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Varkens in Nood v State Secretary for Agriculture, Fisheries, Food Security and Nature
Facts
On 13 October 2026, the Dutch Administrative Court of Appeal for Trade and Industry (College van Beroep voor het bedrijfsleven) handed down a judgment concerning the enforcement of the Netherlands’ legal prohibition on routine pig tail docking.
Pig tail docking involves the removal of part of a pig’s tail, generally to reduce the risk of tail biting by other pigs. In the Netherlands, routine tail docking is a prohibited practice, subject to an exception which permits the docking only where three legal conditions are satisfied.
On 3 March and 11 May 2023, the animal welfare organisation Varkens in Nood requested enforcement action against a number of pig farmers whom it alleged had docked pigs' tails without satisfying the statutory conditions. Following inspections, the State Secretary rejected the requests in decisions dated 6 September and 23 November 2023. Although those initial decisions acknowledged breaches of the prohibition, the State Secretary declined to enforce it, principally on proportionality grounds, including the potential economic impact on individual farms and uncertainty about the applicable conditions [1.1]–[1.3].
In the subsequent decision on Varkens in Nood's objections, the State Secretary upheld the refusals but changed his reasoning. He maintained that the statutory conditions contained too many open-ended requirements to be enforceable. In particular, he considered it impossible to establish whether the farmers had satisfied that preventive measures against tail biting and other behavioural disorders had been taken but had proved ineffective. He therefore concluded that the available evidence did not establish a breach and that he lacked grounds to take enforcement action [1.4].
Varkens in Nood challenged that decision before the Dutch Administrative Court of Appeal for Trade and Industry. The central issue was whether the State Secretary had lawfully refused enforcement on the basis that the statutory conditions permitting tail docking were too unclear to apply.
Law
Wet dieren (Animals Act)
Article 2.8(1) stipulates that it is prohibited to perform physical interventions on an animal.
Article 2.8(2)(b) authorises exceptions to that prohibition to be prescribed through physical interventions designated by or pursuant to an Order in Council.
Besluit diergeneeskundigen (The Veterinarians Decree)
The Veterinarians Decree is a form of Dutch delegated legislation, broadly equivalent to a statutory instrument in the UK.
Article 2.3(b) permits the removal of part of a piglet's tail only where three conditions are satisfied (“the tail docking conditions”):
The piglet is no older than four days
Injuries to sows' teats or other pigs' ears or tails have been identified
Preventive measures, including adjustments to environmental conditions or management systems, have been implemented but have proved ineffective in preventing tail biting and other behavioural problems
Decision
The court found that the legal framework had been implemented verbatim from EU Directive 2008/120/EC and as such its decision primarily concerned determination of the proper interpretation and application of the legal framework concerning pig tail docking – specifically, Article 2.8 of the Animal Welfare Act and Article 2.3(b) of the Veterinarians Decree.
Interpretation of the prohibition on pig tail docking
The pig farmers argued that the Directive permitted tail docking in principle, rather than prohibiting the practice in principle and permitting it only in exceptional circumstances [6.2].
The court rejected that interpretation. It held that routine tail docking is prohibited under both the Directive and Dutch legislation, and that docking is permitted only exceptionally, where the piglet is no older than four days, the relevant injuries have been observed and preventive measures have been taken but have proved ineffective. Unless all three conditions are satisfied, the prohibition continues to apply. The court considered this legal position sufficiently clear and not open to competing interpretations [9.1]–[9.3].
Interpretation of the tail docking conditions
(i) The piglet is no older than four days
The court found no ambiguity in the first condition. Its meaning was not disputed between the parties [10.2].
(ii) Injuries to sows' teats or other pigs' ears or tails have been identified
The State Secretary argued that there was ambiguity concerning the number of injuries required to justify tail docking and where in the production chain those injuries must have occurred. In response, the court acknowledged that the legislation does not specify a minimum number of injuries. However, given that tail docking is permitted only by way of exception to a general prohibition, the court held that the exception must be applied restrictively and that a small number of injuries would not be sufficient to justify docking. The court considered that the State Secretary had discretion to determine the number of injuries required.
As to where the injuries must occur, the court held that they must have been observed on the farm where tail docking takes place. Since the statutory requirements are directed at the farmer carrying out the docking, that farmer must demonstrate that the conditions have been satisfied on their own farm. Injuries observed at other farms, including those further along the production chain or in other Member States, cannot be relied upon to justify tail docking [10.3].
(iii) Whether preventive measures have been implemented but proved ineffective
The State Secretary considered the requirement for preventative measures to be unclear in three respects: (a) which preventive measures were required; (b) how their effectiveness was to be assessed; and (c) the appropriate interval between the identification of injuries and the measures taken [10.4].
(a) Which preventative measures are required?
The State Secretary argued that the legislation does not identify which specific preventive measures farmers must implement, or which combination of measures would be sufficient to satisfy the statutory condition. As tail biting is caused by several interacting factors, this makes it difficult to prescribe a standard set of preventive measures or a chronological sequence of steps applicable to all farms [1.4];[5.2].
The court held that, given the multifactorial nature of tail biting, the preventative measures required must be determined on a farm-specific basis. The appropriate measures will depend on the particular risk factors present on each farm, including feeding, space, temperature, air quality, environmental enrichment, hygiene and animal health. The State Secretary must therefore assess, on a case-by-case basis, whether the measures taken are appropriate, while allowing farmers a degree of discretion in determining how to address the identified risks [10.4.1].
(b) whether the measures have proven ineffective
As to whether the measures have proved ineffective, the court held that this must initially be assessed by the farmer, potentially with assistance from a veterinarian or other relevant expert. The State Secretary must then assess whether the measures have been effective, again allowing farmers a degree of discretion. Although this assessment may be difficult in practice, the court held that this does not render the legislation unenforceable [10.4.2].
(c) how much time must elapse between the observed injuries and the implementation of preventative measures.
The court held that the legislation envisages a continuing process of identifying injuries, examining their causes, implementing preventive measures and assessing their effectiveness. No fixed interval can therefore be prescribed between the identification of injuries and the measures taken, as the appropriate timeframe depends on the circumstances of each farm. The court observed that proposed Dutch legislation envisaged a six-month assessment cycle and considered that period not unreasonable in principle; it did not impose a six-month statutory requirement [10.1], [10.4.3].
The burden of proof
The court held that, because the statutory prohibition and its exceptions are directed at pig farmers and veterinarians acting on their behalf, it is the responsibility of the pig farmer to demonstrate that the conditions permitting tail docking have been satisfied. Although there is no specific statutory requirement to record compliance with these conditions, farmers must be able to provide sufficient evidence that they have been met. The court held that farmers are entitled to determine how they demonstrate compliance, including through farm health plans, treatment plans or evidence provided by veterinarians. The absence of a statutory record-keeping obligation does not relieve farmers of this responsibility [11.1].
However, the court distinguished this responsibility from the State Secretary’s burden of establishing that a breach has occurred. The State Secretary must conduct a thorough investigation into the circumstances of the individual farm, taking account of any evidence provided by the farmer. If, following that investigation, the farmer has failed to demonstrate that the statutory conditions for tail docking have been satisfied, the State Secretary must conclude that the prohibition has been breached [11.2].
The court further held that, although the State Secretary may issue guidance or policy rules clarifying how the statutory conditions should be applied, the introduction of further regulations is not a prerequisite for enforcing the existing prohibition [11.2].
Outcome
The court upheld Varkens in Nood’s appeal, finding that the State Secretary’s refusal to take enforcement action was inadequately reasoned and therefore unlawful under Article 7:12(1) of the Dutch General Administrative Law Act. The court held that the existing legislation provided a sufficiently clear legal framework for determining whether the prohibition on routine tail docking had been breached. The State Secretary was therefore not entitled to refuse enforcement requests on the basis that the statutory conditions were too ambiguous to apply [12].
However, the court did not determine whether the individual pig farmers had breached the prohibition. It found that the State Secretary had failed to conduct a proper assessment of whether the farmers had complied with all the statutory conditions, particularly whether preventive measures had been implemented and proved ineffective.
The court lacked sufficient evidence to establish whether breaches had occurred and order enforcement action against the farmers [13.1]–[13.2], but it did annul the State Secretary’s decision and order him to reconsider Varkens in Nood’s enforcement requests.
Commentary
The court’s finding that both the Directive and Dutch legislation prohibit routine tail docking and permit the practice by way of exception recognised that, unless all the statutory conditions are satisfied, the prohibition continues to apply. The court held that this legal position was sufficiently clear and not open to multiple interpretations [9.2]–[9.3]. This finding is particularly relevant to the UK, where tail docking remains widespread despite the statutory prohibition on routine docking. The Dutch court's interpretation reinforces the distinction between a general permission to dock and a narrowly conditional exception to a legal prohibition. The existence of an exception does not mean that tail docking may be treated as a standard farming practice, nor does the widespread use of docking diminish the need for farmers to demonstrate that the conditions justifying it have been satisfied. The judgment therefore reinforces the importance of treating tail docking as an exceptional measure requiring justification, rather than an accepted management practice that is presumed lawful.
Further, and perhaps most significantly, the court’s finding that the Netherlands’ existing legislation provided sufficient grounds for investigating potential breaches and determining whether enforcement action was warranted [11.2]–[12] is particularly relevant to the UK, where the continued prevalence of routine tail docking potentially reflects a failure to enforce existing legal protections, rather than an absence of legislation prohibiting the practice. The judgment illustrates the distinction between practical difficulties in enforcing a statutory prohibition and an inability to enforce it. Although assessing the conditions permitting tail docking requires farm-specific judgments, those difficulties did not, in the Dutch court's view, justify declining to investigate possible breaches. The same question – whether existing legal protections are being adequately assessed and enforced – may merit consideration in the UK as well.
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This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact: info@advocates-for-animals.com.
