WT/DS401/9  
 
29 January 2014  
(14-0508)  Page: 1/4  
   
 
 EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND 
MARKETING OF SEAL PRODUCTS 
NOTIFICATION OF AN APPEAL BY NORWAY 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 24 January 2014,  from the Delegation of Norway, is being 
circulated to Members.  
_______________ 
 
 1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes (“DSU”) and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) (“ Working Procedures ”), Norway hereby notifies the Dispute 
Settlement Body (“DSB”) of its decision to appeal certain issues of law and legal interpretations in 
the Panel Report in European Communities – Measures Prohibiting the  Importation and Marketing 
of Seal Products (WT/DS401) (“Panel Report”).   
2. Pursuant to Rules 20(1) and 21(1) of the Working Procedures , Norway files this Notice of 
Appeal together with its Appellant’s Submission with the Appellate Body Secretariat. 
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures , this Notice of Appeal includes an 
indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice to Norway’s ability to rely on other paragraphs of the Panel Report in its appeal.  
*** 
4. Norway seeks review by the Appellate Body of the following errors of law and legal 
interpretation by the Panel in its Report, and requ ests the following findings by the Appellate Body. 
I. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT  
1. With respect to the Panel’s identification of the objective of the EU Seal 
Regime:1 
5. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the facts as requ ired under Article 11 of the DSU, when it found 
that the objectives of the EU Seal Regime do not  include protecting the interests of indigenous 
communities (“IC”), as reflected in the “IC requirements”2 under the measure, and promoting the 
sustainable management of marine resources (“SR M”), as reflected in the “SRM requirements”3 
under the measure; and rather found that the EU Seal Regime pursues a sole “objective” of 
                                               
1 Panel Report, paras. 7.410 and 8.2(b). 
2 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(1);  Implementing Regulation, Exhibit JE-2, 
Article 3(1). 
3 See, e.g., Basic Seal Regulation, Exhibit JE-1, Arti cle 3(2)(b);  Implementing Regulation, Exhibit JE-2, 
Article 5(1). WT/DS401/9 
 
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  a d d r e s s i n g  “ t h e  m o r a l  c o n c e r n s  o f  t h e  E U  p u b l i c  w i t h  r e g a r d  t o  t h e  w e l f a r e  o f  s e a l s ” .4  I n  
particular, the Panel erred because:  
 it failed properly to consider the text, legislat ive history, structure, design and operation of 
the EU Seal Regime in identifying the objectiv es of the EU Seal Regime, as required under 
Article 2.2;5  
 in its assessment of the evidence regarding the objectives of the EU Seal Regime, the Panel 
failed to make an objective assessment of th e facts, as required under Article 11 of the 
DSU;6 and 
 assuming it did properly assess the text, legisl ative history, structure, design and operation 
of the EU Seal Regime ( quod non ), the Panel erred under Article 2.2 in finding that the IC 
and SRM interests reflected in the IC and SRM requirements do not qualify as objectives.7  
6. For the reasons provided in paragraph 5 above,  Norway requests that the Appellate Body 
reverse the Panel’s finding that the objectives of the EU do not  include protecting IC interests and 
promoting SRM interests, and that the EU Seal Regime’s sole objective is to address “the moral 
concerns of the EU public with regard to the welfare of seals”.  As a result, the Appellate Body 
should also reverse the Panel’s ultimate finding, in paragraph 8.2(b) of the Panel Report, that the 
EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement . 
2. With respect to the Panel’s finding the E U  S e a l  R e g i m e  i s  “ n o t  m o r e  t r a d e  
restrictive than necessary to fulfil” its objective:8   
7. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the facts as requ ired under Article 11 of the DSU, in finding that 
the EU Seal Regime is capable of making, and do es make, some contribution to the identified 
objective of addressing EU  public moral concerns.9  In particular, the Panel erred because:    
 it failed properly to interpret and apply Article 2.2, by failing to articulate with sufficient 
clarity and precision the degree or extent of th e contribution made by the EU Seal Regime to 
its objective, and by concluding that the EU Seal Regime is capable of making, and does make, some contribution to EU public moral concerns;
10 and 
 it failed to make an objective assessment of the facts, as required under Article 11 of the 
DSU, in finding that the EU Seal Regime is capable of making, and does make, some contribution to the identified objective of addressing EU public moral concerns;
11 and 
 the Panel also failed to make an objective assessment of the matter under Article 11 of the 
DSU by failing to address Norway’s claim and argument that three contested conditions 
under the SRM requirement – that is, the “s ole purpose”, “not-for-profit”, and “non-
systematic” requirements12 (the “three contested conditions”) – make no contribution to the 
measure’s objectives.  
8. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the matter, as re quired under Article 11 of the DSU, by failing to 
establish whether the EU Seal Regime gives rise to “arbitrary and unjustifiable discrimination”, as 
required by Article 2.2, read in light of the sixth recital of the preamble of the TBT Agreement ; 
                                               
4 Panel Report, para. 7.410. 
5 Panel Report, paras. 7.372-7.411. 
6 Panel Report, paras. 7.372-7.411. 
7 Panel Report, para. 7.402. See also Panel Report, paras. 7.399 and 7.401. 
8 Panel Report, paras. 7.505 and 8.2(b). 
9 Panel Report, para. 7.460. 
10 Panel Report, paras. 7.441-7.461. 
11 Panel Report, paras. 7.441-7.461. 
12 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2, 
Articles 5(1) and 5(1)(c). WT/DS401/9 
 
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  9. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the matter as re quired under Article 11 of the DSU, in finding 
that one of the less trade-restrictive alternative measures proposed by Norway was not reasonably 
available to the European Union, having regard to the level of contribution of the alternative.13  In 
particular, the Panel erred because: 
 it held the alternative measure up to a benchmark level of contribution that was much 
higher than the degree of contribution it ha d found was achieved by the EU Seal Regime, 
contrary to Article 2.2;14 and 
 it failed to make an objective assessment of the facts under Article 11 of the DSU, by not 
addressing or making any findings with respect to other less trade-restrictive alternatives put forward by Norway. 
10. For the reasons provided in paragraphs 7, 8, and 9 above, Norway requests that the 
Appellate Body reverse the Panel’s finding that the EU Seal Regime is not more trade-restrictive 
than necessary to fulfil the legitimate objective.15  As a result, the Appellate Body should also 
reverse the Panel’s ultimate finding, in paragrap h 8.2(b) of the Panel Report, that the EU Seal 
Regime is not inconsistent with Article 2.2 of the TBT Agreement . 
II. REQUEST FOR LIMITED COMPLETION OF THE ANALYSIS UNDER ARTICLE 2.2 OF 
THE TBT AGREEMENT  
11. If, as requested by Norway above, the Appella te Body reverses, for any reason, the Panel’s 
findings under Article 2.2 of the TBT Agreement , Norway requests the Appellate Body to complete 
the legal analysis under Article 2.2 of the TBT Agreement  and make the following limited findings: 
 that, in addition to pursuing the EU public morals objective, the objectives of the EU Seal 
Regime also include  protecting the interests of indigenous communities and promoting 
sustainable marine resource management; 
 that promoting sustainable marine resource management is a legitimate objective; and 
 that, by virtue of the three contested SRM conditions, the EU Seal Regime is more trade-
restrictive than necessary to fulfil its legitimate objectives. 
III. REVIEW OF THE PANEL’S FINDINGS  UNDER ARTICLE XX OF THE GENERAL 
AGREEMENT ON TARIFFS AND TRADE (“GATT 1994”) AND REQUEST FOR COMPLETION OF THE ANALYSIS UNDER ARTICLE XX OF THE GATT 1994 
1. With respect to the Panel’s finding that the EU Seal Regime is provisionally 
justified under sub-paragraph (a ) of Article XX of the GATT 1994:16  
12. The Panel erred in interpreting and applying sub-paragraph (a) of Article XX because it 
examined whether the EU Seal Regime as a whole was provisionally justified under that provision, 
whereas it was required, but failed, to consider whether the specific aspects of the measure that give rise to violations of substantive provis ions of the GATT 1994 could fall under, and be 
provisionally justified by, sub-paragraph (a).
17  Norway, therefore, requests that the Appellate 
Body reverse the Panel’s findings at paragraphs 7.639 and 8.3(d) that the EU Seal Regime falls 
under, and is provisionally justified by, sub-paragraph (a).  
                                               
13 Panel Report, para. 7.504. 
14 Panel Report, paras. 7.467, 7.478-7.485 and 7.493-7.505. 
15 Panel Report, para. 7.505. 
16 Panel Report, paras. 7.639 and 8.3(d). 
17 Panel Report, paras. 7.618-7.624. WT/DS401/9 
 
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  13. Norway also requests that the Appellate Body complete the analysis and find that the 
specific aspects of the measure that give rise to violations of the GATT 1994 do not fall under, and 
are not provisionally justified by, sub-paragraph (a) of Article XX.   
14. If the Appellate Body disagrees with Norway’s  requests under paragraphs 12 and 13 above, 
Norway further considers that the Panel erred in interpreting and applying sub-paragraph (a) of 
Article XX, and failed to make an objective asse ssment of the matter, as required under Article 11 
of the DSU. In particular, the Panel erred because: 
 it failed properly to interpret and apply subpara graph (a) of Article XX by finding that the EU 
Seal Regime as a whole contributes “to a certain extent” to the measure’s objective;18 
 it failed to make an objective assessment of the facts, as required under Article 11 of the 
DSU, in finding that the EU Seal Regime as a whole contributes “to a certain extent” to the 
measure’s objective;19 
 it failed to apply the proper legal standard under sub-paragraph (a) of Article XX as regards 
a less trade-restrictive alternative measure because it held the alternative measure up to a 
benchmark level of contribution that was much higher than the degree of contribution it had found was achieved by the EU Seal Regime;
20 and 
 it failed to make an objective assessment of the facts, as required under Article 11 of the 
DSU, by not addressing or making any findings  with respect to other less trade-restrictive 
alternatives put forward by Norway.   
15. As a result of the errors identified in paragraph 14 above, Norway requests that the 
Appellate Body reverse the Panel’s ultimate finding at paragraphs 7.639 and 8.3(d). 
2. With respect to the Panel’s finding that the EU Seal Regime reflects arbitrary 
and unjustifiable discrimination under the chapeau of Article XX of the GATT 
1994:21   
16. The Panel erred in interpreting and applying the chapeau of Article XX because, in 
determining whether the IC and SRM requirements are applied in a manner that reflect “arbitrary 
or unjustifiable discrimination”, it failed to end its analysis upon finding that the IC and SRM 
requirements are not “rationally connected” to the EU public moral concerns.22  
17. If the Appellate Body disagrees with Norway’s  requests under paragraphs 12 and 13 above, 
Norway requests that the Appellate Body modify the reasoning underpinning the Panel’s finding at 
paragraphs 7.651 and 8.3(d) that the measure is not consistent with the requirements of the 
chapeau to Article XX, and uphold that finding, albeit for reasons different than those given by the 
Panel.  
 
__________ 
 
                                               
18 Panel Report, paras. 7.630-7.639. 
19 Panel Report, paras. 7.630-7.639. 
20 Panel Report, para. 7.639. 
21 Panel Report, paras. 7.651 and 8.3(d). 
22 Panel Report, paras. 7.644-7.651.