Criminal liability of veterinaians due to aiding and abetting animal cruelty
Authors: Bülte Jens 
Published: May 2020

Therefore, we may say in conclusion that the criminal liability of an official veterinarian who issues a certificate despite recognising the possibility that if transport takes place animals will suffer actions that fall under the conditions set out by § 17 No. 2a or No. 2b of the Animal Welfare Act, is not prevented by the principles of neutral aid or by the primacy of application of EU law (margin note 6-18)The principles of neutral aid are not applicable to the official veterinarian who is on watch for the protection of transported animals because approval of transport associated with wrongdoing is not a neutral action but eo ipso an action that is dangerous to the legal interest. Furthermore, his action is not subject to the protection of occupational freedom defined by the Basic Law in such a way that a restriction of criminal liability for aiding and abetting would be necessary or make sense. In fact, it would be contrary to the spirit and purpose of state control in terms of animal protection as a constitutional value (margin note 19-37).The primacy of application of European law does not limit criminal liability because even the interpretation of the regulations of the animal transport ordinance means that in a case where animal cruelty at the destination is suspected it is not only that no approval has to be granted but that no approval may be granted. EU law provides an unambiguous prohibition of any cooperation on the part of veterinary authorities in such transport (margin note 38-66).The arguments stated so far by the administrative courts supporting a duty to issue a preliminary certificate do not have sufficient validity, and they lead to a contradiction between criminal law and administrative law due to an artificially isolated view of the coherent life situation. There is, on the basis of EU law and constitutional law, no right to the issue of a preliminary certificate to carry out transport within the country for the purpose of circumventing regulatory safeguards against transport to countries that have a high risk in terms of animal welfare and which would therefore give rise to a concrete danger of animal cruelty in the country of destination or during transport (margin note 67-98).A veterinarian who issues such a preliminary certificate is liable to prosecution due to aiding and abetting animal cruelty abroad if actions are committed during transport to a country with high risk in terms of animal welfare or at the time of slaughter that are punishable under German law. This applies even if he is acting under the impression of current case law of the administrative courts because although in these decisions the question of criminal liability for cooperation in Germany for animal cruelty abroad is called into doubt (without valid reason), it is not denied. It is true that the veterinarian has impunity if he issues a preliminary certificate on the basis of a court order because he will then be acting on the basis of a court order that justifies his action. However, the possible criminal liability of a transporter due to aiding and abetting animal cruelty abroad and also of his legal adviser in the individual case who obtains the permits in court required for the transport remains unaffected by this.