What do the Courts say?

Judgment of the Federal Supreme Court of October 7, 2009

BGE 135 II 405

Procedural history: The Veterinary Office of the Canton of Zurich had submitted the application to the Cantonal Animal Experimentation Commission for review. After obtaining additional information and three expert opinions, the Commission requested that the Veterinary Office reject the application. On October 16, 2006, the Veterinary Office approved the animal experiment with conditions. The Animal Experimentation Commission and six of its members lodged an appeal against this decision with the Health Department. On February 26, 2007, the Health Department upheld the appeal and revoked the animal experiment permit. The two applicants unsuccessfully appealed against this decision to the Administrative Court of the Canton of Zurich (read the Administrative Court's decision here.)

In its judgement of October 7, 2009, the Federal Supreme Court dismissed the researchers' appeal against the decision of the Administrative Court of Zurich.

Key findings

Relationship/Relative Importance of both constitutional values (freedom of research and animal welfare in comparison with each other: “Neither freedom of research nor animal welfare takes precedence [in animal testing law]. Rather, both are of equal importance.” (BGE BGE 135 II, E. 4.3.1, p. 410)

Creatures must particularly be refelcted on and evaluated in the same way as humans: "Even if it [the creature’s dignity] cannot and must not be equated with human dignity, it nevertheless requires that living beings in nature be reflected upon and evaluated in the same way as humans, at least in a certain respect.” (BGE 135 II 405, 4.3.4., p. 14)

Scope of assessment must be the same on both sides (harm side and benefit side): “In particular, the complainants rightly did not argue that the national fund project as a whole should be taken into account. This is because, for the purpose of weighing up interests, Art. 61 (3) lit. d a AniWA [former Art 19 (4) AniWA] requires that the knowledge gained from the specific animal experiment and not from some abstract project is taken into account.” (BGE 135 II 405, p 415)

Judgment of the Administrative Court of the Canton of Zurich of November 24, 2022 (Zebra Finch Judgment)

VB.2021.00276

Key findings

Burden of proof:

• The burden of proof for facts justifying approval lies 100% with the applicant.
• This also means that in the event that a supposed alternative method emerges (by one party, e. g. the commission/ the authority/ by an expert) during the procedure that might potentially replace the requested animal experiment or lead to a reduction or refinement, no one other than the applicant is required to prove and demonstrate that and why this alternative method would not be equally suitable or more humane. 
• “In view of this distribution of roles in terms of evidence, the lower court should only have required the appellants in the lower court proceedings to demonstrate plausibly that the use of wireless cables was technically feasible and less disruptive in terms of load, and that the test objectives could also be achieved with wireless cables. It would then have been up to the respondent 2 to refute these plausible objections or to demonstrate that the KTVK's contrary assessment was (nevertheless) correct. “ (VB.2021.00276, E. 5.1.3)
• “Finally, it should be noted that the use of a technical aid that can significantly reduce the stress on animals during an animal experiment should of course also be considered if it is not yet fully developed but will be fully developed during the licensing procedure (provided that it will actually be available); the facts relevant for assessing the extent to which the procedure is indispensable are not limited to the circumstances that existed at the time of the first-instance decision on the application for approval.”

Relevance of basic research:

• "However, it should not be forgotten that basic research can have great potential benefits – even if these are often not yet clear – which only become apparent over time. Researchers in this field usually already have ideas about how the possible findings of an experiment can be used in practice (e.g., clinically) at a later date; provided that such expectations can be scientifically substantiated, they may certainly be taken into account when weighing up the research interest – the more concretely the expectations of later clinical applicability can be formulated, the more weighty the research project appears." (VB.2021.00276 E. 11.2)

Scope of assessment must be the same on both sides: It is the benefit of the individual experiment that counts, not that of the entire experimental group.

“However, it seems essential that, in this context too (see already E. 11.5.2 and E. 11.5.3 above), the lower court wrongly failed to distinguish between the potential future clinical benefits arising from the overall project “Neural sequences for planning and production of learned vocalizations” on the one hand and the sub-project of the respondent 2 on the other.” (VB.2021.00276 E. 11.5.4.)