal Welfare Act. Read more about this in the chronology on tethering in Germany.

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Criminal relevance

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Section 17 of the German Animal Welfare Act is relevant in the context of animal protection criminal proceedings. This applies when vertebrates are subjected to "prolonged or repetitive significant pain or suffering". Johanna Hahn, a legal scholar at the University of Leipzig, and Ariane Kari, a veterinary public health specialist, criticize the fact that "criminally relevant suffering" is often not prosecuted in farm animals (14). According to Hahn and Kari, considerable suffering plays just as important a role in the evaluation of husbandry as pain.

Therefore, there is the question of whether tethering causes longer lasting significant suffering (in the sense of § 17 No. 2b German Animal Welfare Act) to the animals, which is relevant under criminal law. According to the authors, suffering is often not sufficiently considered and examined in the context of criminal proceedings, since scientific findings are usually not taken into account. Therefore, in addition to generating these findings, it seems increasingly important to bring them into the discourse. Frequently, investigations are not initiated because the initial suspicion of animal cruelty is already denied and thus "longer lasting significant suffering of animals is obviously misjudged" (15).

In order to prove suffering, i.e. impairment of animal welfare, experts are usually required. Often, the assessment is based on Tschanz's welfare concept, which is a further development of his demand satisfaction and damage avoidance concept. According to this concept, cattle in tethered housing are not able to live out a large part of their normal behavior.

In addition to behaviors such as communal grooming, this also affects normal "harm avoidance" behaviors. For example, due to the restriction of movement, cattle cannot escape the constricting tethering devices, which causes them to experience a "failure to cope" and suffer. Physical indicators (diseases of the udder or musculoskeletal system) and behavioral disturbances can be used to determine significant suffering from tethering (16).

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Bans around tethering

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In 2020, news spread that Denmark would phase out tethering. The government decided to phase out by 2027, and in organic farms by 2024. For new buildings, the ban has already been in effect since January 2022 (17).

Three examples show that bans on tethering are possible in Germany.

In 2021, the Federal Parliament and Federal Council decided to revise the Animal Welfare-Dog Ordinance. In § 7, the ban on tethering dogs was included (18). According to the justification for the amendment, the restrictions on movement and social behavior could no longer be considered appropriate for animal welfare (19). With a transition period of only one year, the ban came into force on 01.01.2023.

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The enormous restrictions on various functional circuits, such as social, resting and exploratory behavior, are also relevant from an animal welfare perspective when horses are kept tethered. The keeping thus contradicts § 2 No. 1 and 2 of the German Animal Welfare Act (20). In 2009, the German Federal Ministry of Food and Agriculture published "Guidelines for the assessment of horse husbandry from an animal welfare point of view". In these guidelines, the permanent tethering of horses was considered to be contrary to animal welfare (21). This was followed by decrees of the federal states to ban this form of husbandry (22).

A ban on tethering sows has also been implemented in agricultural animal husbandry, where economic pressures are more severe. In 1994, the ban was incorporated into national law, in the Pig Husbandry Ordinance (23). After a transitional period of ten years, the ban has been in force since 2006 and was also anchored in the German Animal Welfare-Farm Animal Husbandry Ordinance § 30 No. 5 (24).

Overview of the legal situation in Austria

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The Austrian Animal Welfare Act prohibits permanent tethering with § 16 paragraph 3 (25). This prohibition applies without exception to calves up to six months of age. Calves may be temporarily tethered for a maximum of one hour during watering (26). Older cattle must be allowed to roam or graze 90 days a year (27). However, the Austrian Animal Welfare Act contains numerous exceptions that allow cattle to be kept tethered all year round.

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The reasons for exemption, such as the lack of suitable grazing land or danger to people and animals, are easy to justify. Therefore, many farms make use of them. According to surveys by the Austrian organization “Association against Animal Factories”, cattle on 4,331 farms in Austria have to live in permanent tethered housing (28). In addition, the design of the run or pasture is not regulated in more detail, for example, how long the animals must have access to it.

In 2022, an animal welfare package was adopted (29), according to which the exemptions will be removed from 2030. There is thus a long transition period and seasonal tethering will remain untouched. Animals will continue to be allowed to be tethered for nine months of the year.

The Austrian Animal Welfare Act provides sufficient grounds to classify temporary tethering as not in compliance with animal welfare standards. In particular, § 5 should be mentioned here, which prohibits restriction of movement that leads to pain, suffering, damage or severe fear (30). This prohibition is also to be applied to housing, feeding and care (31). This is reinforced by § 13 section 2, which states that sufficient space and freedom of movement, including for social contact, must be offered. Physical functions and behavior of the animals must not be disturbed (32). Tethering does not meet all these requirements.

Scientific findings exist on all the above-mentioned areas of life in which the animals are restricted by the type of husbandry. They illustrate the negative effects on cattle in tethered housing. Nevertheless, the Austrian Animal Protection Act, which states that animals may only be kept in such a way that their well-being is not impaired according to recognized scientific standards (33), is not implemented.

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Overview of the legal situation in Switzerland

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The Swiss Animal Welfare Ordinance prohibits the permanent tethering of animals (34). However, Article 40 of the Ordinance On The Keeping Of Farm Animals And Pets allows cattle to be kept tethered. It stipulates that they must then have access to an outdoor run for at least 60 days during the growing season and at least 30 days during the winter feeding period. According to Article 7a of the regulation on the keeping of farm animals and domestic animals, the winter feeding period extends from November to April (35).

This makes it legal for cattle to live fixed 275 days a year. It is not regulated more precisely how many hours the cattle must spend at least in the open air.

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It is very difficult to control whether the animals have actually been allowed to go out. The only way for inspectors to verify this is through the farm's own journal on periods of exercises or outdoor access and the inspection of the exercise area and the animals.

The Swiss Animal Welfare Ordinance defines outdoor exercise as "free movement in the open air, where the animal can freely [...] determine the direction and speed itself". Animals may remain without outdoor exercise for a maximum of two weeks. Calves, which may not be kept tethered until they are four months old, are exempt (36).

Article 3 of the Swiss Animal Welfare Ordinance, on the other hand, requires that animals be kept in such a way that "their bodily functions and behavior are not disturbed." Housing must be designed to provide "suitable" resting places and employment opportunities (37) and sufficient space for species-typical behavior (38). Housing must not "unnecessarily" restrict species-typical grooming behavior (39).

Tethering devices are regulated by the Ordinance on the Keeping of Farm and Domestic Animals (40). The ordinance further restricts the outdoor exercise of bulls used for breeding. Instead of allowing free access to a run or pasture, it is sufficient to lead the animals outdoors (41). However, during guided exercise, the animals can still only exercise species-typical behaviors to a limited extent.

The restrictions and burdens associated with tethering contradict the basic idea of the Swiss Animal Welfare Act to "protect the dignity and welfare of the animal" (42). According to this understanding, dignity describes the intrinsic value of the animal, which must be respected. However, overriding interests that justify the burdens under the law also limit this inherent value.

Tethering is also permitted in organic livestock production (43). Only an outdoor run on at least 26 days per month between May and October and on at least 13 days per month from November to April must be granted to the animals (44).

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