Horses run and herd animals. In the wild, animals regularly travel distances of around 30-40 km to find food; In general, eating takes up much of your time. In contrast to this is horse keeping, which can be found in most all horse stables (boarding). Here, there is usually only a narrow period of time when the animals can go to the paddock or a paddock. At the same time, in many barns a feeding model dominates, which only provides hay two or three times a day, supplemented by the administration of concentrate feed if necessary. In winter, many horses only see their box, apart from the movement of the rider in the ring or on the ring. Rather, this means staying in the box for at least 20 hours without being able to move around enough. But what are the legal requirements to have horses? The following article is intended to provide clarity.
The Animal Welfare Act (TierSchG) is decisive for the evaluation. § 2 TierSchG stipulates that:
“Anyone who has, cares for or must care for an animal
1. must feed the animal properly according to its species and needs, care for it and house it in a manner appropriate to its behavior,
2. must not restrict the animal’s ability to exercise in a species-appropriate manner in such a way that it causes avoidable pain or suffering or harm,
3. must have the necessary knowledge and skills for proper feeding, care and accommodation of the animal according to its behavior.“
Standardized duties apply to all those who own, care for, or care for a horse, which can generally be summed up under the term “care”. [Erbs/Kohlhaas/Metzger, 239. EL Dezember 2021, TierSchG § 2 Rn. 2].
The owner of a horse is, in particular, someone who uses the animal in his own interest and not just temporarily. Who is responsible for bearing the costs of the animal and who bears the risk of loss may play a role here; however, ownership status is not required. In general, the concept of holder in § 2 TierSchG corresponds to the concept of holder in civil law [Erbs/Kohlhaas/Metzger, 239. EL Dezember 2021, TierSchG § 2 Rn. 5].
take care of a horse[…] it is the real care due to the determining power over the animal, which is not livestock.“[ Erbs/Kohlhaas/Metzger, 239. EL Dezember 2021, TierSchG § 2 Rn. 7]. The difference in attitude arises, in principle, from the degree of responsibility in the performance of duties in matters of feeding, care, etc. [Erbs/Kohlhaas/Metzger, 239. EL Dezember 2021, TierSchG § 2 Rn. 7]. Instead, we speak of “having to care” when there is an obligation to care. Such an obligation may arise, for example, from the law or from a contract, that is, a pension contract, for example.
Decisive for the assessment of the obligations resulting from § 2 No. 1 TierSchG is, on the one hand, the animal species to which the animal belongs and, on the other hand, the consideration of the development, adaptation and domestication of the animal, as well as your physiological and ethological needs according to practical experience and scientific findings [Richtlinie 98/58/EG des Rates vom 20. Juli 1998 über den Schutz landwirtschaftlicher Nutztiere, Art. 4]. In principle, this also applies to horses. Insofar as § 2 No. 1 TierSchG speaks of proper nutrition, the wording of the standard already implies that the provision does not have to be “the best”. Appropriate means much more than that there must be a proportionate balance between the purpose of the use and (economic) reasonableness for the owner or caretaker; for this purpose, a weighing of assets and interests must be made. [Erbs/Kohlhaas/Metzger, 239. EL Dezember 2021, TierSchG § 2 Rn. 19].
The required housing of the animal requires that the animal behave in a manner appropriate to the species; this includes, for example, the functional circles of group relations or movement [VG Gelsenkirchen BeckRS 2012, 51553]. The animals must also be given the opportunity to protect themselves from climatic influences, such as heat. Shelters must be kept clean [Erbs/Kohlhaas/Metzger, 239. EL Dezember 2021, TierSchG § 2 Rn. 28 zu den Pflichten].
In addition to the TierSchG regulations, the guidelines of the Federal Ministry of Food and Agriculture must be taken into account. However, these do not represent binding legal standards, but can be used as a supplement by animal keepers and courts when evaluating the TierSchG standards for interpretation. They represent a guide. The heart of horse breeding evaluation are the guidelines for evaluating horse breeding from an animal welfare point of view. [abrufbar auf der Seite des BMEL]. Above all, the guidelines set standards for the breeding, care and accommodation of horses. Some of the most important aspects are presented below:
In terms of housing, the guidelines require in particular that visual, auditory and olfactory contact between individual animals is possible. [S. 4 der Haltungsrichtlinien]. Exceptions are only allowed in the case of highly incompatible animals or in the presence of diseases. The next paragraph already states that the social structure of horses must be taken into account, whether they are kept individually or in groups. Rather, this means that keeping the horse alone is generally tolerated, despite the necessary attention to social intercourse. [hierrunter unterfällt nach den Richtlinien auch die Haltung in einer Innen- oder Außenbox oder einer Box mit Kleinauslauf]. Only the standing position proves to be contrary to animal welfare. For foals and young animals, on the other hand, the reasons for social development are pointed out and, in general, keeping them alone is prohibited. [S. 4 der Haltungsrichtlinien].
In addition, the feed rich in crude fiber does not necessarily have to be offered all day, but at least 12 hours a day. [S. 5 der Haltungsrichtlinien].
For breeding, there are only specific specifications that have to be met, ie not even the guidelines consider them fundamentally binding. Due to the lungs of animals, care must be taken to ensure that there is an adequate supply of fresh air. In addition, various minimum dimensions are specified for the box area and the minimum height of the ceiling, depending on the height at the withers of the horse. [S. 21 der Haltungsrichtlinien]. A sufficiently large, dry and malleable resting surface must be made available to the animals. At the same time, each horse must have the opportunity to have enough time and rest to eat. Water must always be available to horses, regardless of how they are kept. [S. 7 der Haltungsrichtlinien].
There is no minimum time for grazing or exercise. Unfortunately, the term “as often as possible” is used here without obligation. [S. 5 der Haltungsrichtlinien] and pointed out the behavior of the animals, which move about 16 hours in freedom, without domesticating.
Pursuant to Section 16a (1) No. 1 TierSchG, the competent authority (eg veterinary office) may order the necessary measures to meet the requirements of Section 2 TierSchG in individual cases to eliminate identified violations of TierSchG and prevent future violations. In addition, animals can be completely removed from the owner, and at the same time a ban on keeping animals can be imposed. In particular, the keeping of horses as a hobby is subject to the supervision of the competent authority in accordance with Section 16, Paragraph 1, Sentence 1, No. 1 TierSchG [VG Würzburg BeckRS 2016, 45387].
For the legal assessment of an attitude, the decisions already made and their content must be taken into account. In its decision of January 22, 2019, VG Regensburg, BeckRS 2019, 3491 expressly uses the breeding guidelines of the Federal Ministry of Food and Agriculture as a basis. In the opinion of VG Regensburg, these apply not only to pleasure horses, but also to sport horses. No restrictions on the scope of application are found in the guidelines. As a result, both sport and leisure horses must be offered sufficient pasture and/or exercise. If an official order states that an exhaustion of (at least) three hours is necessary, the court is of the opinion that it should be approved. At the same time, it is irrelevant that keeping horses without exercise often occurs in practice or is “usual”. For the examination of § 2 No. 2 TierSchG, the court was not guided by the question of customary practice.
In its judgment of December 4, 2006, the VG Düsseldorf decided, BeckRS 2007, 24979, that an (official) order to offer all captive horses at least three to four hours of outdoor exercise every day was lawful and that the plaintiff (as the owner) was not in his rights injured. In addition, the court found that the opportunity to exercise outdoors for three to four hours compensates for the loss of activity in stable housing and is therefore not dependent on the weather. As a result, horses must always have access to exercise, even in bad weather. If in the given case the plaintiff raised objections in this regard, in particular with regard to permafrost and continuous rain, the court is of the opinion that a corresponding fixing of the outlet can (and must) counteract any risk (of injury). The objection that in winter, due to early darkness, the required hours cannot be met, does not seem persuasive to the court. Because at this point, the farmer has the option to reduce the number of animals or to create another exit zone in order to guarantee a corresponding (simultaneous) exit.
The decision of the Würzburg Administrative Court of July 16, 2018, BeckRS 2018, 16492 shows that the keeping of free-range horses throughout the year can, under certain circumstances, justify a violation of the TierSchG for horses, as well as the delivery and , if necessary, the tolerance of the withdrawal of the horses. In particular, the veterinary office had complained about the lack of (sufficient) weather protection and the considerable dirtiness of the animal resting area, which was too small, with conditions to remedy the situation. At the same time, the property did not have adequate security, so the animals repeatedly left the property on their own. In addition, there were deficiencies in the care of the animals, especially in the area of hoof care. However, there was a hurdle to enforcement in the underlying case, as the caretaker did not own the horses. From the property, the owner is entitled to the animals with the result that coercive measures can be legally prevented. There was no tolerance order against the owner, so the decision was illegal.
Horse breeding from a legal perspective
When keeping horses, regardless of whether it is a purely private hobby or a commercial holding, the specifications of the horse care guidelines of the Federal Ministry of Food and Agriculture must be observed and at least met. Also, taking into account various judgments that have been passed, it is advisable to give the horses at least two or three hours of exercise. With regard to care and feeding, suitability must be observed and care must be taken to ensure that the feed is of sufficient quality. The constant availability of water is mandatory.