Trading Away Animal Welfare? The Legal Limits of Article 13 TFEU in the EU-Mercosur Advisory Opinion Procedure

This blog post was written by Annemijn ten Have as an assignment for the master Law and Sustainability in Europe (2025-2026).

Introduction 

After more than two decades of negotiations, the European Union (EU) finally signed the EU-Mercosur Trade Agreement last month. Yet as the ink is still drying, concerns about the Agreement’s impact on the environment, amongst other things, may threaten its entry into force.

Mercosur is a landmark Agreement that “will create one of the biggest trade zones in the world covering a market of around 700 million consumers.” While proponents celebrate its economic potential and geopolitical significance, it has also sparked many debates. A chief concern is animal welfare. Organisations like World Animal Protection warn that the Agreement risks undermining Europe’s high animal welfare standards by opening the EU market to imports from countries with significantly weaker protections. It also risks placing European livestock farmers at a significant economic disadvantage, as they would compete with Mercosur producers subject to far lower animal welfare standards.

Beyond political and ethical debates, Mercosur raises legal questions. For this reason, the European Parliament has referred the Agreement to the Court of Justice of the European Union (CJEU) under Article 218(11) of the Treaty on the Functioning of the European Union (TFEU), requesting an advisory opinion on its compatibility with EU law.

The Parliament’s referral is not just a procedural step. It tests whether the EU’s ethical commitments, such as that of animal welfare as reflected in Article 13 TFEU, are strong enough to override economic interests. This blog post examines whether this rather ambiguous provision has enough legal force for the CJEU to block the Agreement in this advisory procedure. It finds that animal welfare alone might not lead to an adverse opinion from the Court, exposing a structural mismatch between the EU’s claimed ambitions on animal welfare versus its limited legal tools to achieve them.

The Legal Status of Animal Welfare in the EU

From the 1970s onwards, the EU has progressively developed rules to protect animal welfare. Early milestones include the 1968 European Convention for the Protection of Animals during International Transport and the Convention for the Protection of Animals for Slaughter, followed by the 1979 European Conference on Farm Animal Welfare. Several subsequent EU Directives and Regulations further expanded on these protections.

Subsequently, the Treaty of Lisbon (2009) significantly strengthened animal welfare’s legal status by recognising animals’ sentience in Article 13 TFEU. This EU primary law provision now requires the Union and its Member States to “pay full regard to the welfare requirements of animals” in key policy areas, such as agriculture and transport. However, this provision raises questions: what does it mean to “pay full regard”? And how effective is this obligation, given that it does not entail an obligation of result, but rather a due diligence obligation?

In interpreting Article 13 TFEU, the CJEU has previously prioritised animal welfare over competing rights. In a 2020 preliminary ruling, the Court held that protecting animals at the time of killing took precedence over freedom of religion under Article 10 of the EU Charter. This ruling demonstrates the CJEU is willing to balance Article 13 against fundamental rights, and in doing so, to prioritise animal welfare. However, it has yet to be seen whether this approach will extend to trade-related matters, as the Mercosur ruling will be the first time the Court directly weighs economic interests against animal welfare.

More recently, soft-law instruments like the Farm to Fork Strategy (F2F Strategy) promised a new era for animal welfare, aiming to “align the EU legislation to the latest scientific evidence [...] [and] ensure a higher level of animal welfare.” The EU Common Agricultural Policy (CAP) also proposed making animal welfare a “mandatory priority.” However, political opposition has led to most of the F2F proposals being dropped, and the EU will remove funding for welfare programs. While these policy instruments sound promising, they risk becoming mere empty promises.

Animal Welfare in the Mercosur Countries 

Mercosur countries generally maintain very different animal welfare standards compared to the EU. In Bolivia, there are “no national laws that deal with the protection of farm animals.”* While their Law N° 700 protects animals from acts of violence, cruelty and mistreatment, it only applies to domestic animals. Moreover, the Bolivian justice system rarely imposes penalties on people committing crimes  against animals.* 

Brazil, like the EU, recognises animal sentience, but its approach remains limited to non-binding guidelines rather than enforceable legislation.

Given the EU’s comparatively well-developed legal framework for animal welfare, allowing animal trade between these blocks creates significant legal tensions with EU standards. 

The Interim Agreement

The EU-Mercosur interim Agreement briefly addresses animal welfare in Article 7.3 of Chapter 7, echoing Article 13 TFEU by recognising “that animals are sentient beings”. 

However, the only concrete legal mechanism in place is a Subcommittee tasked with exchanging best practices (sub b) and promoting international welfare standards (sub d). Only the Subcommittee’s future dialogues on these matters are legally binding, making the provision purely declaratory and leaving Mercosur countries entirely unconstrained by EU animal welfare standards. Not only is this problematic for animal welfare, it also raises questions about the Agreement’s compliance to the EU’s internal market rules for fair competition.

The Advisory Procedure at the CJEU 

Article 218 TFEU describes the powers and procedures of the various European Institutions in the process of negotiations and adoption of EU agreements with non-EU countries. Paragraph 11 reads that “the European Parliament [...] may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties.” 

In the case of the Mercosur Agreement, the European Parliament has asked the CJEU’s opinion on it, based on this provision. If the CJEU issues an adverse opinion, Mercosur in its current form may not enter into force.

Although this procedure appears promising for reviewing the compatibility of the Agreement with primary law obligations, such as Article 13 TFEU, the Court has previously clarified Article 218 TFEU is a provision “‘of constitutional scope’, thereby further reinforcing its position in relation to other, more general provisions and principles of primary law”.** This means that, in an Article 218(11) procedure, the Court will focus on whether Mercosur undermines the EU’s foundational values, such as those mentioned in Article 2 TEU, rather than policy preferences.

While it could be argued that importing meat produced in violation of EU animal welfare standards undermines the Union’s constitutional commitments, the legal status of animal welfare, under the ambiguous wording of Article 13 TFEU, complicates this argument. Although the provision is enshrined in primary EU law, its constitutional dimension does not necessarily lie in the guarantee of animal welfare itself (an obligation of result). Instead, it is constitutionally imposed upon the Union and its Member States to try to safeguard this (a due diligence obligation). This nuance significantly limits the Court’s ability to issue an adverse opinion on the entire Agreement based solely on Article 13 TFEU, particularly when balanced against competing economic or political interests.

The Legal Future of Animal Welfare 

The Parliament’s request comes at a time when the EU’s own compliance with its animal welfare commitments is under judicial review. In March 2026, the CJEU will hear the landmark case of the End The Cage Age Citizen’s Committee against the European Commission. After over a million EU citizens signed a petition for an EU ban on caged farming, the Commission promised to propose legislative proposals for a ban by the end of 2023, but has failed to do so thus far.

If the CJEU rules in favour of the Citizen’s Committee, this would signal the Court’s commitment to strengthening animal welfare as a legal priority, potentially paving the way for stricter rulings on trade agreements like Mercosur by reinforcing Article 13 TFEU’s legal weight. Conversely, if the Court rejects the Citizen’s Committee, it risks sending a clear message that economic and trade interests may continue to outweigh animal welfare commitments, thereby weakening the legal weight of Article 13 TFEU, even when backed by overwhelming public support.

Conclusion 

The Mercosur Trade Agreement presents the EU with a dilemma: economic potential and geopolitical strengthening versus ethical responsibility. It risks erasing the EU’s animal welfare standards by opening the door to imports from countries with far weaker, or even nonexistent, protections. Moreover, it would unfairly burden EU farmers by creating an uneven playing field.

The Parliament’s referral of the Agreement to the CJEU under Article 218(11) TFEU is a critical test. As a constitutional provision, the Court will block Mercosur if it undermines the European constitutional values. Article 13 TFEU, while comparatively advanced in legally recognising animals as sentient beings, is unlikely to provide a strong enough legal basis for an adverse opinion. To “pay full regard”, then, is more a moral and procedural aspiration, rather than a legal guarantee, as also reflected in the Interim Agreement. As a result, animal welfare is neither treated as a fundamental right nor given the weight it deserves in trade negotiations.

The End the Cage Age case could very well change this gloomy path. If the CJEU strengthens animal welfare protections, it may reinforce Article 13’s legal weight, both internally and in trade agreements like Mercosur. What the Court will decide, is left to be seen. In the meantime, Mercosur exposes a fundamental flaw in EU law and policy. The Court’s ruling will not only factually determine the fate of this Agreement, it will also reveal whether the EU is willing to stand by its values, or if they will risk trading away animal welfare for economic and geopolitical gain.

Written by: Annemijn ten Have

* Federico Dalpane and Maria Baideldinova, Animal Law Worldwide (T.M.C. Asser Press 2024), p. 20
** Joni Heliskoski, ‘The procedural law of international agreements: a thematic journey through Article 218 TFEU’ (2020) 57(1) Common Market Law Review 79, p. 99