Germany Act to Improve the Legal Status of Animals under Civil Law (1989)

Summary

In 1990, the Green Party sought to recognize the legal capacity of non-human animals in the German Civil Code (BGB) but were unable to do so because of concerns about the implications such a move would have for the farming industry. The proposed legislation provided that “animals are not objects but living beings entitled to special legal protection.” (p. 1)

Background
Traditional Roman law, particularly its strict distinction between persons (legal subjects) and things (legal objects), had a significant influence on the German Civil Code (BGB). Within this legal framework, animals were classified as things, with the result that, in legal transactions, an animal was treated like any other economic asset.

As a result, animals were, in principle, subject to the legal rules governing things and objects of property, despite being living beings. This legal classification, however, was no longer considered acceptable by society. Against this background, German policymakers began seeking ways to improve the legal status and protection of animals.

Jurisprudential Framing
Draft Act to Improve the Legal Status of Animals under Civil Law (machine translated)
In 1989, the Federal Government submitted a draft bill to the German Bundestag to improve the legal status of animals in Germany. The objective was to “reflect the view enshrined in animal welfare law that an animal is a fellow creature of man and a sentient being capable of feeling pain, towards which humans have an obligation of protection and care. This fundamental principle is intended to apply throughout the entire legal system and to be expressed in the Civil Code by eliminating the formal classification of animals as objects (chattels).” (p. 1)

The proposed amendment to the Civil Code (BGB) established that animals do not fall under the definition of “thing” (chattel/object) set forth in § 90 BGB or in other legal provisions (statutes and ordinances) (p. 6). The bill’s explanatory memorandum argues that this classification of the animal as a “thing” can lead to outcomes that are incompatible with the human obligation to provide protection and care to animals as fellow creatures. It notes that under current civil law, an ethically grounded approach to animal welfare is already incorporated to a limited extent with regulations concerning animal welfare and nature conservation. This demonstrates that, even within civil law, the legislature already recognizes animals as living beings entrusted to human care.

Critical Response
The Social Democratic Party of Germany rejected the draft legislation. It took the view that it was inconsistent and contradictory, expressing on the one hand the abolition of equal treatment of things and animals while, on the other hand, referring to the application of the law governing things to animals. The SPD argued that the objective to achieve “greater awareness of animals as fellow creatures and of human responsibility towards them” could not be achieved through this bill. The Green Party was likewise unconvinced by the chosen wording in the draft legislation. It emphasized that a genuine improvement in the legal status of animals required their classification as legal subjects. It called for such recognition of animals’ legal capacity to be safeguarded through procedural law. Human duties of protection and care toward animals should be described in greater detail in the Civil Code under the heading “Natural Environment and Future Generations.”

The Legal Affairs Committee of the German Bundestag recommended in a report dated June 12, 1990: “The central principle of ethically grounded animal protection—that human beings bear responsibility for animals as fellow creatures and sentient beings capable of experiencing pain—should also be emphasized more clearly in civil law and translated into concrete improvements in the legal status of animals.”

Debate in the German Bundestag
On June 20, 1990, the Bundestag held the second and third readings of the Federal Government’s draft Act to Improve the Legal Status of Animals under Civil Law. The political parties agreed on the principle that animals are not things and should be protected by special statutes. However, whether the provisions applicable to things should nevertheless continue to apply to animals, unless otherwise provided, was the subject of intense debate. While some political parties questioned whether the draft legislation would fulfill its aim of improving the legal status of animals, others highlighted the far-reaching legal consequences of recognizing non-human animals as legal subjects:

Christian Democratic Union Germany (CDU)/Christian Social Union Bavaria (CSU)
The CDU/CSU announced that it would approve the legislation in the version recommended by the Legal Affairs Committee, but emphasized that the new statutory provisions would have a declaratory character. Therefore, the intention was not to go as far as granting animals an independent legal personality, as proposed by the Greens Party, otherwise a guardian or legal custodian would have to be appointed for each animal in livestock farming.

Social Democratic Party of Germany (SPD)
The SPD took the position that the draft legislation was commendable insofar as it sought to remove animals from their status as things, but a purely declaratory nature could not bring about any actual improvement in the legal status of animals.

Free Democratic Party (FDP)
The FDP emphasized that the draft legislation would nevertheless constitute a significant improvement because it sought to recognize animals as fellow creatures of human beings, as sentient beings capable of experiencing pain, toward whom human beings have duties of protection and care. By contrast, the old Civil Code still reflected ancient Roman legal principles under which animals were regarded as things and could therefore be treated like objects. Therefore, the draft reflected a changed attitude of citizens toward animals, particularly pets, which for many people, had become companions in life and were consequently perceived as living beings rather than as things.

Green Party (The Greens)
The Greens warned that the draft legislation would amount to a “purely cosmetic adjustment of the Civil Code.” In its view, the Federal Government lacked the serious intention to establish changes in society’s treatment of animals. The Greens called for species-appropriate animal husbandry and restrictions on animal experimentation.

Federal Ministry of Justice
The German Federal Minister of Justice Hans Engelhard took note of the criticism. He nevertheless emphasized the advantages of the draft legislation. The intention, he said, was to take a first important step with the bill. The draft was intended to put an end to the unease felt by large sections of the population. People found it objectionable that, in law, an animal was classified as a thing and therefore as an inanimate, dead object. The German jurist further pointed out that the legislative process of adaptation would not be completed by this bill: “We will endeavor to continue thinking about this problem.”

In the final vote, the German Bundestag adopted the draft legislation, which entered into force on 20 August 1990:

Section 90a of the German Civil Code: Animals
Animals are not things. They are protected by special statutes. The provisions that apply to things are to be applied accordingly to animals, unless otherwise provided.