WT/DS400/R/Add.1  
WT/DS401/R/Add.1  
 
25 November 2013  
(13-6375)  Page: 1/95  
  Original: English  
 
 EUROPEAN COMMUNITIES – MEASURES PROHIBITING 
THE IMPORTATION AND MARKETING OF SEAL PRODUCTS 
REPORTS OF THE PANEL 
Addendum 
 This addendum  contains Annexes A to C to the Reports of the Panel to be found in 
documents WT/DS400/R, WT/DS401/R. 
 
 
_______________ 
 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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LIST OF ANNEXES 
 
ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures of the Panel A-2 
ANNEX B 
ARGUMENTS OF THE PARTIES 
Contents Page 
Annex B-1 Integrated executive summary of Canada B-2 
Annex B-2 Integrated executive summary of Norway B-24 
Annex B-3 Integrated executive summary of the European Union B-40 
ANNEX C 
ARGUMENTS OF THE THIRD PARTIES 
Contents Page 
Annex C-1 Integrated executive summary  of the arguments of Colombia C-2 
Annex C-2 Integrated executive summary of the arguments of Iceland C-5 
Annex C-3 Integrated executive summa ry of the arguments of Japan C-6 
Annex C-4 Integrated executive summary of the arguments of Mexico C-12 
Annex C-5 Integrated executive summary of the arguments of Namibia C-17 
Annex C-6 Integrated executive summary of the arguments of the United States C-22 
 
  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures of the Panel  A-2 
 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX A-1 
WORKING PROCEDURES OF THE PANEL 
Adopted on 23 October 2012 
 
 
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules and Procedures Governing the Settlement of  Disputes (DSU). In addition, the following 
Working Procedures shall apply. 
General 
 2. The deliberations of the Panel and the document s submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public.  
3. The Panel shall conduct its internal deliberati ons in closed session. The parties, and Members 
having notified their interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter "third parties"), sh all be present at the meetings only when invited 
by the Panel to appear before it. The Panel shall open its meetings with the parties to the public, 
subject to appropriate procedures to be adopted by the Panel after consulting the parties. These 
procedures shall include measures to protect the personal safety of delegates and WTO officials. 
4. Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delegation and shall ensure th a t  e a c h  m e m b e r  o f  s u c h  d e l e g a t i o n  a c t s  i n  
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions 5. Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it presents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel. Each party sha ll also submit to the Panel, prior to the second 
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
6. A party shall submit any request for a prelimin ary ruling at the earliest possible opportunity 
and in any event no later than in its first writte n submission to the Panel. If the complainants 
request such a ruling, the respondent shall submit its response to the request in its first written 
submission. If the respondent requests such a ruling, the complainants shall submit their response 
to the request prior to the first substantive meeting of the Panel, at a time to be determined by the Panel in light of the request. Exceptions to this procedure shall be granted upon a showing of 
good cause. 
7. Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evid ence necessary for purposes of rebuttal, answers 
to questions or comments on answers provided by the other party(ies). Exceptions to this 
procedure shall be granted upon a showing of good cause. Where such exception has been 
granted, the Panel shall accord the other party(ies)  a period of time for comment, as appropriate, 
on any new factual evidence submitted after the first substantive meeting.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  8. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working language of the submission at the same time. The Panel may grant reasonable extensions of time for the translation of such exhibits upon a showing of good cause. Any objection as to  the accuracy of a translation should be raised 
in writing as promptly as possible. Any objection shall be accompanied by a detailed explanation of 
the grounds of objection and an alternative translation.  
9. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as Annex 
1, to the extent that it is practical to do so.  
10. To maintain transparency between the proceedings in DS400 and DS401, the parties to 
these disputes shall make their written submissions prior to the first substantive meeting available 
to all third parties in both disputes at the time the parties transmit them to the Panel. 
11. To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by Canada could be numbered CAN-1, 
CAN-2, etc. If the last exhibit in connection with the first submission  was numbered CAN-5, the 
first exhibit of the next submission thus would be numbered CAN-6. To avoid the duplication of 
exhibits, the parties may submit joint exhibits by numbering them as JE-1, JE-2, etc. Each party 
may also cross-refer to an exhibit submitted by the other parties by using the number attributed to the exhibit.   
Questions 
 
12. The Panel may at any time during the proceedings pose questions to the parties and third parties, either orally in the course of a meeting or in writing.   
Substantive meetings  
 13. Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel. This list should be pr ovided no later than 5.00 p.m. on the previous 
working day.  
14. The first substantive meeting of the Panel wi th the parties shall be conducted as follows: 
(a) The Panel shall invite the complainants  to make opening statements to present 
their case first. Subsequently, the Panel shall invite the respondent to make its 
opening statement. Before each party takes the floor, it shall provide the Panel and other participants at the meeting with a provisional written version of its 
statement. In the event that interpretation is needed, each party shall provide 
additional copies to the interpreters through the Panel Secretary. Each party shall make available to the Panel and the other parties the final version of its statement, 
preferably at the end of th e meeting, and in any event no later than 5.00 p.m. on 
the first working day following the meeting. 
(b) After the conclusion of the statements, the Panel shall give each party the 
opportunity to ask questions or make comments, through the Panel. Each party 
shall send in writing, within a timeframe to be determined by the Panel, any 
questions to the other party(ies) to which it wishes to receive a response in writing. Each party shall be invited to respond in writing to the other party's 
questions within a deadline to be determined by the Panel. 
(c) The Panel may subsequently pose questions to the parties. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the parties to 
which it wishes to receive a response in writing. Each party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  (d) Once the questioning has concluded, the Panel shall afford each party an 
opportunity to present a brief closing stat ement, with the complainants presenting 
their statements first.  
15. The second substantive meeting of the Panel wi th the parties shall be conducted as follows: 
(a) The Panel shall ask the respondent if it wishes to avail itself of the right to present 
its case first. If so, the Panel shall invite the respondent to present its opening statement, followed by the complainants. If the respondent chooses not to avail 
itself of that right, the Panel shall invite  the complainants to present their opening 
statements first. Before each party takes the floor, it shall provide the Panel and other participants at the meeting with a provisional written version of its statement. In the event that interpretation is needed, each party shall provide 
additional copies to the interpreters through the Panel Secretary. Each party shall 
make available to the Panel and the other parties the final version of its statement, preferably at the end of th e meeting, and in any event no later than 5.00 p.m. on 
the first working day following the meeting. 
(b) After the conclusion of the statements, the Panel shall give each party the 
opportunity to ask questions or make comments, through the Panel. Each party 
shall send in writing, within a timeframe to be determined by the Panel, any 
questions to the other party(ies) to which it wishes to receive a response in writing. Each party shall be invited to respond in writing to the other party's questions within a deadline to be determined by the Panel. 
(c) The Panel may subsequently pose questions to the parties. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the parties to which it wishes to receive a response in writing. Each party shall be invited to 
respond in writing to such questions within a deadline to be determined by the 
Panel. 
(d) Once the questioning has concluded, the Panel shall afford each party an 
opportunity to present a brief closing statement, with the party(ies) that presented 
its opening statement first, presenting its closing statement first.  
Third parties 16. The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meeting of the Panel with the parties, in accordance with the timetable 
adopted by the Panel. To maintain transparen cy between the proceedings in DS400 and DS401, 
the Panel shall also invite third parties in each dispute to make their written submissions to the 
Panel available to all parties and third parties in both disputes. 
17. Each third party shall also be invited to presen t its views orally during a session of this first 
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list 
of members of its delegation in advance of th is session and no later than 5.00 p.m. on the 
previous working day.  
18. The third-party session shall be conducted as follows: 
(a) To maintain transparency between th e proceedings in DS400 and DS401, all third 
parties in both disputes may be present during the entirety of this session.  
(b) The Panel shall first hear the arguments of the third parties in alphabetical order.  
Third parties present at the third-party session and intending to present their 
views orally at that session, shall provide the Panel, all parties and third-parties in 
both disputes with provisional written versions of their statements before they take the floor. In the event that interpretation is needed, third parties shall provide 
additional copies to the interpreters through the Panel Secretary. Third parties 
shall make available to the Panel, all part ies and third parties in both disputes the WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  final versions of their statements, preferab ly at the end of the session, and in any 
event no later than 5.00 p.m. on the fi rst working day following the session.  
(c) After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification 
on any matter raised in the third parties' submissions or statements. Each party 
shall send in writing, within a timeframe to be determined by the Panel, any questions to a third party to which it wishes to receive a response in writing.  
(d) The Panel may subsequently pose questions to the third parties. The Panel shall 
send in writing, within a timeframe to be determined by it, any questions to the third parties to which it wishes to receive a response in writing. Each third party shall be invited to respond in writing to such questions within a deadline to be 
determined by the Panel. 
Descriptive part 
 
19. Each party shall submit an integrated executive summary of its arguments as presented in 
its written submissions, statements and responses to questions in two parts. The total number of 
pages for the integrated executive summary, both parts combined, shall not exceed 30 pages. The 
parties shall submit the first part of the integr ated executive summary at the latest 10 calendar 
days after the responses to questions following the first substantive meeting. The parties shall 
submit the second part of the integrated executiv e summary at the latest 10 calendar days after 
the comments on the responses to questions fo llowing the second substantive meeting.  
20. Each third party shall submit an integrated executive summary of its arguments as 
presented in its written submission and statement at the latest 7 calendar days from the date of the third party session, or in the event that the Panel addresses questions to the third parties, at 
the latest 7 calendar days after the deadline for submission of responses to these questions. The 
integrated summary to be provided by each third party shall not exceed 5 pages.  
21. The executive summaries referred to above shall not in any way serve as a substitute for the 
submissions of the parties and third parties in th e Panel's examination of the case. The description 
of the arguments of the parties and third parties in the descriptive part of the Panel reports shall consist of these executive summaries, which shall be annexed as addenda to the reports. 
Interim review 
 
22. Following issuance of the interim reports, each party may submit a written request to review precise aspects of the interim reports and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
23. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written reques t for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's written request for review.  
24. The interim reports as well as the final reports before translation shall be kept strictly 
confidential and shall not be disclosed. 
Service of documents 
 
25. The following procedures regarding service of documents shall apply: 
(a) Each party and third party shall submit all documents to the Panel by filing them 
with the DS Registry (office No. 2047).  
(b) Each party and third party shall file 9 paper copies of all documents it submits to 
the Panel. However, when exhibits are provided on CD-ROMS/DVDs, 5 CD-ROMS/DVDs and 3 paper copies of those exhibits shall be filed. The DS WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  Registrar shall stamp the documents with the date and time of the filing. The 
paper version shall constitute the official version for the purposes of the record of the dispute. 
(c) Each party and third party shall also prov ide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in 
Microsoft Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If the electronic copy is provided by e-mail, it should be addressed to 
*****@wto.org, with a copy to *****.*****@wto.org, *****.*****@wto.org, 
*****.*****@wto.org, *****.*****@wto.org and *****.******@wto.org. If a CD-ROM or DVD is provided, it shall be filed with the DS Registry.  
(d) Each party shall serve any document submitted to the Panel directly on the other 
parties. Each party shall, in addition, serve on all third parties its written 
submissions in advance of the first substa ntive meeting with the Panel. Each third 
party shall serve any document submitted to the Panel directly on the parties and 
all other third parties. Each party and third party shall confirm, in writing, that 
copies have been served as required at the time it provides each document to the Panel. 
(e) Each party and third party shall file its documents with the DS Registry and serve 
copies on the other parties (and third parties where appropriate) by 5.00 p.m. (Geneva time) on the due dates established by the Panel. 
(f) The Panel shall provide the parties with an electronic version of the descriptive 
part, the interim reports and the final reports, as well as of other documents as 
appropriate. When the Panel transmits to the parties or third parties both paper 
and electronic versions of a document, the paper version shall constitute the 
official version for the purposes of the record of the dispute. 
 
_______________ 
 
  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX B 
ARGUMENTS OF THE PARTIES 
Contents Page 
Annex B-1 Integrated executive summary of the arguments of Canada B-2 
Annex B-2 Integrated executive summary of the arguments of Norway B-24 
Annex B-3 Integrated executive summary of the arguments of the European Union B-40 
 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA 
I. INTRODUCTION 
1. This dispute concerns the regulatory framewor k of the European Union (EU) for trade in seal 
products, which is principally contained in two legal instruments: Regulation No. 1007/2009 (the 
Basic Regulation) and Regulation No. 737/2010 (the Implementing Regulation). These two 
instruments make up the EU Seal Regime. The Basi c Regulation establishes strict conditions under 
which seal products may be placed on the EU mark et. The conditions apply to seal products that 
fall under the "Inuit Communities" (IC), "Marine Management" (MM) and "Consumer Choice" (CC) categories. The Implementing Regulation lays down rules that elaborate on the conditions under which seal products may be imported and placed  on the market, and establishes a conformity 
assessment procedure (CAP) to ensure that only products that meet the conditions are being 
placed on the EU market. According to the European Union, the objectives of the EU Seal Regime are animal welfare with respect to seals and addressi ng the moral concerns of the EU public in this 
respect.  
2. The effect of the EU Seal Regime is to exclude from the EU market all seal products derived 
from seals killed in commercial hunts, regardless of whether they were harvested humanely. In 
doing so, the EU Seal Regime has effectively shut out Canadian seal products from the EU market. 
The negative economic impacts of this measure have reverberated through coastal communities in the Canadian Maritimes, where economic opportunities are limited, and in Canada's Inuit communities, where the Inuit have historically relied on the income generated from seal skin sales 
to supplement their subsistence-oriented lives. 
3. In contrast, the EU Seal Regime minimizes any negative commercial impact on seal products 
from Greenland and the European Union, as well as  on the EU's economic actors with a commercial 
stake in seal products through processing of them for export and transit. Indeed, the EU Seal 
Regime was written in such a way that products from Greenland and the European Union would be able to access the EU market, regardless of whet her the seals were killed humanely. It has not 
disrupted the access these products have to the EU market.  
4. The EU Seal Regime imposes an import restriction on Canadian seal products, contrary to 
GATT Article XI:1. It also constitutes a de facto  violation of the MFN and national treatment 
obligations in TBT Article 2.1 and GATT Articles I:1 and III:4. Further, it is more trade-restrictive 
than necessary to fulfill its objectives and thus constitutes an unnecessary obstacle to international 
trade, contrary to TBT Article 2.2. Finally, th e CAP established by the Implementing Regulation 
violates TBT Articles 5.1.2 and 5.2.1.  
II. FACTUAL BACKGROUND 
A. Overview and history of th e Canadian sealing industry 
5. Seals have been harvested, first by the Inuit and other Aboriginal peoples, and, starting in 
the 16
th century, by European settlers. Commercial sealing on Canada's east coast emerged in the 
18th century.  
6. For Inuit communities, the marketing of seal products continues to contribute to their 
economic development in the 21st century. The Inuit hunt mostly ringed seals. The Inuit hunt 
takes place throughout the year and is primarily for subsistence purposes although some skins are 
sold on the commercial market. Revenues generated from the sale of these products help finance Inuit hunting activities generally. Seal hunting is an intrinsic part of the Inuit way of life, and an 
integral part of Inuit culture and survival. Seal meat is a dietary staple and skins and bones are 
used to produce clothing for locals. It is not economically feasible for the Inuit to develop their own processing and distribution chains. Therefore, th ey have largely relied on commercial processing 
and marketing chains for east coast seal products. The decline in Canada-Europe trade in seal WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  products derived from the east coast commercial harvest has disrupted the functioning of such 
chains. Unless the Inuit develop their own processing and distribution networks, which would likely be prohibitively costly given the small volume of Inuit trade, they will be unable to access global 
markets. 
7. The seal harvest has evolved from a subsiste nce activity into a commercial industry and an 
important economic driver for coastal communities. Sealing has played an integral role in the development and maintenance of Canada's eastern and northern coastal communities, and is at 
the heart of their culture and economy. Individual  sealers are highly dependent on the income it 
generates, which allows them to pay for fishing-related expenses and earn an income from that activity.  
8. There are two main areas of sealing on Canada 's east coast: the Gulf and the Front. They 
both focus on the harp seal and, in accordance with the Marine Mammal Regulations (MMR) and 
depending on the ice conditions, run from mid-or late March to May (Gulf) or in April and May (Front). In both the Gulf and the Front, the harv est is conducted using a mix of small vessels and 
long-liners. The harvest in the Gulf generally takes place on pack ice or large ice floes, and the 
sealers use a mix of rifles and hakapiks. Smaller ice floes and more open water on the Front mean that the sealers tend to rely more on rifles to shoot before landing crewmen to confirm the kill or 
dispatch the seal with a hakapik, if necessary. A pproximately 70 percent of the seal harvest occurs 
at the Front 
9. Canada's east coast seal harvest is completely sustainable and is part of a larger marine 
resource management program. The Department of  Fisheries and Oceans (DFO) has administered 
a total allowable catch (TAC) system since 1971 and the east coast harvest has been managed 
using a precautionary approach-based framework since 2003. TACs are set for three-years, with an annual TAC taking into account various considerations. Catch data must be recorded and 
reported daily. In addition, population estimates are revised annually. The Northwest Atlantic harp 
seal population is at just under eight million and scientists believe that it is at or near an historical high. This population has been rising steadily for the last two decades, despite increasing TACs and 
harvests in the last ten years.  
10. Commercial sealing in Canada focuses on three main commodities, namely skins, oil and 
meat, from which a number of consumer goods are derived. In the last few years, seal oil has 
eclipsed fur to become Canada's primary se al-derived commodity. The available data 
demonstrates that the value of the seal harv est over the last two decades has fluctuated 
dramatically, with a sharp increase in value beginning in 2002 until 2006. Starting in 2007, the value of landed seals fell dramatically for a variety of reasons; including bans on seal products 
imposed by Belgium and the Netherlands that year  and the introduction of the draft EU Seal 
Regime in 2008. Consistent with that trend and for similar reasons, Canada's export figures fluctuated dramatically over the 2000s, with a precipitous fall from 2006 to 2010. A key factor 
contributing to this was the EU and Member State seal product measures.  
11. Canada's seal hunt is one of the most strictly regulated and closely monitored large-scale 
wild animal harvests in the world. At the federal level, DFO implements humane harvesting methods and animal welfare standards, administers licensing regimes, and conducts effective 
monitoring and enforcement. The Inuit hunt is subjec t to the MMR but, in some cases, land claims 
agreements complement them and may supersede them if there is a conflict.  
12. The Canadian east coast seal hunt takes place in a regulatory environment characterized by 
clear and rigorous animal welfare standards that are based on the most current scientific research 
and independent expert advice. The MMR prescribe k illing methods that oblige sealers to kill seals 
in a manner that avoids all unnecessary pain and suffering. The MMR and Canada's licensing 
conditions also require that every seal be harvested in accordance with the three-step process 
(striking, checking and bleeding), which mirrors processes used in commercial slaughterhouses around the world. This process has been recomme nded and endorsed by a number of veterinary 
and scientific panels, including the panel establ ished by the European Food Safety Authority 
(EFSA). The three-step process clearly exceeds what  is required for the vast majority of wild 
animal harvests. Recent statistics with respect to sealers' compliance with the three-step method, based on both on-site observations and post mortem skull checks, reveal a compliance rate that 
exceeds 95 percent.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  13. Under the MMR, all sealers participating in the commercial seal harvest are required to have 
licenses. Canadian sealers are professionals wh o are experienced and knowledgeable about the 
animals they hunt, recognize the importance of adhering to the rules and requirements for 
harvesting seals, and are familiar with and comfor table in the physical en vironment in which they 
work.  
14. The issuance of sealing licenses is governed  by the MMR and guided by the Seal Licensing 
Policy. A voluntary training program developed through the cooperation of DFO and other agencies 
that covers many aspects of the MMR, such as the use of approved weapons and ammunition as 
well as humane harvesting (the three-step proc ess), is offered each year in advance of the 
opening of the harvest. To date over 3000 sealer s have participated. While this voluntary program 
has been successful, the training will be mandatory starting in 2014. This means that sealers will 
not be able to renew their licenses unless they have been formally trained.  
15. In cooperation with other government agencies, DFO monitors the seal hunt closely and 
strictly enforces the Fisheries Act, the MMR and seal licencing conditions in an effort to ensure, 
among other things, that seals are killed in a way that inflicts as little pain and suffering as 
possible. To do so, a team of DFO Fishery Office rs is deployed on a full-time basis on board a 
Canadian Coast Guard vessel (ice breaker) dedica ted to monitoring sealing activities for the 
duration of the harvest in the Gulf and on the Front. In addition, the Royal Canadian Mounted 
Police and the provincial police have teams of officers aboard the icebreaker.  
16. The Coast Guard vessel has been able to participate in all monitoring, control and 
surveillance activities. DFO has also employed th e services of two or three Canadian Coast Guard 
helicopters. Other Fishery Officers are stationed near seal harvesting locations and they conduct 
activities such as: overhead monitoring by helicopters operating from land; patrolling areas of active harvesting with vehicles; accompanying and mo nitoring sealing crews, for a half or full day, 
directly onboard sealing vessels; conducting dockside verifications of catches; participating in daily 
aerial patrols in fixed wing aircraft to identify active harvesting sites; and coordinating the deployment of the icebreaker and helicopters. A number of advanced technological tools, including 
high-definition cameras, are at their disposal. DFO contracts with independent at-sea observers, 
who are randomly deployed on sealing vessels, and allows third parties to observe the harvest.  
17. Sealers who fail to comply with the MMR or the conditions of their sealing licence are 
prosecuted. The consequences of illegal actions include fines, licence prohibitions, and the 
forfeiture of catches, fishing gear, vessels and vehicles.  
18. In seeking to justify why it is necessary for products of the Canadian commercial seal 
harvest to be banned completely from its market, the European Union cites a number of studies, 
which it says demonstrate that: Canada has not prescribed an appropriate standard for humane 
killing; Canadian sealers fail to follow even the prescribed standards; and there are inherent obstacles to killing seals humanely. As confirmed by the EFSA 2007 Opinion and recent, peer-
reviewed research by independent veterinary expe rts, there is nothing inherently inhumane about 
harvesting seals in Canada. 
19. EFSA has also recognized that there is no pe rfect or ideal killing method that can guarantee 
the complete absence of pain, distress and other forms of suffering. Contrary to what the 
European Union is arguing in this dispute, EFSA did not conclude that Canada's east coast seal 
hunt is inherently inhumane; rather, it concluded that "[m]any seals can be, and are, killed rapidly and effectively without causing avoidable pain, distress, fear and other forms of suffering […]"  
According to EFSA, Canada's regulatory regime constituted an effective framework to ensure that 
seals are killed humanely, provided that the sealers use their tools properly and comply with the regulatory requirements prescribing the three- step method. To the extent that EFSA found 
evidence that some seals might experience pain or suffering, it provided a number of 
recommendations on how to minimize these events. These recommendations have been the basis for revisions to Canada's MMR. Canada's seal hunt compares well with other well-managed wildlife hunts and even approved slaughter methods used in abattoirs. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  B. Greenland seal harvest 
20. Historically, the seal harvest in Greenland has been one of the largest in the world. Since the 
adoption of the EU Seal Regime, it has become th e largest. The harp seal hunt takes place all year 
round, but predominantly during the summer and au tumn in open water. This method has been 
recognized to result in a significant percentage of struck seals sinking in the water before the 
sealer reaches them. Ringed seals are hunted primarily during the winter, using netting techniques, which were considered by the EFSA Panel to cause "considerable suffering". 
21. Greenland's sealing community is almost exclusively made up of Inuit. The Inuit harvest 
seals for both subsistence and commercial purposes. It is estimated that over half of the seal skins from the Greenlandic hunt are sold to the Great Greenland A/S tannery, which processes them and either sells them in Denmark or through agents lo cated there. Seal skins are sold during fashion 
fairs in Denmark or abroad, as well as at auctions.  
22. The authorities in Greenland do not make a distinction between subsistence and commercial 
hunts when regulating these activities. Until recently, Greenland did not have any legislation 
specific to the seal harvest. The Executive Order that came into effect in December 2010 imposes 
requirements with respect to licenses, catch reporting and hunting methods, but there are no TACs for seals. There is no requirement for checking and bleeding or any other specific animal welfare 
requirements. In addition, there is no required testing or training of sealers and the monitoring of 
the hunt is very limited.  
C. Sealing and animal welfare issues in the EU 
23. There is very little sealing in the European Union with most of it concentrated in Sweden, 
Finland, and the United Kingdom (Scotland). In Sweden, and Finland, seals have generally been 
considered as pests due to the damage they cause to fisheries and thus are hunted primarily for marine resource management purposes and to protect the sustainability of fisheries. Swedish and 
Finnish sealers mainly consume what they catch or use seals to make commercial products on a 
small scale for sale locally or on the EU market. In the United Kingdom, grey seals are harvested as nuisance animals around fisheries and fish farms.  
24. The numbers of seals that are subject to qu otas or are actually killed in the EU Member 
States annually vary from 200 in Sweden to 3,500 in the United Kingdom. Hunters in Finland are largely self-regulated and it is unclear if there is any independent monitoring of that hunt. It is also unclear how well monitored the Swedish hunt is due to the relative scarcity of inspectors. The 
evidence shows that culls in Sweden and Finland do not require the application of the three-step 
method for killing seals.  
25. The main legislation dealing with the killing and slaughter of animals in the European Union 
is Regulation 1099/2009 on the protection of anim als at the time of killing, which applies to the 
killing of animals bred or kept for the production  of food, wool, skin, fur or other products. This 
Regulation retained some of the stunning and killing methods prescribed under the previous 
legislation, including some that were associated with poor animal welfare outcomes. The slaughter 
methods accepted and used in the European Union do not "guarantee instantaneous death, without suffering" and, in fact, a number of the "best" or "recommended" methods may still cause 
pain, distress and suffering in animals.  
26. Regulation 1099/2009 does not provide for independent monitoring of animal welfare 
protection. The European Union relies on a sy stem where slaughterhouse operators appoint a 
certified animal welfare officer who is responsible for monitoring compliance with animal welfare 
rules. In smaller slaughterhouses, there is no requirement to monitor compliance. In addition, 
each kill of an animal is not monitored. Checks are carried out to verify that animals are stunned properly using only a representative sample at a frequency that takes account of previous checks. 
Moreover, the implementation of mandatory training for officers is, in practice, far from uniform 
and in most Member States there is no compul sory system of certification by the competent 
authorities to ensure that proper training is provided to staff.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  27. Monitoring compliance with animal welfare regulations is also a challenge in all wildlife 
hunts. For instance, the deer hunt in the United Kingdom is not closely monitored. Hunters generally operate alone or in small groups an d they are expected to police themselves.  
D. EU legislative process 
28. In 2006, the European Parliament passed a declaration requesting the European Commission 
(Commission) to draft a regulation to ban the impo rt, export and sale of all harp and hooded seal 
products, which was aimed specifically at the Cana dian east coast seal harvest. In response, the 
Commission undertook to make a full objective assessment of the animal welfare aspects of seal 
hunting. In 2008, it published a legislative proposal for a regulation on trade in seal products that 
imposed a prohibition on the placing on the market , import, transit or export of seal products, 
coupled with a derogation for seal products derived from seals harvested and skinned in a country 
where: (1) adequate legislative provisions or other requirements apply ensuring effectively that 
seals are harvested and skinned without causing avoidable pain and suffering; (2) the legislative provisions or other requirements are effectively enforced; and (3) a certification scheme is in 
place. The proposal also specified that the fundamental economic and social interests of Inuit 
communities traditionally engaged in seal hunting should not be adversely affected. 
29. Following a series of amendments by the European Parliament, the proposal was 
transformed into the EU Seal Regime, which excludes seal products derived from any non-Inuit 
commercial harvests from the EU market while al lowing seal products from non-commercial hunts, 
regardless of whether the seals are killed humanely.  
30. Before and during the legislative process, Ca nada sought to engage with the European Union 
in discussions on a multilateral process that would lead to an international animal welfare standard 
to be applied to sealing. These efforts were ignored by the European Union.  
III. LEGAL ARGUMENTS 
A. The EU Seal Regime violates the GATT 1994 
1. GATT Article XI:1 
31. In this dispute, Canada's claim under GATT Article III:4 is an alternative to its claim under 
GATT Article XI:1. 
32. Article XI:1 applies to any "measure" that pr ohibits or restricts imports from other Members, 
including laws, regulations and requirements. The EU Seal Regime is a "law" or "regulation" and thus clearly falls within the scope of a "measure". Panels and the Appellate Body have concluded 
that the term "restriction" is very broad and includes any "limitation on action, a limiting condition 
or regulation". It has also been confirmed that Article XI:1 applies to de jure  and de facto  
prohibitions and restrictions, and that this provision protects competitive opportunities rather than 
actual trade flows. By limiting imports to products falling within the three categories, the EU Seal 
Regime imposes de facto  quantitative restrictions on the importation of Canadian seal products in 
violation of Article XI:1.  
33. The European Union has confirmed that seal products from Canada's east coast harvest do 
not fall within the scope of the IC or MM categori es. As approximately 95 percent of Canada's total 
seal harvest placed into commerce in the last five years has come from this harvest, the vast majority of Canada's seal products are excluded from the EU market.  
34. Ad Article III, which precludes the application of Article XI:1 for internal measures that are 
enforced at the time or point of importation, does not apply to the EU Seal Regime  If a measure affects the competitive opportunities of imported products in different ways, its different aspects 
can fall within the scope of either Article III or XI. The three categories, which determine whether 
seal products have access to the EU market, can be assessed on their own for the purpose of determining which GATT Article to apply. The nature of the measure being a restriction in relation 
to importation is the key factor to consider in determining whether it may properly fall within the 
scope of Article XI:1.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  35. The facts show that the EU Seal Regime  does not meet the conditions set out in 
Ad Article III. The applicability of that provision tu rns on the application of the measure to both the 
imported and like domestic products. Under the CC category, the conditions only apply to the importation of seal products. By virtue of the fact that these seal products can only be imported 
for personal use, there is no "like" domestic product. Similarly, the conditions under the IC 
category effectively apply only to imported seal products as the European Union has acknowledged that there are no EU seal products that would qu alify under that category. Therefore, Article III:4 
would never apply because there are no "like" domestic products.  
36. For its part, the MM category is also effectively a restriction on importation. Its conditions do 
not restrict EU domestic seal products as they we re crafted to specifically reflect sealing practices 
in the relevant EU Member States (i.e., Sweden). The conditions under that category effectively 
operate as a border measure because their actual impact (i.e., restriction) would only be felt by 
imported products. Indeed, Canadian seal products not derived from seals killed as part of a marine resource management cull can never fulfil the conditions to enter the EU market. Even if 
some Canadian seal products were derived from such a cull, the non-systematic and non-profit 
conditions would prevent their entry into, and plac ement on, the EU market. In contrast, all of the 
EU's domestic seal products derive from marine management hunts and will therefore satisfy the 
conditions. No domestic seal products are effectively prevented from being placed on the EU 
market.  
2. GATT Article I:1 
37. Article I:1 prohibits discrimination between "like" products originating in, or destined for, 
different countries. The primary objective of the MFN obligation is to ensure "equality of 
opportunity to import from, or to export to, all WTO Members."  As found by the Appellate Body in EC – Bananas III , it requires that all "like" products be treated equally regardless of their origin. 
The MFN obligation covers both de jure  and de facto  discrimination.  
38. The term "advantage" in Article I:1 is broad an d, by reference to Article III:4, it includes 
"laws, regulations and requirements" affecting the "internal sale, offering for sale, purchase, 
transportation, distribution or use" of products. The EU Seal Regime is a law or regulation  that 
"affects" the "internal sale", "offeri ng for sale", "purchase" and "distribution" of seal products. The 
E U  S e a l  R e g i m e  c o n f e r s  a n  a d v a n t a g e  t o  G r e e n l a n d i c  s e a l  p r o d u c t s  b y  a l l o w i n g  t h e m  t o  b e  imported and placed on the EU market and to circulate freely between EU Member States given 
that they meet all of the conditions under the IC category.  
39. In EC – Asbestos , the Appellate Body noted that a determination of likeness is 
"fundamentally, a determination about the nature  and extent of a competitive relationship 
between and among products". Pursuant to the criteria set out by the Appellate Body, seal 
products from Canada's non-Inuit east coast commercial seal harvest and seal products from Inuit hunts in Greenland, whether they are inputs or finished products, are physically similar, have the 
same or similar end-uses, consumers considered them to be highly substitutable before the 
introduction of the EU Seal Regime and they are cl assified under the same tariff lines. In addition, 
the parties to the dispute agree that all seal products, whether or not they conform to the EU Seal Regime, are like products that compete and are substitutable between each other in the EU 
market. Thus, Canadian and Greenlandic seal products are "like" products. 
40. The trade advantage granted to Greenlandic se al products is not granted "immediately and 
unconditionally" to "like" Canadian seal products. Indeed, the conditions under the IC category 
effectively permit all Greenlandic seals products to be placed on the EU market, while excluding 
the vast majority of Canadian seal products from the same market. This is due to the fact that Canada's east coast commercial seal harvests are not "hunts traditionally conducted by Inuit or 
other indigenous communities" as required under the IC category. 
3. GATT Article III:4 
41. The EU Seal Regime violates the national treatment obligation under Article III:4 because it 
treats Canadian seal products less favourably than  EU seal products. The EU Seal Regime changes 
the conditions of competition to the detriment of Canadian seal products. In particular, the MM 
category effectively allows all domestic seal products from the EU to continue to be placed on the WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  EU market, but excludes Canadian seal products from the same market, thus constituting a de 
facto violation of Article III:4.   
42.  The parties to this dispute agree that all seal products are like products that compete and 
are substitutable between each other in the EU ma rket. The like products to be compared are all 
domestic (EU) products that both conform and do not conform to the conditions allowing them to 
be placed on the market and all conforming for non-conforming seal products from Canada.    
43. The EU Seal Regime is a law, regulation or requirement affecting the internal sale, offering 
for sale, purchase and distribution of seal products in the EU. In particular, the MM category 
imposes conditions for seal products to be placed on the market and restrictions on the manner in which such products must be marketed in order to  qualify under this category. Thus, the operation 
of the category limits the internal sale, offering for sale, distribution, and ultimately, the purchase 
of seal products.  
44. In Korea – Various Measures on Beef , the Appellate Body determined that "treatment no 
less favourable" under Article III:4 means "according conditions of competition  no less favourable 
to the imported product than to the like domestic product."  Ultimately, this inquiry turns on 
whether the EU Seal Regime modifies the conditio ns of competition to the detriment of Canadian 
seal products. In this case, the design, structure and operation of the category indicate that EU 
seal products (i.e., those originating in Sweden, Finland and the United Kingdom), were expected 
to, and, in the case of Sweden, will meet all the conditions under the category, including  the "non-systematic", "non-profit basis" and "ecosystem-based approach" conditions, while Canadian seal products do not. Canadian seal products ar e effectively excluded from qualifying under the 
MM category. The recent approval of Swedish authorities to issue accreditation documents 
confirms that such conditions were set to accommodate the existing practices of EU Member States. Thus, the EU Seal Regime modifies the conditions of competition to the detriment of 
Canadian seal products and accords those products less favourable treatment.  
4. Incorrect legal standards proposed by the EU under GATT 
Articles I:1 and III:4 
45. Despite the European Union's concessions regarding the elements under Articles I:1 and 
III:4, it defends the discrimination of the EU Seal Regime, not on the basis of facts, but on the application of erroneous legal standards. The European Union does this by attempting to incorporate the legitimate regulatory distinction test into the less favourable treatment analysis 
under Articles I:1 and III:4. However, the legitimate regulatory distinction test was developed for 
the sole purpose of addressing claims regarding measures falling under TBT Article 2.1. In US – 
Clove Cigarettes , the Appellate Body concluded that the pr eamble in the TBT Agreement sets out a 
balance not unlike the balance found between GATT Articles III and XX, and it suggested that the 
absence in the TBT Agreement of a general exceptions clause like Article XX necessitates a different reading of Article 2.1. That reading resulted in the incorporation of the legitimate 
regulatory distinction element in the legal standard for Article 2.1 aiming to preserve the balance, 
a s  f o u n d  b y  t h e  A p p e l l a t e  B o d y  i n  US – Clove Cigarettes , between the objective of trade 
liberalization and a WTO Member's right to regulate. In contrast, the text and context of Articles I:1 and III:4 neither allow for, nor do they require, an inquiry into the legitimacy of policy-
based distinctions drawn between products that have been found to be like. As the Appellate Body 
intimated in US – Clove Cigarettes , Article XX is the appropriate GATT provision for this. The 
European Union's attempts to insert a legitimate regulatory distinction element into Articles I:1 
and III:4 are not supported by the jurisprudence, or the text and context of those provisions. 
Further, its argument regarding the possible in congruence between the TBT Agreement and the 
G A T T  1 9 9 4  i s  m e r e  c o n j e c t u r e ,  a s  i t  i s  b a s e d  o n  a n  a s s u m p t i o n  t h a t  t h e  r a n g e s  o f  t h e  p o l i c y  
objectives covered under the TBT Agreement is greater than what is found under Article XX. The 
European Union is incorrect as a matter of law when it asserts that the legal standard for determining less favourable treatment under GATT Articles I:1 and III:4 is the same as for TBT 
Article 2.1.  
46. The European Union applies another incorrect legal standard with respect to Canada's 
de facto  discrimination claims when it tries to distinguish between like products on the basis that 
they are in different situations. To be able to justify differences in treatment on such a basis 
between like products would eliminate the possibility of de facto discrimination being found under 
Articles I:1 and III:4, and thus overturn more th an three decades of GATT and WTO jurisprudence. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  In US – Clove Cigarettes , the Appellate Body has ruled that a panel is to assess objectively the 
universe of domestic products that are "like" the products that are imported from the complainant, on the basis of the nature and extent of the comp etitive relationship between the products in the 
market of the regulating WTO Member.  
47. The universe of products that the Panel must consider is all domestic seal products that are 
"like" the products from Canada and products that originate from other countries, whether they conform to the conditions imposed by the EU Seal Regime or not. Any grouping of products based 
on differences in how the products are treated under the EU Seal Regime does not alter the fact 
that they are in a competitive relationship. In this case, all seal products are in a competitive relationship despite any differentiation between the seal products based on who produces them, 
where they originate from or the purpose for which they are produced. The different situations that 
may exist in the production of seal products do not affect which seal products are to be compared 
for the purpose of determining discriminatio n under the GATT 1994 or the TBT Agreement. 
48. Product grouping does not have any role in a determination of a violation under Article I:1. 
The test for a violation under Article I:1 is not whether there has been less favourable treatment 
accorded to a like product from one country but wh ether an advantage has been provided to a like 
product from a WTO Member that is not accorded immediately and unconditionally to an individual 
like product from any other country. The fact that some like products, which are placed into a 
category or group of products under a measure, are accorded an advantage does not negate the failure to accord the same advantage to a like  product that is not part of that group.  
49. In addition, the division of products into groups is not relevant in proving less favourable 
treatment. Generally, different treatment between like products is not dispositive of less 
favourable treatment. The inverse is also true in that treatment under a measure that results in the same treatment being accorded to domestic and some imported products does not prove that 
there is no less favourable treatment. A violation is established when there has been a change in 
the conditions of competition to the detriment of imported products as a whole. It is not necessary to show a detriment to every single imported prod uct. Where almost all of the imported products 
are accorded less favourable treatment, which is the case for Canadian seal products, this is 
sufficient to demonstrate a violation of the non-discrimination obligations in Articles I:1 and III:4. 
50. Even if the groupings of like products base d on different situations should be assessed, quod 
non, the result in this case would still be that the overwhelming majority of Canadian seal products 
are discriminated against. By comparison, virtually  all EU and Greenlandic seal products conform 
to the EU Seal Regime conditions and thus receive more favourable treatment by being able to compete in the EU market. The fact that there may be equal treatment amongst a sub-category of 
products, or that the conditions under such sub-ca tegories are origin-neutral on their face, does 
not dismiss the discrimination against nearly all Canadian seal products. 
5. GATT Article XX 
51. In US – Gasoline , the Appellate Body found that the burden of proof rests on the party 
invoking a GATT XX exception. The European Union has conceded that point. Accordingly, it must demonstrate that its measure falls within the scope of either Article XX(a) or (b), and that it is necessary for the protection of public morals or the protection of animal life or health. In 
particular, the European Union must demonstrate that the less favourable treatment accorded to 
Canadian seal products (Article III:4) and the failure to grant to those products the same advantage granted to Greenlandic seal products (Article I:1) are necessary to protect public 
morals or animal life or health. It is also for the European Union to demonstrate that its measure, 
in its application, does not constitute arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade. 
52. According to the European Union, its measure pursues two closely related objectives: 
addressing the moral concerns of the EU populati on with regard to the welfare of seals, and 
contributing to the welfare of seals by reducing the number killed in an inhumane way. The first objective is stated to be the "overarching" objective of the EU Seal Regime. As explained by the 
European Union, by reducing the global demand for seal products and thus the number of seals 
not killed in a humane way, this improves the we lfare of seals and partially addresses the alleged 
moral concerns of the EU population. The allege d moral concerns are also addressed because EU WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  citizens would not be an "accomplice" to an immoral act being the killing of seals in an inhumane 
way and they would not be confronted with seal products that result from such activity.  
53. In addition, the European Union asserts that both moral concerns stem from a basic rule of 
morality according to which it is wrong for humans to inflict suffering on animals without sufficient 
justification. This rule attempts to bring the objectives of protecting the economic and social 
interests of the Inuit and marine resources mana gement under the "umbrella" objective of public 
morals. Canada also observes that this so-called basic rule of morality is not articulated anywhere 
else in official EU documents dealing with animal welfare issues, despite the fact that there is a 
considerable body of both policy and legislative documents that deal with animal welfare in the 
European Union. The complete absence of such references suggests that its articulation here is largely an ex post facto attempt to justify the EU Seal Regime.  
54. As recognized by the Appellate Body in US – COOL  and US – Gambling, a Member's 
characterization of its own measure is not binding on a panel, which may also look to the structure and operation of the measure along with contra ry evidence adduced by the complainant. The 
evidence shows that the EU Seal Regime has a number of objectives, with the primary goal being 
to address animal welfare. The Basic Regulation refers to the animal welfare aspects of harvesting seals and the concerns of citizens about those animal welfare aspects. In contrast, the EU Seal 
Regime does not refer either to the public morals of EU citizens or to the need to protect them. 
Concerns about seal welfare as such can be based on a broad range of factors not connected to a judgement as to the rightness or wrongness of specific conduct, including pragmatic or utilitarian considerations, or a desire to minimize pain and suffering. In this dispute, the public concerns 
relating to the animal welfare of seals are just that – a public concern.  
a) Article XX(a) (protection of public morals)  
55. Under this provision, the European Union must establish that (1) the purpose of the 
measure falls within the scope of protecting public morals, and (2) the measure is necessary to 
accomplish that objective. The EU Seal Regime do es not fall within the type of measures under 
Article XX(a) as the alleged public moral upon which it is based is not a clearly discernible and 
unambiguous rule of right and wrong conduct. The content of the moral norm is not precise 
enough to allow individuals to understand what is required to adhere to it. In addition, the alleged moral norm is not applied consistently in the EU Seal Regime, undermining its coherence and precluding the alleged norm from rising to the level of a moral imperative. The EU Seal Regime 
also does not protect the public morals of its citize ns. In any event, even if the EU Seal Regime is 
measure that falls under Article XX(a), it would not be necessary to achieve the protection of public morals.  
56. The panel in US – Gambling  defined "public morals" as "standards of right and wrong 
conduct maintained by or on behalf of a community or nation". This phrase discloses several elements that must be present for a measure to be said to concern itself with the protection of 
public morals. First, the policy being pursued must include a clearly discernible standard with a 
normative dimension that discloses whether conduct is right or wrong. Second, it must be clear what conduct is at issue and whose conduct is being targeted by the measure. Third, the phrase "maintained by or on behalf of a community or nation" suggests that a high level of consensus 
must exist with respect to whether the conduct in question is right or wrong. In addition, 
Article XX(a) refers to the "protection" of public morals, which entails that the purpose of a measure sought to be justified under that provision is to forestall or prevent some type of harm.  
57. In US – Gambling  and China – Publications and Audiovisual Products , there was ample 
evidence that the measure aimed to prevent societ al harm from the particular service or product 
being regulated. In both cases, the evidence th at allowing the importation of the products or 
service would give rise to a risk of harm to the society of the Member whose measure was at issue 
was inherent in the measure. Further, the complainants in these disputes did not argue that the measures at issue were not measures to protect public morals. This is not the case in the present dispute. 
58. The European Union has failed to meet its burden to establish the existence of a clearly 
discernible and unambiguous rule of moral conduct, and that the conduct gives rise to a risk of harm within its territory. Its articulation of the alleged public morality objective has changed over WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  the course of this dispute, which demonstrates the risk of accepting an ill-defined public morality 
objective. The European Union sometimes uses th e term "excessive" when it refers to "pain, 
distress, fear and other forms of suffering" but it does not do so in all cases. While the European Union does not define that term, its ordinary meaning implies that some level of pain is 
acceptable. This also undermines the European Union's argument that the hunt is inherently 
inhumane as a concern regarding "excessive suffering" acknowledges that there is a degree of suffering that is acceptable to the EU public. On that point, the Commission's proposal and 
Regulation 1099/2009 both refer to "avoidable" pain, distress and other forms of suffering. Later in 
the course of these proceedings, the European Un ion indicated that it is seeking to, "uphold a 
standard of conduct according to which it is morally wrong for humans to inflict suffering upon animals without sufficient justification."  This last phrase is inherently subjective and it offers little 
guidance as to what would constitute acceptable conduct and under what circumstances. The 
European Union has not explained how these appare ntly different characterizations of the alleged 
moral norm relate to each other, or if they are meant to articulate the same standard. 
59. It is not enough for the European Union to assert that its measure reflects a public norm in 
the sense of a standard of right and wrong conduct. As the party alleging the affirmative of this factual claim, it must demonstrate the existence of that standard with affirmative evidence. The 
European Union claims that these moral concerns  are evidenced by a series of opinion polls 
conducted between 2006 and 2008 (prior to the entry into force if the EU Seal Regime) in several 
EU Member States and a multi-country survey conducted after the measure was adopted. The evidence advanced by the European Union suffers from a number of critical shortcomings. First, 
many of the surveys cited by the European Unio n do not provide sufficient information (e.g., 
margins of error, confidence intervals, respon se rates and sampling methodology) to determine 
whether they are methodologically sound from the standpoint of proper survey techniques. Thus, it 
is impossible to extrapolate the findings of the surveys to the broader population. In addition, 
most of the surveys are quite old. Second, the polls  disclose that the views of EU citizens are not 
rooted in any knowledge about the hunt. In some cases, the views are even expressed by 
respondents who profess not to be aware of the hunt. Even for those respondents who 
characterized themselves as knowledgeable, perc eptions regarding the humaneness of Canada's 
commercial seal hunt are contradicted by the most recently available peer-reviewed scientific evidence. Third, several of the su rveys filed by the EU as exhibits contain questions that do not 
comport with proper question design, and are framed in a leading or biased manner, undermining 
the accuracy of the data generated from the an swers. In sum, the public survey evidence 
advanced by the European Union does not support its assertion that the EU public is deeply 
concerned, in moral terms, about the presence of seal products on the EU market. However, it 
does show that, in general, EU citizens do not know very much at all about the seal industry. More generally, public opinion cannot itself be equated with public morals. 
60. The idea that the EU Seal Regime addresses public moral concerns rests on a false premise 
that the commercial seal hunt is inherently inhumane. This is not the case. Therefore, any public concerns, be they moral in nature or reflecting some other value, are based on misinformation about the seal hunt. Hence, the European Union's cl aim that the concerns of EU citizens will be 
addressed by the expectation that fewer seals will be killed inhumanely is rooted in the 
misperception that a significant number of seals are not killed humanely as part of the Canadian seal hunt.  
61. The European Union's alleged moral norm does not apply universally. According to the 
European Union, the concerns of the public relate  only to seals that are killed in commercial hunts. 
The European Union claims that it is consistent with its public morals objective to allow seal 
products to be placed on its market despite the risk that the seals from which they were derived 
were killed in a manner that gave rise to the "moral concerns" in the first place, provided that they satisfy the conditions in the IC or MM categories. The European Union alleges that the hunts covered by the IC and MM categories justify or requ ire toleration of a higher level of risk to the 
welfare of seals.  
62. The European Union thus seeks to distinguish between seal products on the basis that they 
derive from "commercial" or "non-commercial" seal hunts, but this distinction is illusory for a 
number of reasons. First, the polls cited by the European Union did not elicit views on the trade-
offs between seal welfare and the economic and social interests of the Inuit or marine resource management. Moreover, nowhere does the European Union adequately explain why allowing 
products to be placed under the IC and MM catego ries could not be conditioned on a requirement WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  that animal welfare standards be respected. Second , to the extent that seals experience pain and 
suffering when they are killed, this is not increa sed or decreased depending on the purpose of the 
hunt. What matters is the harvesting method used and whether it is applied effectively. Hence, if there is a standard of conduct with respect to the killing of seals based on the degree of suffering, 
that standard must apply consistently and coherently, regardless of the purpose of the hunt. Third, 
hunts that qualify under the IC and MM categories have significant commercial dimensions. For instance, over one-half of the total annual seal harvest in Greenland is sold commercially. Marine 
management hunts also have a commercial element as they are used to minimize damage to 
commercial fisheries and the seal by-products are tr aded commercially, even if the fisher/sealer is 
prevented from making a profit. In addition, the EU Seal Regime allows for commercial activities 
within the EU such as sales at auction houses, inward processing for export and production of final 
products for export.  
63. The European Union's articulation of the alleged public morality objective was transformed 
from a single objective based on concerns about animal welfare and the possible presence on the 
market of products derived from animals killed in a way that causes pain and suffering, to a rule of 
public morality in which it is acceptable, even required, to inflict suffering upon seals provided that there is a sufficient justification. The European Union has not been able to provide any objective 
criteria to determine whether there is a sufficient justification. The European Union has not 
provided a consistent and coherent articulation of the public morality objective; rather, it has used the "umbrella" of public morals to cover various competing and contradictory objectives depending on which aspect of the EU Seal Re gime it is trying to defend.  
64. This is arbitrary and it fatally undermines the normative character of the standard of conduct 
that is allegedly the basis for the public moral concerns of EU citizens. The so-called standard is not applied consistently and coherently, and this is particularly problematic where the 
"exceptional" treatment essentially eviscerates the no rm relating to the conduct. Indeed, the effect 
of the IC category is that seal products from Greenland can be imported into the European Union at numbers which would fully satisfy the historical demand for seal products, despite sealing 
practices that have been characterized by EFSA as falling below humane animal welfare standards. 
65. The European Union is also required to demonstrate how the EU Seal Regime protects public 
morality in order for it to constitute a measure that falls within the scope of Article XX(a). It alleges that the moral concerns of its citizens would be "addressed" if the placement on the market 
of seal products is prohibited given that the popu lation would then not be an "accomplice" to seals 
being killed in a manner that causes them excessive pain, fear, distress or other forms of suffering, and would not have to be confronted wi th such products on the EU market. Both of 
these claims presuppose that a failure to achieve these objectives would result in actual injury or 
harm to an EU citizen. None of the evidence provided by the European Union (including the polls) pertains specifically to any moral concerns about the hunt or discloses any specific injury or harm 
to EU citizens that would arise as a result of the continued trade in seal products. In addition, it is 
difficult to reconcile the alleged wrong conduct of buying and selling seal products in the European Union while allowing the marketing of seal products under the IC and MM categories. This is compounded by the Regime's toleration of the im portation, use and consumption of seal products 
by EU citizens pursuant to the CC category, and th e processing of such products for the purposes 
of exporting them from the EU. Therefore, the Eu ropean Union has not established a public moral 
concern that is in need of protection in the sense of Article XX(a).  
66. The European Union has also failed to disch arge its burden that the EU Seal Regime is 
necessary to protect public morals. Establishing the necessity of a measure entails determining whether its discriminatory elements were necessary to achieve its objectives. According to the 
Appellate Body in Brazil – Retreaded Tyres , this is a weighing and balancing test between three 
elements: the importance of the common interest s or values being sought; the extent of the 
contribution the measure makes to achieve the obje ctive; and the degree of trade-restrictiveness 
of the measure. If this assessment leads to a fi nding of provisional necessity, a further assessment 
must be made of possible alternative measures  advanced by the complainant that may be 
reasonably available to the WTO Member. The onus is then on the respondent to demonstrate that such alternative measures are not reasonably available and that they would not make an 
equivalent contribution to the achievement of the objective.  
67. While the protection of public morals is, in principle, a highly important interest or value, an 
assessment of the relative importance of the intere st or value at stake must take into account the WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  specific measure at issue and, in particular, the nature or quality of the harm that might be 
expected to arise, having regard to the specific circumstances of the matter before the Panel. The European Union has not fully explained whether the EU Seal Regime intended to "protect" public morals in the European Union; rather, it has stated that its measure is meant to "address" public 
moral concerns. However, there are reasons to doubt the seriousness of the harm that might be 
expected to arise from the presence of seal prod ucts on the EU market. First, the European Union 
only proscribes certain classes of seal products, which it characterizes as "commercial". Second, 
seal products that qualify under the three categories are permitted access to the EU market, 
regardless of whether they have been derived from seals killed in a manner that causes them excessive pain, fear, distress or other forms of suffering. It is thus entirely possible that EU citizens will continue to be confronted with the very products about which the EU alleges they 
harbour serious moral concerns. Further, because of the absence of labelling requirements, these 
citizens will have no way of knowing whether the seal products with which they are being confronted will have been derived from seals ki lled in such manner. Third, under the CC category, 
EU citizens remain free to purchase seal products that do not qualify to be placed on the EU 
market and other citizens will continue to be confronted with them in their daily lives.  
68. In Brazil – Retreaded Tyres , the Appellate Body determined that a measure must make a 
material contribution to the achievement of the objective. A measure that makes a marginal or 
insignificant contribution to the achievement of the objective cannot be considered necessary especially where it is very trade-restrictive. A panel is required to assess the "actual contribution" made by the measure to the objective pursued. To demonstrate that such contribution has been 
made, there must be a genuine relationship of ends and means between the objective pursued and 
the measure at issue.  
69. The EU Seal Regime does not make a material contribution to the objective of protecting the 
public morals of EU citizens relating to the welfare of seals. The categories of seal products that 
can be placed on the market regardless of animal welfare concerns highlights the marginal contribution the EU Seal Regime makes towards protecting animal welfare and the moral concerns 
surrounding the alleged inhumaneness of the seal hunt. The EU Seal Regime does not prevent EU 
citizens from being complicit in seal hunts that conflict with positive animal welfare outcomes, which is at the root of their alleged moral concerns. This is because seal products can still enter the EU under the categories without any requir ement that the seals be killed humanely. The 
measure thus fails to address the alleged moral concerns of EU citizens and does not make a 
material contribution to the objective of protecting public morality. 
70. In addition, the European Union has failed to  explain the public morality dimension of the 
seal product categories that would justify, under its rationale, accepting the alleged wrongful 
conduct, that is, inflicting pain and suffering on seals when they are killed. The European Union has not offered any evidence how the categories contribute to protecting public morals of EU 
citizens other than relying on its own bare assertions.  
71. According to the Appellate Body, the more trade-restrictive a measure is, the more difficult 
it becomes to demonstrate that it is necessary to achieve the policy objective. In this case, the proper comparison to determine if the EU Seal Regime is trade-restrictive is to compare the 
measure as a whole, that is, the categories of seal products that can enter the European Union and 
the consequential prohibition of all other seal products, to the situation prior to the enactment of the measure when market access was not prohibited for commercial seal products. As the IC and 
MM categories impose conditions that limit which seal products may be imported and placed on the 
market, and that these categories exclude virtually all Canadian seal products, it is clear that the EU Seal Regime as a whole is severely trade-restrictive. 
72. Weighing and balancing the relative low importance of the value or interest being pursued, 
the marginal contribution the measure makes to the protection of public morals and its severe trade-restrictiveness, leads to the conclusion that the measure is not provisionally necessary to protect public morals under Article XX(a). In any event, a less trade-restrictive alternative exists – 
that is a regime that conditions market access on compliance with animal welfare criteria for seal 
harvesting methods, combined with a certification and compulsory labelling scheme – and it is reasonably available to the European Union while offering at least an equivalent level of protection. 
Canada has identified the alternative measure in the context of TBT Article 2.2, which is equally 
applicable for the necessity test under Article XX in this case.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  b) Article XX(b) (protection of animal life or health)  
73. According to the European Union, its measure contributes to protecting the health of seals 
because it limits global demand for seal products, thereby reducing the number of seals that are killed in a manner that causes them excessive suffering. Canada considers that the animal welfare 
objective (i.e., the protection of seals from avoidable pain, distress and other forms of suffering) 
falls within the scope of the protection of animal health.  
74. However, in this case, there is an insufficient "nexus" between the European Union and the 
seals whose welfare is allegedly protected under the EU Seal Regime. Those seals occur entirely 
outside EU territory. If a jurisdictional limitation to Article XX(b) exists, as found by the panel in EC 
– Tariff Preferences, the EU Seal Regime does not fall within the scope of Article XX(b).  
75. If the EU Seal Regime falls within the scope  of measures covered by Article XX(b), the EU 
Seal Regime is not necessary to protect the health of seals and a less trade-restrictive, reasonably 
available alternative exists that makes an equivalent or greater contribution to the protection of the welfare of seals. 
76. The European Union claims that the Seal Regime contributes to protecting the health of 
seals because it has the effect of "limiting global demand for seal products, thereby reducing the number of seals which are killed every year in a manner that causes them excessive suffering". Its 
assertion that the Seal Regime will result in lowering the number of seals killed and thus the 
incidence of inhumane killings is not based on any specific evidence and is thus nothing more than speculation. In addition, the Seal Regime, due to the fact that seal products that derive from seals killed in an inhumane manner are permitted to be placed on the market while seal products that 
derive from seals killed in an inhumane manner ar e not, defeats the objective of protecting the 
welfare of seals. Finally, the Seal Regime allows several types of commercial activities within the European Union involving seal products without regard for whether the seals were killed humanely 
such as the importation for the purposes of processing and re-exportation.  
c) Article XX – chapeau (arbitrary or unjustifiable 
discrimination) 
77. If a measure is provisionally justified under Article XX(a) or (b), it still must meet the 
requirements of the chapeau. A measure must no t be applied in a manner that would constitute 
"arbitrary or justifiable discrimination" between countries where the same conditions prevail or "a disguised restriction on international trade".       
78. The focus of the analysis under the chapeau is on the application of the measure already 
found to be inconsistent with an obligation under the GATT 1994. The design, structure and expected operation of a measure can provide info rmation about how a measure will be applied, 
including how it discriminates against imported products. The relevance of the measure's design, 
structure and expected operation is more readily apparent when there is no or little discretion available to authorities in the implementation of the measure. The parts of the measure that are to 
be assessed will consist of those that govern its ap plication and that result in a violation of certain 
GATT provisions. In this case, it is the conditions under the EU Seal Regime, which determine whether a seal product can be either placed on the market or imported for that purpose, that govern its application.  
79. As held by the Appellate Body in US – Gasoline,  the type of discrimination examined under 
the chapeau differs from the discrimination giving rise to a violation under GATT Article I:1 or III:4. Analyzing whether the discrimination is arbitrary or unjustifiable will normally involve an 
analysis that relates primarily to the cause of the discrimination in the light of the policy objective. 
An important factor is whether the measure operates to exclude products from the market whose presence on that market would be consistent with the objective of the measure. If so, as found by 
the Appellate Body in Brazil – Retreaded Tyres , the restriction on trade is not rationally connected 
to the objective being pursued. For example, in US – Shrimp , the Appellate Body found that, in 
certain circumstances, shrimp caught abroad using methods identical to those employed in the United States would be excluded from that market. This result was judged to be at odds with the 
objective of the measure to protect and conserve sea turtles.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  80. In this case, the regulatory distinctions between prohibited and permitted seal products 
under the IC and MM categories are not rationally connected to the policy objectives under Article XX(a) and (b). Permitting seal products to be placed on the EU market under the IC and MM categories, while disregarding animal welfare considerations, indicates that the discrimination does 
not relate to the pursuit of the objective of protecting seal welfare and even goes against it, as 
admitted by the European Union. Any public moral concerns that depend on such protection would also be undermined. Therefore, there is an  absence of a genuine connection between the 
discrimination in the measure, as applied, and the objectives of the EU Seal Regime.  
81. In addition, the rigidity with which the EU Seal Regime is applied and its disregard for the 
differing regulatory conditions amount to arbitrary and unjustifiable discrimination. Seal products are either permitted to, or prohibited from, being placed on the EU market because of the nature 
of the hunt but without any consideration as to how the hunt is regulated. Further, the European 
Union has failed to engage in multilateral negotiations on animal welfare standards in relation to seal hunting.  
82. These factors strongly demonstrate that the EU Seal Regime, as applied, constitutes 
arbitrary and unjustifiable discrimination between countries where the same conditions prevail. 
B. The EU Seal Regime violates the TBT Agreement 
1. TBT Annex 1.1 (definition of "technical regulation") 
83. Following the approach of the Appellate Body in EC – Asbestos , the EU Seal Regime should 
be viewed as an "integrated whole", taking into consideration both its prohibitive and permissive elements. In any event, whether these elements are viewed individually or together as an 
integrated whole, it is clear that the definition of "technical regulation" under TBT Annex 1.1 is 
met.  
84. The EU Seal Regime applies to an identifiable group of products, namely all products. The EU 
Seal Regime lays down a product characteristic in the definition of "seal product": "all products […] 
deriving or obtained from seals". This is an intrinsic characteristic to the products covered by the measure. The product characteristic is prescribed in a negative manner: products placed on the EU 
market cannot contain seal unless they satisfy the conditions under the IC or MM categories. The 
conditions include applicable administrative provisions that must be met for products to have the product characteristic of containing seal. The same is true for products qualifying under the CC category.  
85. The identity of a producer may also be a relevant factor in the identification of related 
processes and production methods. In this case, certain elements of the IC category can be characterized as such. Compliance with the product characteristics and administrative 
requirements is mandatory, as evidenced in the te xt of the Basic Regulation and the Implementing 
Regulation, as well as the imposition of penalties under the Implementing Regulation. Therefore, the EU Seal Regime is a technical regulation. 
86. The European Union does not dispute that the EU Seal Regime applies to an identifiable 
group of products and that it is mandatory but it  contends that the requirements under the IC and 
MM categories, considered separately, do not lay down product characteristics because they do not relate to the product itself. However, the issue is whether the EU Seal Regime, as a whole, 
establishes a regulatory scheme that conditions market access on whether a product exhibits a 
certain characteristic. In EC – Asbestos , the exceptions to the prohibition permitted certain 
products to contain chrysotile asbestos, which was the product characteristic, provided that certain 
conditions, unrelated to the products themselves, existed and that certain administrative 
requirements were met. The parallel in this case is that the three categories set out requirements 
that themselves are not product characteristics but are applicable to products with certain 
characteristics, that is, products containing se al. Thus, it is not necessary for the IC and MM 
categories to lay down product characteristics themselves, given that the measure as a whole does. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  2. TBT Article 2.1 (national treatment) 
87. The national treatment obligations in Ar ticle 2.1 and GATT III:4 contain the same core 
terms, 
namely like products and less favourable treatment. Canada has demonstrated that 
Canadian and EU seal products are "like" and that Canadian seal products are treated less 
favourably than domestic seal products under the MM category. However, unlike under 
Article III:4, a finding that a measure has resulted in a detrimental impact on competitive opportunities for the group of imported products vis-à-vis the group of domestic like products may 
not be inconsistent with Article 2.1 if the impact stems exclusively from a legitimate regulatory 
distinction.  
88. There are two steps in the legitimate regula tory distinction test. First, the Panel must 
identify the regulatory distinction that causes th e detrimental impact on the imported product as 
explained by the Appellate Body in US – Tuna II (Mexico) . This requires the Panel to determine the 
objective being pursued and how the distinction manifests itself, which can be discerned from the design, architecture, revealing structure, operat ion and application of the measure. Second, the 
legitimacy of the distinction is assessed. This is done by examining whether the regulatory 
distinction is even-handed. In US – COOL , the Appellate Body found that evidence of "arbitrary 
and unjustifiable discrimination" towards imported products would tend to show that the measure 
is not "even-handed", and that a measure that is  not designed or implemented in an even-handed 
manner cannot be considered to have a legitimate regulatory distinction. To determine whether it is legitimate, the regulatory distinction must be  assessed against the backdrop of its objectives. 
However, the legitimacy of the objective cannot be  equated with the legitimacy of the regulatory 
distinction.  
89. The EU Seal Regime distinguishes between seal products that can be imported into the 
European Union or placed on the EU market and those that cannot. For seal products to qualify for 
importation and placement on the market, they must meet the conditions under the three 
categories in the EU Seal Regime. The regulatory  distinction arises from the operation of the 
conditions.  
90. With respect to the national treatment claim under Article 2.1, the distinction is between 
seal products from commercial seal hunts and from those marine management hunts. The regulatory distinction reflected in the conditions under the MM category is unrelated to the central objective of the EU Seal Regime to address animal welfare concerns or even the alleged public 
moral concerns. There is no requirement that the seals be harvested in a way that avoids pain, 
distress and other forms of suffering. The design, structure and expected operation of the conditions leave open the possibility that products derived from seals that suffered pain and 
distress when killed will be available on the EU market. The European Union assumes that marine 
management hunts are conducted in a way that positive animal welfare outcomes can be achieved due to the incentive of sealers to be able to reco up the costs of seal hunts, rather than imposing 
any specific requirements to that effect. However, under the EU Seal Regime, the Canadian east 
coast seal hunt does not benefit from the same assumption. Therefore, the distinction between hunts is arbitrary given that the same logic would apply to commercial sealers. The European Union also disregards the fact that marine management hunts have commercial elements because 
they are conducted to protect fisheries and becaus e the MM category only eliminates profit-making 
from the seal products at the hunt level but allows it at the downstream level through processing, manufacturing and retailing.  
91. Distinguishing between seal products based on whether the seals are harvested on a profit 
or non-profit basis is not relevant to the efficacy of the objective relating to sustainable marine management and it bears no rational connection to it. Also, there is no rational connection 
between the objective of promoting the sustai nable management of seal populations and 
restricting commerce in seal products. The regulatory distinction also arbitrarily favours marine management programs involving small seal populations such as those in Sweden, Finland and the United Kingdom. The conditions are arbitrary and unjustifiable in that they reflect the 
characteristics of the hunts taking place in those countries. 
92. The distinction between commercial and non-commercial hunts that the European Union 
claims to be legitimate is more apparent than real given the commercial elements of non-
commercial hunts. Seal products qualifying under the MM category have tangible commercial 
elements
 
that are not just the "'incidental' or 'ancillary' results" 
of such hunts. Further, such a WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  distinction is not legitimate as it is not applied consistently under the EU Seal Regime and it is 
therefore arbitrary. It is also unjustifiable in that it ignores animal welfare considerations. Non-commercial seal products can still be placed on the market without any requirement that the seals from which those products are derived be killed without experiencing excessive pain, fear, distress 
or other forms of suffering. The distinction is administered in an arbitrary and unjustifiable manner 
and is therefore not even-handed.  
93. It is clear that the detrimental impact on virtually all Canadian seal products arising from the 
conditions under the MM category cannot be explained exclusively by a legitimate regulatory 
distinction. Rather, it reflects discrimination and results in a violation of the national treatment obligation found in Article 2.1.  
3. TBT Article 2.1 (most-favoured-nation treatment) 
94. The MFN obligation under Article 2.1 requires  that the imported products be "like" the 
products originating in other countries that have access to the market of the regulating WTO Member, and that the treatment accorded by the measure to products originating in the 
complainant be no "less favourable" than that ac corded to like products of other countries. The 
Appellate Body in US – Tuna II  (Mexico)  suggests that the legitimate regulatory distinction 
element is also part of the MFN test. 
95.   The EU Seal Regime violates the MFN obligation under Article 2.1 because it accords less 
favourable treatment to seal products from Canada as compared to like products originating in Denmark (Greenland). Greenlandic and Canadian seal products are like products, as confirmed by the European Union. The EU Seal Regime creates inequality of competitive opportunities for 
Canadian seal products as the EU market is closed to virtually all of them while effectively being 
open to all seal products from Greenland. Thus, the EU Seal Regime modifies the conditions of competition to the detriment of Canadian seal products resulting in inequality of competitive 
opportunities.  
96. The detrimental impact from the loss of compet itive opportunities is not based exclusively on 
a legitimate regulatory distinction. The distinction between commercial seal products and IC seal 
products is not even-handed because it is administered in an arbitrary and unjustifiable manner. 
First, the regulatory distinction is unjustifiable in that it does not contribute to the advancement of 
the EU's animal welfare objective. This is because the EU Seal Regime allows the marketing of seal 
products derived or manufactured from large-scale seal harvests in Greenland on the grounds that 
those are Inuit hunts, but it does not impose any requirements that the seals be killed humanely. 
A significant number of seals killed as part of that hunt are harvested in a manner that is likely to lead to avoidable pain or suffering. Second, the IC category is arbitrary in that it restricts the 
harvesting of seals to a narrow population of hunters based only on their ethnic origin while 
disregarding the significant commercial aspects of the Greenlandic seal hunt. In addition, the distinction ignores the similarities between the historical and socio-economic context of the 
Greenlandic and Canadian seal harvests. Canadian east coast seal products meet all of the 
conditions under the IC category except for the indigenous status of the harvester.  
97. The regulatory distinction under the EU Seal  Regime is not even-handed and therefore not 
legitimate. Consequently, the detrimental impact from the changes in the conditions of competition 
reflects discrimination and therefore the EU Seal Regime violates the MFN obligation found in 
Article 2.1. 
4. Incorrect legal standard proposed by the EU under Article 2.1 
98. Contrary to the test set out by the Appellate Body in US – Clove Cigarettes , the European 
Union conflates the detrimental impact and legitimate regulatory distinction elements of the less favourable treatment test by making regulatory objectives a factor in determining whether the 
measure has caused a detrimental impact on the competitive opportunities for imported seal 
products. According to the European Union, the regulatory objectives of the measure create different situations that justify the creation of sub-categories of like products within which there is no differential treatment. This does not mitigate, nor justify, the detrimental impact on the 
competitive opportunities for seal products that fall under one of the sub-categories. The European WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  Union's claim that different circumstances are relevant in addressing whether there has been a 
detrimental impact on imported products has no jurisprudential support.  
5. TBT Article 2.2 
a) Objectives of the EU Seal Regime  
99. The EU Seal Regime pursues different and often contradictory objectives. The overarching 
objectives, based on the legislative history and the preamble of the measure, are to protect the animal welfare of seals and to address public conc erns in that regard. In addition, the EU Seal 
Regime appears to pursue other objectives: preven tion of consumer confusion; protection of the 
economic and social interests of Inuit and other indigenous communities engaged in sealing; sustainable management of marine resources; consumer choice; and the harmonization of the EU internal market. 
100. These objectives can be discerned from the de sign, architecture and structure of the EU Seal 
Regime and the legislative history of the Basic Regulation. Notably, the objective of ensuring animal welfare, which is in the preamble, is absent from the operative text of the EU Seal Regime. 
Also, the alleged public morality objective of the EU  Seal Regime is not articulated anywhere in the 
measure. The preamble of Basic Regulation refers  to concerns about the animal welfare of seals 
but these concerns are qualitatively different from moral concerns about seal welfare. In other 
words, the concerns to which the EU Seal Regime refers do not arise from a standard of right or 
wrong conduct regarding the killing of seals; rather, they relate to a desire to minimize or prevent pain, distress, fear and other forms of suffering when seals are killed. The evidence submitted by the European Union fails to establish that any concerns expressed by EU citizens are moral in 
nature.   
b) Legitimacy of the objectives  
101. Animal welfare appears to fall within the scope of the objective relating to the protection of 
animal life or health listed in Article 2.2. It is therefore legitimate for the purposes of that 
provision. Providing consumers with product information is likely to be a legitimate objective. The panel in US – COOL  concluded – a finding that was upheld by the Appellate Body – that providing 
consumer information is related to the prevention of deceptive practices which is a legitimate 
objective under Article 2.2. Protecting the economic and social interests of Inuit and other indigenous communities engaged in seal hunting does not fall within the list of objectives contained in Article 2.2. Nevertheless, it is a policy matter that has received international attention 
and is of considerable importance for Canada, and it also falls within the types of policies for which 
governments are generally acknowledged to carry responsibility. It is therefore a legitimate objective for the purposes of Article 2.2. The sustainable management of marine resources is an 
aspect of protecting the environment, as found by the Appellate Body in US – Shrimp. The 
protection of the environment is listed in Article 2.2. Consequently, it is also a legitimate objective. Preserving the personal choice of consumers is not one of the enumerated objectives; however, it 
is consistent with the overall objectives of the WTO regime. Finally, the harmonization of the EU 
internal market does not fall within the enumerated objectives in Article 2.2, nor can it be found elsewhere in the TBT Agreement or the WTO Agreement. As conceded by the European Union, in this case, it is not a legitimate objective for the purposes of Article 2.2.  
c) Necessity of the EU Seal Regime  
102. Determining whether a technical regulation is more trade-restrictive than necessary involves 
a weighing and balancing of three factors (trade-restrictiveness, degree of contribution to the 
objective, and risks arising from non-fulfilment), as well as the consideration of possible 
alternative measures. It is not disputed that the EU  Seal Regime is trade-restrictive. However, the 
European Union misinterprets and misapplies the jurisprudence when it suggests that only the 
prohibitive aspect of the measure and not the pe rmissive aspects need to be examined under 
Article 2.2 because the operations of the cate gories allow trade that would otherwise be 
prohibited. Both aspects of the EU Seal Regi me must be examined, and the comparison to 
determine whether the measure is trade-restrictive is between the measure as a whole and the 
situation prior to the EU Seal Regime, that is, the absence of restrictions on the import and placing 
on the market of seal products. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  103. The EU Seal Regime either does not contribute or partially contributes to its objectives. In 
some cases, the Seal Regime, based on its desi gn, structure and expected operation, undermines 
its objectives. As determined by the Appellate Body in US – COOL , a panel is not required to 
identify the level at which the respondent aims to achieve or fulfil the objective but only to "assess 
the degree to which a Member's technical regulation, as adopted, written and applied, contributes 
to the legitimate objective pursued by that Member ". Thus, it is the actual contribution of the 
measure to the objective that is relevant. 
104. The EU Seal Regime prohibits the importatio n and placing on the market of seal products 
unless they meet the conditions of the EU Seal Regime. At the same time, the trade in the categories of seal products undermine the achi evement of the purported objective of public 
morality by allowing for the possibility that an unlimited number of seal products derived from 
seals killed inhumanely will have access to the EU market. The result is that EU citizens will be 
confronted by the very products that the European Union claims they abhor. Any indirect and minor contribution to the animal welfare objective and alleged public moral objective is offset by 
granting market access to seal products that do not meet animal welfare standards.  
105. The EU Seal Regime partially contributes to  the protection of the economic and social 
interests of Inuit Communities engaged in seal harvesting but, as conceded by the European 
Union, also undermines it. In particular, the replac ement of Canadian east coast seal products with 
those of the Canadian Inuit is unlikely to occur, as recognized in COWI's 2010 report, due to factors such as remoteness of the communities and limited access to the supply chains needed to increase production   
106. The EU Seal Regime partially contributes to the sustainable marine management objective 
but, in some cases, it undermines it. The MM category allows the by-products of this type of harvest to be placed on the market and some of its conditions support this objective. However, 
some of its other conditions (i.e., "sole purpos e", "non-profit basis", "non-systematic way" and 
"not of a commercial nature") result in the exclusion of seal products that derive from sustainable marine management hunts.  
107. The EU Seal Regime makes no contribution towards the objective of preventing consumer 
confusion. The Implementing Regulation does not provide any information to retail consumers with respect to the presence of seal in the product, compliance with animal welfare criteria, or whether the conditions under the EU Seal Regime have been met.   
108. The EU Seal Regime only partly contributes to the objective of protecting consumer choice 
but it also undermines it as consumers who do not want to purchase seal products may still inadvertently do so because they lack the information necessary to make an informed choice. 
Further, consumers who want to purchase seal products but do not have the option of travelling 
abroad can only purchase from a limited supply of seal products, namely those that  meet the IC 
and MM categories.  
109. The nature of the risks of non-fulfilment of the objectives of the measure and the gravity of 
the consequences arising from such non-fulfilm ent must be examined for each legitimate 
objective. Under the EU Seal Regime, the objective of animal welfare is important and the consequences of non-fulfilment are serious. However, the EU Seal Regime makes little to no 
contribution to the objective and thus the consequences of non-fulfilment have already been 
accepted through the placement on the market of se al products that derive from seals killed in a 
way that causes pain and suffering. In that regard, the risks non-fulfillment would create in 
relation to the alleged public moral objective are that EU citizens would be morally offended about 
the continuous inhumane killing of seals and the products from those hunts being placed on the EU market. An additional risk is that EU consumers would continue participating or being complicit in 
supporting the market for products from inhumanely killed seals. In fact, the EU Seal Regime 
already exposes the EU public to these risks by a llowing Greenlandic and EU seal products to be 
placed on the market under the IC and MM categories.  
110. The risk that the consumers may be confused as to whether products contain seal harvested 
in a manner consistent with animal welfare principles and may inadvertently purchase such 
products that are not already accepted under th e EU Seal Regime. Thus, the European Union's 
rejection of a labelling system that would inform consumers demonstrates that the risks of WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  confusion are not significant and the consequences of non-fulfilment of the objective are not 
particularly serious.  
111. The EU Seal Regime restricts the fulfillment of the objective regarding consumer choice to 
those able to travel abroad. Therefore, the consequences that many EU consumers will be unable 
to purchase seal products within the European  Union are accepted under the EU Seal Regime. 
112. Some of the conditions under the MM catego ry (i.e., non-profit, non-systematic) prevent 
trade in seal products derived from sustainably managed hunts. In addition, these conditions 
provide no incentive for sustainable marine management in commercial harvests. Thus, the risks 
that the objective of sustainable marine management  will not be fulfilled are tolerated because of 
the conditions.   
113. Canada has put forward a measure that has three main features: (1) it sets out animal 
welfare requirements that must be met; (2) it requires certification of, and compliance with those 
requirements; and, (3) it includes product labelling. As found by the Appellate Body in US – 
Tuna II (Mexico) , the alternative measure must make an equivalent or greater contribution to the 
fulfillment of the objective than the measure at i ssue. There is no requirement for the alternative 
measure to fully achieve the objective at the level of fulfilment chosen by the Member if the measure at issue does not fully achieve the objective at that level. 
114. At best, the EU Seal Regime makes a minor an d indirect contribution to the objectives of 
protecting animal welfare and addressing alleged public moral concerns related to this issue. On the other hand, conditioning compliance on animal welfare standards would make a substantial and thus greater contribution to those objectives directly addressing the methods of killing seals. 
The European Union concedes that fulfilling the animal welfare objective would also address any 
related public moral concerns, which means that conditioning market access on compliance with animal welfare requirements would fulfil both ob jectives. In addition, EU consumers would not be 
confronted with seal products that derive from inhumanely killed seals nor be accomplice to such 
killing.  
115. The alternative measure would provide market access for all seal products, as long as those 
products were derived from seals harvested in a manner that meets animal welfare standards. This 
would keep the commercial supply chains of the market intact and restore the demand and higher prices for seal products. The alternative measure would thus advance the objective of protecting the economic and social interests of the Inuit by allowing them to market their products in a global 
market driven by demand and therefore provide much-needed income for other subsistence 
activities. Thus, the alternative measure would make a greater contribution to protecting the economic and social interests of the Inuit than the EU Seal Regime.    
116. The alternative measure, by requiring the use of a label on the final product when sold to 
the retail consumer, would make a greater contribution to the objective of preventing consumer confusion by enabling consumers to make informed  purchases. It also would facilitate greater 
consumer choice as consumers would have the opti on of purchasing any seal products harvested 
in accordance with animal welfare requirements, and thus have a wider variety of products from which to select. 
117. The alternative measure would encourage sustainable marine management by allowing 
market access for all seal products that meet the requirements relating to conservation and 
sustainable marine management, many of which are currently excluded under the EU Seal Regime.  
118. The alternative measure proposed by Canada is reasonably available. Scientifically-based 
animal welfare criteria are available and applied at the international, regional and national levels. 
The general principle is that methods of animal harvest should not cause avoidable pain, distress or other forms of suffering. There are also accepted, general rules or steps in methods of harvest 
that can be and are applied to animals taking into account, inter alia , their physiology, behaviours 
and mental states. These rules or steps are expressed in different ways, but common to them are requirements to strike, check and bleed the anim al. The field studies of Canada's seal harvest 
found its protection of animal welfare comparable to, or better than that found in other types of 
hunts and some domestic slaughters. This demonstrates that meaningful and measurable animal 
welfare criteria for the harvesting of seals is currently available and being applied. It is also WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  possible to monitor and enforce compliance with these criteria, as found in the study conducted by 
Professors Daoust and Caraguel.  
119. The second element of the alternative measure, certification of compliance with animal 
welfare requirements, is reasonably available. Th e Implementing Regulation requires that a seal 
product be accompanied by an "attesting document" at the time of placing on the market, which is 
issued by a "recognized body". Therefore, the st ructure for certification already exists, and the 
functions of that body could be modified to requir e that it have the capacity to ascertain if the 
animal welfare criteria are met and to monitor compliance. In addition, the regulation proposed by 
the Commission in 2008 also provided for a certification scheme for seal products meeting animal welfare criteria. The EU also has a process in place to certify individuals and slaughterhouses with respect to animal welfare criteria under Regulation 1099/2009. Given that the EU Seal Regime 
significantly affects non-EU countries, the Agreement on International Humane Trapping Standards  
provides another possible model for certification under which the animal welfare criteria are certified based on certification in the exporting country. The European Union could then establish 
conformity assessment requirements for the recognit ion of these products. In the context of a wild 
game hunt, the certification of the hunter can be done through the licencing process. Thus, contrary to the European Union's argument, certification does not need to be done on a seal-by-
seal basis. In fact, the European Union does not require animal-by-animal certification in the killing 
of any other animals.   
120. The third element of the alternative measure,  product labelling, is reasonably available. A 
labelling scheme was considered by the Commission  and proposed by the European Parliament's 
Committee on the Internal Market and Consumer Protection. 
121. In Korea – Various Measures on Beef , the Appellate Body recognized that measures 
addressing similar risks and objectives in "related product areas" or with respect to "like, or at 
least similar, products" can provide guidance on possible alternatives that are reasonably 
available. For instance, the EU set up a system under Regulation 1099/2009, composed of animal 
welfare criteria, competence certification, supervision and monitoring, and penalties and 
enforcement provisions. This is in stark contrast to the approach applied to the Canadian seal 
hunt. Given that one of the underlying issues and overarching objectives of both the Regulation 
1099/2009 and the EU Seal Regime are protecting an imal welfare, there is no logical reason why a 
similar regime could not be applied to seals and seal products.    
122. The reasonable availability of the alternative measure is also confirmed by looking at similar 
schemes for other animals (e.g., labelling and certification scheme for the commercial harvest of kangaroos and international trade in the resulting skins and meat, Origin Assured certification and 
labelling scheme for fur products, France's Label Rouge) and the regulatory approach taken by EU 
Member States with respect to wild deer hunts, an activity that presents many characteristics that 
are very similar to Canada's east coast seal hunt.  
123. The alternative proposed by Canada is less trade-restrictive than the EU Seal Regime. 
Currently, all non-Inuit commercial seal products are effectively excluded from the EU market as they cannot meet either the IC or MM requir ements. The alternative regime would exclude 
products that do not meet the animal welfare requirements. However, it would allow all seal 
products to be placed on the EU market provid ed they meet those requirements. In its initial 
proposal, the Commission concluded that such a measure constituted the "least burdensome measure" that can effectively achieve the objectives of the EU Seal Regime.  
6. TBT Article 5 
124. The certification regime created by the Implementing Regulation (recognized bodies, 
attesting documents and competent authorities) constitutes a CAP as defined in TBT Annex 1.3. It 
is thus subject to Article 5. However, that regime has not been fully operationalized and seal 
products that satisfy the conditions of the IC an d MM categories are therefore unable to be placed 
on the EU market. This is due to the fact that the European Union has failed to establish a body that is authorized to assess conformity and to issue attesting documents.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  a) Article 5.1.2  
125. The failure by the European Union to ensure the existence of a recognized body means that 
the CAP cannot function, which prevents trade in se al products even if they meet the applicable 
conditions. This amounts to an unnecessary obstacle to international trade. The European Union 
elected to set up a regime whereby it will consider applications for third party entities requesting 
that they be listed as "recognized bodies" in stead of creating one under the Implementing 
Regulation. Conditioning market access on the prospe ct that a third party entity will apply for, and 
be recognized as such by the EU, creates uncerta inty. Further, even if a recognized body is 
established, it may decide at any time to cease its operations or it could have its authority revoked by the Commission. Thus, the fail ure by the European Union to en sure that a recognized body 
exists amounts to a violation of Article 5.1.2.   
126. The similarities between TBT Articles 5.1. 2 and 2.2 suggest that the test under both 
provisions is very similar. Textually, the first sent ence of Article 2.2 and that of Article 5.1.2 are 
virtually identical, and the second sentence of Article 5.1.2 contains further close textual 
similarities as compared to the second sentence of  Article 2.2. The fifth preambular recital of the 
TBT Agreement was explicitly referred to by the Appellate Body in US – Clove Cigarettes , as being 
relevant to an interpretation of Article 2.2. Given the reference to CAPs in the fifth recital, its 
terms are equally applicable to them. Conceptual ly, the requirement under Article 2.2 that links 
trade-restrictiveness to the achievement of a specif ic objective is very similar to the requirement 
in Article 5.1.2 that links the strictness of the CAP to the objective of ensuring conformity with the 
substantive requirement set out in the relevant technical regulation. In both cases, the concept 
invites the application of what the Appellate Body, in US – Tuna II (Mexico) , has referred to as a 
relational analysis to determine whether the CAP is necessary. This would include consideration of reasonably available, less trade-restrictive altern ative measures, such as supplier declaration of 
conformity, rather than a third party CAP. 
b) Article 5.2.1  
127. Given the similarities with Annex C.1(a) to the SPS Agreement, the approach of the panel in 
EC – Biotech  provides relevant guidance to the interpretation of Article 5.2.1. The panel in that 
case found that Annex C.(1)(a) requires that "a pproval procedures be undertaken and completed 
with no unjustifiable loss of time". The Implementi ng Regulation does not provide for the creation 
of a recognized body, but merely creates a process whereby an entity can apply to become such a 
body. As a result, the CAP cannot be undertaken and completed "as expeditiously as possible" and 
the European Union's failure to create a recognized body gives rise to a violation of Article 5.2.1.  
128. The chapeau of Article 5.2 signifies that the sp ecific obligations set out in Article 5.2.1, while 
being autonomous obligations that are in addition to the general obligation in Article 5.1.2, are 
also relevant to a determination of whether a CAP, in its development or implementation, meets the requirements set out in the more general obligation in Article 5.1.2. Thus, a WTO Member may 
violate both Article 5.1.2 (e.g., because its CAP is applied more strictly than necessary to give the 
Member concerned adequate confidence that a product conforms to its technical regulation) and Article 5.2.1 (e.g., because the CAP was not undertaken and completed as expeditiously as possible). At the same time, Article 5.2.1 is not exhaustive of the considerations that may go into 
an analysis of whether a given CAP meets the requirements set out in Article 5.1.2. 
C. The EU Seal Regime nullifies or impair s benefits accruing to Canada in the 
sense of Article XXIII:1(b) of the GATT 1994 
129. If the Panel were to find that the EU Seal Regime does not violate the TBT Agreement or the 
GATT 1994, its application nevertheless nullifies or impairs benefits that would otherwise accrue to Canada in a manner that is inconsistent with GATT Article XXIII:I(b). The adoption of the EU Seal 
Regime has essentially nullified and impaired the value of these concessions since 20 August 2010. 
Canada's claim is in respect of all the products covered by the indicative list published by the 
Commission. The European Union granted market access concessions to Canada for these products in the Tokyo and Uruguay Rounds.  
130. The three elements that must be satisfied to prove this claim are present in this case. First, 
the European Union has applied the EU Seal Regime. Second, Canada had a "legitimate WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  expectation" of improved market access as a result of the relevant tariff concessions granted to it 
by the EU. At the time these concessions were made, Canada could not have anticipated the implementation of the EU Seal Regime and, th erefore, Canada benefits from the presumption 
found by the panel in Japan – Film . The European Union has failed to rebut this presumption. 
While it relies on a description of anti-sealing activities and a series of trade measures that took 
place or were adopted over the last few decades, the European Union fails to acknowledge that, over the years, Canada has improved its sealing regulations and policies to address the concerns 
raised about its seal hunt. As a result of these efforts, Canada could not have reasonably 
anticipated the adoption of the EU Seal Regime. Third, the application of the EU Seal Regime has resulted in Canada's benefits under the GATT Article II:1(a) being nullified or impaired. The EU Seal Regime has resulted in an almost complete loss of access to the EU market for Canadian seal 
products and its adoption has almost completely nullified the value of the EU's tariff concessions. 
The relative conditions of competition between domestic and foreign products, or between foreign products of different orig ins, have been upset.  
131. In response, the European Union argues that its measure does not discriminate in the sense 
of Articles I:1 and III:4 and that, as a result, it does not upset the competitive relationship between them. This argument should be rejected not only because the EU Seal Regime violates 
Articles I:1 and III:4 but also because, if upheld, it would make it impossible for a complainant to 
succeed in a non-violation claim pertaining to a measure that has been found to be in compliance with those provisions. The European Union's reasoning does not find support in the text of the WTO Agreement or the jurisprudence. As for the Eu ropean Union's argument that the Panel should 
extend the application of the panel's approach in EC – Asbestos  to situations where a measure 
pursuing one of the objectives in Article XX is fo und to be WTO-consistent rather than justified 
under that provision, the reasoning of the panel in that case contains a number of errors and 
should therefore not be followed by the Panel.      
132. Pursuant to Article XXIII:1(b) and Article 26.1 of the DSU, Canada is entitled to have the 
balance of concessions restored through a mutually satisfactory adjustment.  
IV. CONCLUSION AND REQUEST FOR RELIEF 
133. Canada requests that the Panel find that the EU Seal Regime: 
 is a technical regulation in the sense of TBT Annex 1.1; 
 is inconsistent with the European Union's obligations under the TBT Agreement, in 
particular Articles 2.1, 2.2, 5.1.2 and 5.2.1; 
 is inconsistent with the European Union's obligations under the GATT 1994, in 
particular Articles I:1, III:4 and XI:1; and, 
 is not justified by Article XX(a) or XX(b) of the GATT 1994. 
134. Accordingly, Canada requests, pursuant to Article 19.1 of the DSU, that the Panel 
recommend to the Dispute Settlement Body that it request the EU to bring its measures into conformity with its obligations under  the TBT Agreement and the GATT 1994. 
135. In the event that the Panel finds that the EU Seal Regime does not violate the European 
Union's obligations under the TBT Agreement or the GATT 1994, Canada requests that the Panel nevertheless find that the EU Seal Regime has nulli fied and impaired benefits accruing to Canada 
in the sense of Article XXIII:1(b), and recommend to the Dispute Settlement Body that it request 
the EU to make a mutually satisfactory adjust ment as required by Article 26.1 of the DSU. 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX B-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY 
I. THE  MEASURE  AT ISSUE 
1. This dispute concerns the European Union’s legislation that imposes restrictive conditions on 
the import and sale of products obtained from, or containing, seal ("seal products"), namely 
Regulation (EC) No. 1007/2009 of 16 September 2009  on Trade in Seal Products  (the "Basic Seal 
Regulation") and Regulation (EU) No. 737/2010 of 10 August 2010  Laying Down Detailed Rules for 
the Implementation of Regulation (EC) No. 1007/ 2009 of the European Parliament and of the 
Council on Trade in Seal Products  (the "Implementing Regulation"). These regulations are 
collectively referred to as the "EU Seal Regime".  
2. The measure at issue consists of three sets of trade-restrictive conditions, which present 
both prohibitive and permissive elements. The prohibitive  elements serve to limit the placing on 
the market of seal products from some sources, and effectively ban Norwegian seal products from the EU market. The permissive  elements, by contrast, open the EU market to products that 
conform with the relevant conditions. 
3. Under the Indigenous Communities ("IC") requir ements, which are the first set of restrictive 
conditions, seal products may be placed on the EU market if they derive "from hunts traditionally 
conducted by the Inuit and other indigenous communities and contribute to their subsistence". 
"Inuit" for purposes of these requirements are defined as "indigenous members of the Inuit homeland, namely those arctic and subarctic areas where, presently or traditionally, Inuit have aboriginal rights and interests, [including] Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), 
Kalaallit (Greenland) and Yupik (Russia)". "Other indigenous communities" are, in turn, defined as 
"communities in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country … at the time of conquest or colonisation 
or the establishment of present State boundaries an d who … retain some or all of their own social, 
economic, cultural and political institutions". Products deriving from IC hunts qualify under the IC requirements if: (i) the IC in question has a tradition of seal hunting in the community and in the 
geographical region; (ii) the products in question are at least partly used, consumed or processed 
within the communities according to their traditions; and (iii) the seal hunts in question contribute 
to the subsistence of the community. 
4. Under the Sustainable Resource Management ("SRM") requirements, which are the second 
set of restrictive conditions, seal products may be placed on the EU market if they are "by-
products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources", pr ovided that those products are placed on the 
market on a "non-profit basis", in a "non-systematic way", and are not of a "nature and quantity" 
that indicates they are placed on the market for commercial reasons. 
5. Finally, the third set of restrictive conditions, the Personal Use ("PU") requirements, permit 
the occasional importation of seal products "for th e personal use of travellers or their families", 
namely where those products:  (i) are either worn by  the travellers, or carried or contained in their 
personal luggage; (ii) are contained in the person al property of a natural person transferring his 
normal place of residence from a third country to the Union; or (iii) are acquired on site in a third 
country by travellers and imported by those travellers at a later date. 
II. THE  EU SEAL  REGIME  DISCRIMINATES  INCONSISTENTLY  WITH  ARTICLE I:1  
AND III:4  OF THE  GATT 1994 
6. The EU Seal Regime violates Articles I:1 an d III:4 of the GATT 1994. Th e structure, design 
and expected operation of the EU Seal Regime effectively bars all seal products of Norwegian origin from the EU market. At the same time, because all or virtually all seal products from 
Denmark (Greenland) are expected to qualify und er the IC requirements, the EU Seal Regime 
discriminates in favour of seal products originating in Denmark (Greenland) and against "like" WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-25 - 
 
  products from Norway, contrary to Article I:1. Further, all or virtually all seal products originating 
in Sweden and Finland are expected to qualify und er the SRM requirements. In this way, the EU 
Seal Regime provides treatment that is less favourable for seal products from Norway than for "like" products originating in the European Union, contrary to Article III:4. 
7. For purposes of both these claims, the parties agree that seal products conforming to the 
requirements of the EU Seal Regime are "like" those that do not, including because all such 
products share "identical product characteristics".  
A. The structure, design and expected operation of the IC requirements 
result in discrimination inconsiste nt with Article I:1 of the GATT 1994 
1. The IC requirements are de jure  discriminatory 
8. The Basic Seal Regulation expressly names certain beneficiary Members (or territories within 
Members) as qualifying under those requirements, namely: "Canada", Denmark ("Greenland"), 
"Russia", and the United States ("Alaska"). Thus, according to the words used in the measure , 
goods originating in these Members expressly  qualify for market access opportunities under the 
requirements.  
9. Moreover, for "other indigenous communities ", the words used in the Implementing 
Regulation define, by necessary implication , a limited, additional group of WTO Members whose 
goods also qualify for market access opportunities under the IC requirements. This group is 
defined and closed because a qualifying indigenous  community is one descended from people that 
have "inhabited" a particular territory " at the time of conquest or colonisation or the establishment 
of present State boundaries "; they must have retained "political institutions"; and the community 
must have a " tradition " of seal hunting " in the geographical region ". Based on these criteria, the 
additional qualifying Members under this aspect of the IC requirements constitute a closed group: the European Union (Sweden and, possibly, Finland) and Norway. Irrespective of the facts 
examined in a de facto  analysis, products from other countries where seal products are produced, 
such as Iceland or Namibia, can never qualify under the IC requirements.  
2. The IC requirements result in de facto discrimination in favour of 
products originating in Denmark (Greenland) 
10. For the qualifying countries listed above, the extent  of the benefit differs de facto  from 
country-to-country. Under the IC requirements, the factors that determine the extent  to which a 
Member may benefit from market access are (i) the size of the indigenous community with a seal 
hunting tradition; (ii) the volume of seals harvested by that community; and (iii) whether the 
products of the seal hunt contribute to the subsistence of the community and are partly used, consumed, or processed within the community in question according to tradition. 
11. Based on these criteria, Denmark (Greenland) is , overwhelmingly, the primary beneficiary of 
the IC requirements. In fact, almost the entirety of Greenland’s population is Inuit with a strong seal hunting tradition, and the products derived from the Inuit seal hunt are partly consumed 
within the community and contribute to its subsistence. Further, the Greenlandic hunt represents a 
very important proportion (between 20 and 25 per cent) of the world’s seal hunt, with 189,000 seals hunted in 2006 and an average annual catch of circa 162,000 seals between 2006 and 2009. It is not contested that all, or virtually all of th e Greenland harvest is likely to qualify under the IC 
requirements. 
12. By contrast, the benefits afforded to seal products from other WTO Members that, by the 
structure and design of the EU Seal Regime, may benefit from the IC requirements, are different 
from those of Denmark (Greenland). In particular, virtually no Norwegian seal products will benefit 
under those requirements, either in absolute terms or as a proportion of total Norwegian production. Indigenous communities take part, at times, in the coastal hunt in Norway. However, 
the Norwegian coastal hunt accounted for just 810 seals in total in 2006, which is about 4.5% of 
the total Norwegian hunt during the same year. The indigenous portion of the seals taken in the coastal hunt is a further fraction of the total. Similarly, the evidence on the record shows that the vast majority – around 97 per cent – of seal products originating in Canada will not qualify under 
the IC requirements.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  13. As a result, through its design, structure, an d expected operation, the IC requirements 
confer a significant advantage on seal products that originate in Denmark (Greenland). The competitive opportunity conferred on seal products from this origin is, as a matter of fact, not extended immediately and unconditionally to seal products (finished or intermediate) originating in 
other countries, including Norway. 
B. The SRM requirements result in de facto  discrimination inconsistent with 
Article III:4 of the GATT 1994 
14. Norway does not allege discrimination in respect of the first set of conditions attached to the 
SRM requirements, namely that products derive fr om hunts "regulated by national law", subject to 
a total allowable catch ("TAC") quota established in accordance with a natural resources management plan. Indeed, Norway expects the produc ts of its seal hunt to meet this condition, 
because Norwegian regulations establish a TAC aimed at stabilizing (or reducing, if need be) the 
future population of adult seals
 on the basis of ecosystem-based population models taking into 
account, inter alia , the role of seals as apex predators in the ecosystem, as well as their 
reproductive rates and mortality. 
15. However, the three additional  conditions attached to the SRM requirements – namely, the 
"non-systematic", "non-profit" and "sole purpose" conditions – are expected to operate to the 
preponderant advantage of EU seal products an d to the preponderant disadvantage of "like" 
products from Norway.  
1. The "non-systematic" condition 
16. As shown by the evidence on the record, th e "non-systematic" condition reflects the 
characteristics of seal hunting as it is carried out in the European Union and, therefore, does not 
restrict any seal products originating in the European Union from being placed on the EU market. In fact, during the legislative process, both Finland and Sweden requested to be allowed to 
continue placing their seal products on the market, indicating that the size of their respective 
hunts was small and sporadic. The scientific literature on the interaction between seals and fisheries in EU countries confirms these characteristics. Further, Sweden has 11 recognized bodies 
that can approve the marketing of local seal pr oducts under the EU Seal Regime. It is not 
contested that seal products from Sweden and Finland would meet the "non-systematic" condition.  
17. Conversely, the condition excludes  the products of the sustainable management hunts 
conducted in non-EU countries, including Norway, from access to the EU market. As a result of the 
size of the seal populations involved in the Norw egian seal hunt, which are also reflected in the 
TACs recommended on the basis of scientific population models, the Norwegian seal hunt necessarily  involves larger numbers than the occasional, incidental hunting carried out in the 
European Union.  
18. In fact, the size of the harp seals stocks su bject to Norwegian hunting is approximately 2.01 
million. One estimate showed that the total consumption by harp seals in the East Ice (one of 
Norway’s sealing areas) was about 4 million tons of fish stocks such as cod, herring and capelin 
utilized in wild capture fisheries – that is, almo st twice the size of the catch by the Norwegian 
fishing fleet. Further, at times, key fish stocks in the marine food chain do not spawn in sufficient numbers, leading to harp seals migrating to the coast in Northern Norway to feed, creating 
significant problems. The seals damaged fish catc hes and many drowned after becoming entangled 
in fishing gear. For instance, in 1987, up to 60,000 seal carcasses were found. The government had to support the fishermen and find ways to dispose of seal carcasses.  
19. In light of the ecosystem-based needs outlined above, which result in larger TACs, 
Norwegian seal products would not fulfil the SR M requirements, because they are placed on the 
market "systematically".  
20. In these ways, the design, structure, and expected operation of this aspect of the SRM 
requirements allow marketing of seal products originating in the European Union, while denying non-EU products an opportunity to compete, thereby according imported products treatment less favourable than that accorded to "like" domestic products inconsistent with Article III:4 of the 
GATT 1994. In addition, as discussed in paragraphs 0-0 below, the "non-systematic" condition WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  results in arbitrary and unjustifiable discriminati on between countries where the same sustainable 
resource management conditions prevail. 
2. The "non-profit" and "sole purpose" conditions 
21. The "non-profit" and "sole purpose" conditions, too, are tailored to the reality of the EU seal 
hunt and, therefore, do not restrict seal products originating in the European Union from being 
placed on the EU market. At the same time, th ose conditions effectively exclude from the EU 
market seal products originating in Norway.  
22. In the European Union, the seal hunt is an occasional activity conducted by fishermen, 
incidental to their fishing activities. The economic benefit derived to fishermen from seal hunting consists of the elimination of seals causing problems to fisheries by damaging gears and catches, thereby avoiding costs and losses and securing an improved fishing activity. EU fishermen do not 
need to earn a profit from sealing, because sealin g improves the return on their fishing activities. 
By contrast, Norway’s exploitation of living marine resources includes harvesting on all levels of the ecosystem and makes an important contribution  to the Norwegian economy. In this way, in 
implementing an effective SRM plan, Norway seeks to make use of its marine resources in a 
manner that is both environmentally and economical ly sustainable. As a result of the different 
approach to seal hunting in Norway, no products from Norway would qualify under the "non-profit" 
and "sole purpose" conditions of the SRM requirements.  
23. In sum, the result of the "non-profit" and "sole purpose" conditions is that, while seal 
products from the European Union have access to the EU market, seal products from Norway do not. In this way, the conditions in question modify the competitive opportunities for seal products 
to the detriment of products imported from non- EU countries such as Norway, resulting in "less 
favourable treatment" inconsistent with Article III:4 of the GATT 1994. In addition, as discussed in 
paragraphs 0-0 below, the "non-profit" and "sole purpose" conditions result in arbitrary and 
unjustifiable discrimination between countries where the same sustainable resource management 
conditions prevail. 
C. The European Union posits the wrong legal standard for Articles I:1 and 
III:4 of the GATT 1994 
24. The European Union posits the wrong legal standards for Articles I:1 and III:4 of the 
GATT 1994 in several ways. With respect to de facto  discrimination, the European Union wrongly 
equates the legal standard for "less favourable treatment" under Articles I:1 and III:4 of the 
GATT 1994 and Article 2.1 of the TBT Agreement . It argues that, under each of these three 
provisions, a panel determines whether any detrimental impact on imports results from a legitimate regulatory distinction. However, the Ap pellate Body has already said that the "scope and 
content of these provisions is not the same".
1  Under Articles I:1 and III:4, a panel determines 
whether  a regulatory distinction has a detrimental impact on imports. If so, the legitimacy of that 
distinction may then be examined under a separa te GATT exception, such as Article XX. Under 
Article 2.1, if a regulatory distinction has a detrimental impact on imports, a panel may assess its 
legitimacy under Article 2.1 itself. 
25. Further, the European Union wrongly argues that the legal standard for "less favourable 
treatment" involves a "quantitative" assessment of detrimental impact and a "qualitative" 
assessment of the legitimacy of the regulatory dist inctions. In Norway’s view, whilst there is often 
a quantitative aspect in analysing whether a regulatory distinction alters competitive opportunities to the detriment of imports, that analysis also has important qualitative  aspects relating to the 
design, structure and expected operation of the me a s u r e .  I n d e e d ,  i t  i s  h a r d  t o  c o n c e i v e  o f  t h e  
analysis being conducted without  qualitative aspects. 
III. THE
 EU SEAL  REGIME  IS INCONSISTENT  WITH  ARTICLE XI:1  OF THE  GATT 1994  
AND  ARTICLE 4.2  OF THE  AGREEMENT  ON AGRICULTURE 
26. The PU requirements constitute quantitative import restrictions on seal products that are 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture .  
                                               
1 Appellate Body Report, US – Tuna II (Mexico) , para. 405. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  27. These requirements restrict imports  of seal products by laying down conditions as to the use 
and the nature and quantity of those imports. By their very terms, these conditions apply only at 
the point of importation in respect of products or iginating outside the EU territory. By definition, 
these conditions do not apply "to the like domestic product" in the sense of the Ad Note to 
Article III. Accordingly, the core features of  the PU requirements constitute de jure  a border 
measure, which should be analysed under Articl e XI:1 of the GATT 1994. The PU requirements 
constitute limiting conditions on importation, expressed in terms of "quantity". For the same 
reasons, the PU requirements constitute a "quantitative import restriction" on agricultural products 
that is prohibited by Article 4.2 of the Agreement on Agriculture .  
28. In addition, as an alternative to its claim under Article III:4 of the GATT 1994 that the SRM 
requirements result in de facto  discrimination in favour of seal products originating in the 
European Union, Norway submits that the EU Seal Regime as a whole operates de facto  as a 
border measure which restricts imports of seal products from Norway, but, by virtue of the permissive elements of the SRM requirements, does  not apply to "like" domestic products. Indeed, 
evidence of the design, structure, and expected op eration of the EU Seal Regime suggests that all 
seal products produced in the European Union w ill meet the conditions of the SRM requirements, 
because three of the conditions comprised in  the SRM requirements – namely, the "non-
systematic", "non-profit" and "sole purpose" conditions – are tailored to meet the characteristics of 
seal hunting as it is carried out in Sweden and Finland. Conversely, as discussed in paragraphs 12, 17 and 22 above, the requirements of the EU Seal Regime deny market access to all seal products from Norway.  
29. Viewed in this way, the EU Seal Regime as a whole constitutes a quantitative restriction on 
imports inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture , because the "centre of gravity"
2 o f  t h e  E U  S e a l  R e g i m e  i s  o n e  t h a t  i m p o s e s  a  
restriction – indeed, a complete ban – in relation to imports of seal products from Norway, 
whereas it effectively does not restrict the internal sale of domestic seal products by virtue of the permissive scope of the SRM requirements. 
IV. THE
 EUROPEAN  UNION’S  VIOLATIONS  OF THE  GATT 1994  ARE  NOT  JUSTIFIED  
UNDER  ARTICLE XX 
30. I n  r e s p o n d i n g  t o  N o r w a y ’ s  c l a i m  t h a t  t h e  E U  S e a l  R e g i m e  g i v e s  r i s e  t o  v i o l a t i o n s  o f  t h e  
GATT 1994, the European Union invokes the exceptions provided by Articles XX(a) and XX(b) to 
justify the measure at issue. The European Un ion bears the burden of proving the elements 
required to make out an Article XX defence. It  has, however, failed to meet this burden. 
31. In relation to subparagraph (a), the European Union has failed to prove the existence of the 
complex public morals that it asserts exist. We discuss this further below.3  In particular, it has 
failed to prove the existence of the alleged public  morals that compel discriminatory treatment of 
seal products. The European Union says that its morals regarding seals include norms regarding 
indigenous communities and resource management . Absent proof of the alleged public morals, 
however, the European Union has no basis for asserting that preferring seal products from some origins, over others, is "necessary to protect public morals".   
32. Just as the European Union has not proven the existence of relevant "public morals", so too 
has it failed to demonstrate that the discriminatory treatment of seal products from IC and SRM 
hunts is necessary to  protect the welfare of seals , whether welfare is considered as "animal ... life 
or health" in the sense of subparagraph (b) or as part of  "public morals" under subparagraph (a). 
The European Union argues that its measure is "necessary" because it limits global demand for 
seal products, thereby reducing the number of seal s killed inhumanely every year. However, in this 
way, the European Union defends only the prohibitive  elements of the EU Seal Regime, effectively 
ignoring that the GATT violations arise from the differential  impact of the measure on seal 
products from Norway, Denmark (Greenland) and the European Union itself. This argument does not explain why the differential treatment  of products from these sources is necessary on animal 
welfare grounds.  
                                               
2 Appellate Body Report, China – Auto Parts , para. 171. 
3 See below, paras. 45-47. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  33. Further, even leaving to one side the Europe an Union’s failure to prove that its animal 
welfare objective (whether as part of a public morals or as such) compel discrimination , the EU 
Seal Regime makes no "material" contribution4 to animal welfare for another reason. Specifically, 
even if the prohibitive  aspects of the measure were to reduce the number of seals killed in 
unfavoured sources ( quod non ), this contribution would be undermined by the permissive aspects 
of the measure under the IC and SRM requiremen ts, which permit seals to be killed, without 
regard to animal welfare, in the favoured sources, which could readily meet all EU demand with 
seal products derived from seals suffering poor er animal welfare outcomes than seals in the 
Norwegian hunt.    
34. Norway has put forward three alternatives that would be less restrictive, but which would 
contribute to all of the European Union’s legitimate objectives to an equal or greater extent than 
the EU Seal Regime. These alternatives would also contribute to the policy objectives invoked by 
the EU under Article XX of the GATT 1994 to an eq ual or greater extent than the EU Seal Regime.5 
35. As to the requirements of the chapeau to Ar ticle XX, Norway contends that the EU Seal 
Regime introduces several aspects of arbitrary or unjustifiable discrimination between countries 
where the same conditions prevail and a disguised restriction on international trade.6  Thus, even 
if the European Union were to show that its measure were provisionally justified under one of the 
subparagraphs of Article XX ( quod non ), the European Union’s defence under Article XX would still 
fail because the measure is applied in a manner contrary to the requirements of the chapeau. 
V. THE  EU SEAL  REGIME  IS A TECHNICAL  REGULATION  WITHIN  THE  MEANING  OF 
ANNEX  1.1 OF THE  TBT AGREEMENT  
A. It is uncontested that the EU Seal  Regime applies to identifiable 
products and compliance with it is mandatory 
36. The EU Seal Regime is a technical regulation within the meaning of Annex 1.1 of the 
TBT Agreement , because (i) it applies to identifiable products; (ii) it lays down product 
characteristics, or alternatively, their relate d processes and production methods, including 
applicable administrative provisions; and (iii) compliance with its requirements is mandatory. It is 
not contested that the EU Seal Regime applies to identifiable products; namely, all products. No 
product can be derived from seals unless it satisfies the requirements set out in the measure. Nor is it contested that compliance with  the EU Seal Regime is mandatory. 
B. The EU Seal Regime lays down product characteristics or their related 
processes, including applicable  administrative provisions 
37. In EC – Asbestos , the Appellate Body explained that "p roduct characteristics" could include 
"any objectively definable ‘features’, ‘qualities’, ‘attributes’, or other ‘distinguishing mark’ of a 
product", as well as related "characteristics" that are not "intrinsic" to a product, such as "means 
of identification, the presentation and the appearance of a product".
7  The Appellate Body also 
stated that whether a measure comprising both prohibitive and permissive elements "lays down 
product characteristics" cannot be determined unless the measure is examined as a whole. The 
permissive elements in a measure have no autonomous legal significance in the absence of the prohibitions. Therefore, permissive elements of a measure must be considered together with, and 
not in isolation from, the prohibitive elements.
8   
38. The EU Seal Regime sets out in a negative and positive manner – that is, through the 
prohibitive and permissive aspects of the measure – whether products may and may not possess certain physical characteristics, i.e., that they contain seal. Indeed, the three sets of requirements 
under the EU Seal Regime in and of themselves  prescribe the conditions that must be fulfilled for 
seal products to gain access to the EU market, formally and substantively combining the permissive and prohibitive elements of the measur e. Failing fulfilment of the conditions, a seal 
                                               
4 Appellate Body Report, Brazil – Retreaded Tyres , para. 210. 
5 For further discussion of these alternativ es, see below, paras. 45-53 and 61-64 below.  
6 Norway’s arguments on arbitrary and unjustifiab le discrimination are summarized in paras. 74-80 
below. 
7 Appellate Body Report, EC – Asbestos , para. 67. 
8 Appellate Body Report, EC – Asbestos , para. 64. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  product may not be marketed in the European Union.   Th e legal situation is therefore the same as 
the one confronting the Appellate Body in EC – Asbestos , in which the measure established when 
and under what conditions products marketed in the European Union could, and could not, contain asbestos.  
39. The European Union suggests that the measure in EC – Asbestos  was different because "the 
exceptions [in that dispute] permitted certain products which were identified according to their intrinsic characteristics". By contrast, it argues, the permissive elements of the three sets of 
marketing requirements – which it calls "exceptions" – make reference to characteristics, such as 
the type of hunters and the traditions of communities and the purpose of the hunt, which do not relate to the intrinsic features of, the product. This argument is misplaced, because it is incorrect to analyse the three requirements in isolation from the totality of the measure, considering all 
components of the measure in combination. More over, the presence of these other "conditions" 
does not affect the characterization of the measure as a technical regulation.  
40. Alternatively, the EU Seal Regime also lays down "related processes". The panel in EC – GIs  
said that a "process" is "a systematic series of ac tions or operations directed to some end, as in 
manufacturing…".
9  The IC and SRM requirements lay down "processes" that "relate" to defined 
product characteristics, that is, when a product containing seal can be marketed. The IC 
requirements prescribe a "process" involving a particular course of action (a traditional seal hunt 
by specified persons) with a defined end (the  production of seal products for community 
subsistence). For the SRM requirements, the course of action concerns the purpose of the hunt (sustainable management of marine resources); the way in which the hunt is conducted (it must 
be regulated at national level pursuant to an SRM plan); and the way in which the seal products 
are marketed (not-for-profit, non-commercial nature and quantity); and the action also has a defined end (the sale of SRM by-products). 
41. Finally, the EU Seal Regime prescribes the "applicable administrative provisions" that must 
be satisfied for products to contain seal. For instance, parties wishing to market seal products under the IC and SRM Requirements must obtain a certificate to prove that the requirements set 
out in either exception are met. EU residents wi shing to take advantage of the PU requirements 
must, "upon arrival" in the European Union, present to customs authorities "a written notification of import", details of the product characteristics, and "a document giving evidence that the products were acquired in the third country concerned".  
VI. THE
 EU SEAL  REGIME  VIOLATES  ARTICLE 2.2  OF THE  TBT AGREEMENT  
42. The EU Seal Regime violates Article 2.2 of the TBT Agreement because it is more trade-
restrictive than necessary to fulfil legitimate objectives. Under Article 2.2 of the TBT Agreement , a 
panel must: (i) ascertain the objectives of the EU Seal Regime; (ii) assess whether those 
objectives are legitimate; and (iii) assess whether the EU Seal Regime is "necessary" to pursue its legitimate objectives, which, as explained below involves, a relational analysis.  
A. Identification of the objectives of the EU Seal Regime  
1. Objectives revealed by the me asure, the legislative history and 
other evidence 
43. The Appellate Body has stated that "the importance of a panel identifying with sufficient 
clarity and consistency the objective or objectives pursued by a Member through a technical 
regulation cannot be overemphasized".
10  The Appellate Body has also cautioned that panels must 
objectively assess the objectives pursued by a measure, having regard to "the texts of statutes, 
legislative history, and other evidence regardin g the structure and operation" of the measure.11    
44. On the basis of "the texts of statutes, legislative history, and other evidence regarding the 
structure and operation of the measure", Norw ay identifies that the measure pursues six 
objectives: (i) the protection of animal welfare, including responding to consumer concerns 
regarding animal welfare; (ii) the protection of the economic and social interests of indigenous 
                                               
9 Panel Report, EC – Trademarks and Geograph ical Indications (Australia) , para. 7.510.  
10 Appellate Body Report, US – COOL , para. 387. 
11 Appellate Body Report, US – COOL , para. 371. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  communities; (iii) the encouragement of the sustainable management of marine resources; (iv) 
allowing consumer choice; and (v) preventing consumer confusion; and (vi) harmonizing the 
internal market. The parties agree that the Pane l need not address the objective of harmonizing 
the internal market, since any measure adopted at the EU level would achieve that objective. 
2. The European Union argues, but fails to prove, that the EU Seal 
Regime aims to protect public morals 
a. The European Union’s description of the measure reveals internal 
inconsistencies  
45. In response to Norway’s argument that the EU Seal Regime pursues several separate 
objectives, the European Union argues that it is not pursuing two of the objectives identified by 
Norway, namely, consumer choice and the prevention of consumer confusion. However, this 
position is contradicted by the preamble and provis ions of the Basic Seal Regulation, as well as a 
recent judgment of the EU General Court.12   
46. In respect of the other identified objectives, the European Union says that they all are 
elements of a single umbrella objective consisting of the protection of public morals. The European 
Union argues it is morally wrong to kill seals inhumanely except when justified by benefits to humans or other animals, such as those reflecte d in the IC and SRM requirements. EU consumers 
aid or abet an immoral act when they are confronted with seal products in EU shops, except where 
the seal products comply with marketing requirements under the EU Seal Regime. Further, it is not immoral to commercially exploit seal products in the European Union, provided the products are not placed on the EU market.  
47. The moral norms purportedly protected by the EU Seal Regime are thus replete with 
contradictions and inconsistencies. 
b. The European Union fails to prove the existence of its alleged 
public morals 
48. The parties agree that "public morals" refers to a "standard[] of right and wrong conduct 
maintained by or on behalf of a community or nation".
13  A standard is distinguished from a mere 
public concern because it connotes the existence of a societal  rule or norm  with precise and 
specific content that unambiguously delineates right and wrong conduct, and which is generally 
applied  within the community .  
49. The European Union bears the burden of provin g the existence of the different moral norms 
alleged. However, the evidence submitted by the Eu ropean Union to substantiate its position that 
the EU Seal Regime responds to the "public morals" held in the European Union – (i) the measure at issue; (ii) surveys of the EU public opinion; and (iii) scientific evidence – does not substantiate 
the existence of the specific norms alleges wi th all their precise and conflicting features. 
50. First, the measure at issue reflects no "s tandard of right and wrong conduct" to be 
consistently applied; but rather a variety of different and inconsistent standards applying to the 
treatment of seals and the commercial exploitation of seal products. Although institutions, 
including democratic institutions, can take action in pursuit of a vast variety of objectives, the mere fact that the institutions in question, or the decision-making process, are "democratic and open", does not in itself demonstrate that the measure pursues the protection of "public morals".  
51. Second, the surveys do not evidence the exis tence of the "public morals" invoked by the 
European Union. To the contrary, the surveys (1 ) highlight an extremely low level of knowledge 
about seal hunting; (2) did not use techniques that would provide information on the moral views 
                                               
12 General Court of the European Union (Seventh Chamber), Judgment, Inuit Tapiriit Kanatami v. 
European Commission , Case T-526/10 (25 April 2013), available 
at  http://curia.europa.eu/juris/ document/document.jsf;jsessionid=9ea7d0f130d5708fecd272ff44e2ba90b6184
274b9b4.e34KaxiLc3eQc40LaxqMbN4OaheOe0?text= &docid=136881&pageIndex=0&doclang=EN&mode=req&
dir=&occ=first&part=1&cid=233545 (last checked 11 May 2013).  
13 Panel Report, US – Gambling , para. 6.465; see also Panel Report,  China – Publications and 
Audiovisual Products , para. 7.759. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  respondents; and (3) do not even elicit information on the different normative aspects of the 
umbrella public moral that the European Union invokes.   
52. Third, although the EU invokes scientific evidence as grounds for the umbrella public moral, 
the evidence that was before the European Union during the legislative process does not support 
the existence of the purported public moral norms, in particular the elements pertaining to IC and 
SRM hunts, and the allowance of commercial exploitation other than placing seal products on the market. Indeed, the scientific evidence shows that the hunts to whose products the EU Seal 
Regime grants market access pose greater animal welfare problems than those whose products 
are denied market access. 
53.  Thus, the evidence provided by the European Union does not support its assertion that the 
EU Seal Regime responds to the "public morals" held in the European Union, with all its peculiar 
nuances and contours. Instead, the legislative hist ory shows that the peculiar choices made by the 
EU legislator were motivated by political expedi ency and policy choices, and not public morals. 
Hence, Norway contends, therefore, that the diffe rent elements of the EU Seal Regime cannot be 
understood as pursuing a single, coherent "pub lic morals" objective, but rather must be 
understood as pursuing separate, competing object ives; namely, animal welfare; protecting the 
economic and social interests of indigenous communities; promoting the sustainable management 
of marine resources; promoting the personal choice of travelling EU consumers; and preventing 
consumer confusion. 
B. The objective of discriminating in favo ur of particular communities is not 
"legitimate" within the meaning of Article 2.2 
54. Norway accepts that the protection of anim al welfare, the sustainable management of 
marine resources, the encouragement of consum er choice, and the prevention of consumer 
confusion are "legitimate" objectives for purposes of an Article 2.2 analysis. With respect to the 
European Union’s alleged public morals, if the Panel agrees this as an "objective", Norway 
considers this "legitimate" for purposes of an analys is under Article 2.2, but only to the extent that 
such public moral relates to "animal welfare". 
55. However, Norway does not consider that the objective of protecting the economic and social 
interests of indigenous communities is "legitimate" in the sense that term is used in Article 2.2 of the TBT Agreement . This is because the European Union’s pursuit of this objective necessarily 
involves the introduction of a regulatory trade preference for products of certain origins, to the 
detriment of products from other sources, such as  Norway. The granting of such selective special 
and differential treatment cannot be "legitimate" under Article 2.2 because it runs counter to the cornerstone non-discrimination principle, which is reflected in the TBT Agreement  itself. If a 
Member wishes to infringe that principle by gran ting special and differential treatment to products 
from some sources because of economic or social considerations, it must obtain express authorization within  the WTO legal system, in the form of a WTO waiver or in line with specific 
provisions of the covered agreements en abling special and differential treatment. 
56. In support of its position, the European Union refers to certain instruments of international 
law addressing the rights of indigenous peoples. However, none of the cited instruments compel the granting of discriminatory trade preferences. Moreover, if other sources of international law 
could serve as a basis for justifying discriminatory trade restrictions under Article 2.2 of the 
TBT Agreement , the lack of harmony between the TBT Agreement  and the other covered 
agreements would prejudice one of the cornerst one principles of WTO law, namely, the non-
discrimination principle that is reflected, inter alia , in Articles I:1 and III:4 of the GATT 1994 as 
well as the TBT Agreement  itself. Thus, the mere fact that instruments of international law call for 
the favourable consideration of certain producers does not, and cannot, result in unfettered 
authority for a WTO Member to grant discriminatory trade preferences through technical 
regulations. 
C. The EU Seal Regime is more trade-restrictive than necessary to fulfil its 
legitimate objectives 
57. Having considered, first, the objectives of the EU Seal Regime and, second , the legitimacy of 
these objectives (concluding that certain of the European Union’s objectives are not legitimate), WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  Norway demonstrates that the EU Seal Regime is "more trade-restrictive than necessary" to fulfil 
its legitimate objectives.  
58. The assessment of the necessity of trade restrict iveness in a technical regulation, requires a 
weighing and balancing of: (i) the trade-restrictiveness of the technical regulation; (ii) the degree 
to which it contributes to its legitimate objectives; and (iii) the risks non-fulfilment would create. 
In weighing and balancing these different elements, the panel is typically aided by a comparison with less trade-restrictive alternatives put forward by the complainant. If a less trade-restrictive 
alternative is reasonably available, and makes a contribution to the measure’s objectives that is at 
least equivalent to that of the challenged measure, the challenged measure is more trade restrictive than necessary for purposes of Article 2.2 and Article XX. 
1. The EU Seal Regime is "trade-restrictive"  
59. The EU Seal Regime is trade restrictive. The legal conditions that must be satisfied in order 
to comply with the IC, SRM, and PU requirements have "a limiting effect"
14 on the ability of a 
trader to place seal products on the market. Seal products cannot be lawfully marketed without 
complying with one set of restrictive conditions, which constitutes a restriction on international 
trade. Moreover, the IC and SRM requirements introduce discrimination between different sources of supply, which is also trade restrictive.  
2. Contribution 
60. Under Article 2.2 of the TBT Agreement , a panel must establish the " degree  of 
contribution"
15 made by the measure towards achievemen t of its objective. If there is no 
contribution, then consideration of an alternative is not required because, absent a contribution, 
the measure is not "necessary" under Article 2.2.16  If a technical regulation makes an overall 
positive contribution to achieving the objective, the level of that contribution will be compared with 
the level of contribution that would be achieved by a reasonably available and less-restrictive 
alternative measure.  
a. The EU Seal Regime fails to contribute to animal welfare or the 
alleged public morals relating to animal welfare 
61. Beyond the general, hortatory wording in the Basic Regulation, there is nothing  explicit in 
the EU Seal Regime apt to affect the animal we lfare of seals that are killed to produce seal 
products, in particular, those that may be sold in the European Union. In particular, the EU Seal Regime does not condition market access on compliance with animal welfare requirements. At the 
moment, it is possible to place on the EU market se al products from seals killed by drowning, seals 
shot in the water, and seals killed in a hunt with extremely high struck and lost rates, like those 
from favoured sources under the measure.  
62. Nor is the EU Seal Regime apt to reduce the number of seals killed inhumanely, since the 
volume of products able to be placed on the EU market from sources with poor animal welfare regulation matches or exceeds the total size of the EU market prior to the Regime. Conversely, 
animal welfare-compliant products, among others from Norway, are unable to access the EU 
market. 
63. Further, contrary to the European Union’s argu ments, the EU Seal Regime does not shield 
the EU public from being confronted with seal products, including seal products derived from "an 
immoral act (the killing of seals in an inhumane way)". Seal products may be placed on the EU 
market or imported under the EU Seal Regime an d consumers are not even informed of the fact 
that the products in question contain seal, let alone of whether the seals were caught humanely.  
64. F i n a l l y ,  a l s o  c o n t r a r y  t o  t h e  E U  a r g u m e n t s ,  t h e  E U  S e a l  R e g i m e  d o e s  n o t  p r o h i b i t  t h e  
"commercial exploitation" of seal products "within the EU territory": seal products may be placed 
on the EU market, or imported regardless of comp liance with animal welfare requirements. The EU 
                                               
14 See Appellate Body Report, US – Tuna II (Mexico) , para. 319 (quoting Appellate Body Report, China – 
Raw Materials , para. 319); US – COOL , para. 375. 
15 Appellate Body Reports, US – Tuna II (Mexico) , para. 315 (emphasis added);  US – COOL , para. 373. 
16 Appellate Body Report, US – COOL , para. 376 and fn 748 thereto. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-34 - 
 
  Seal Regime also does not restrict transit across the European Union, processing for export in the 
European Union under an inward processing procedure, production for export, or sale at auction houses for export, for any seal product irrespective of the type of hunt. Thus, EU citizens are 
allowed to participate in the commercial exploitation of seal resources in a variety of ways. 
b. Contribution to sustainable resource management 
65. As noted above, the SRM requirements provide:  first, that seal hunts must be conducted on 
the basis of a natural resources management plan using scientific population models and applying 
the ecosystem-based approach; second, that the se al hunt must not exceed the TAC;  and third, 
that the SRM hunt must be for the "sole purpose" of marine resource management, and that the by-products on these hunts must be marketed on a "not-for profit" and "non-systematic" basis.  
66. It is not contested that the first two above-mentioned conditions promote  the objective of 
sustainable resource management or that the Norwegian hunt complies with both these 
requirements. 
67. However, the "sole purpose", "not-for profit" and "non-systematic" conditions do not 
contribute to the objective of resource manage ment, and indeed, undermine it. They provide a 
legal basis for the European Union to cherry pick and favour seal products derived from "small-scale" SRM hunts in the European Union, like Sweden and Finland.  
68. The "non-systematic" requirement discriminates in favour of EU Member States and to the 
detriment of third countries, including Norway, inconsistently with Article III:4 of the GATT 1994. 
It serves as a quantity-based distinction that is irrational and arbitrary because the size of the seal quota is based on rational scientific principles that ensure the achievement of the objective of 
managing marine resources in a sustainable mann er. The size of the quota – and therefore the 
"scale" of the hunt – may, therefore, be larger in some countries than others, precisely  to ensure 
that the SRM objective is achieved.  
69. The "sole purpose" and "non-profit" requirem ents are equally irrelevant for, and also 
undermine, the sustainable management of resources. The European Union suggests that 
"exploitation of natural resources" and commercial seal hunting are inherently at odds with 
efficient marine resource manage ment. However, as Norway explained above, this is flawed. 
Indeed, from a sustainable management resource  perspective, allowing the hunter to make a 
profit creates a favourable economic incentive that contributes positively to achieving the SRM goals. The European Union’s suggestion that the hunts conducted in Sweden are somehow 
non-commercial, as explained above, is also inco rrect, as Swedish fishermen derive a commercial 
advantage from killing seals that endanger fish stocks and gear.  
70. In its arguments about these conditions, the EU has sought to draw a distinction between 
commercial and non-commercial seal hunting. Norway considers this distinction to be an illusory 
one, since all seal hunts that result in seal products have commercial dimensions. The Greenland Government itself notes that its seal hunting is both subsistence oriented and a commercial 
activity . In other words, it is conducted for profitable financial returns. The SRM requirements 
allow fishermen to kill seals as pests that endanger fish stocks and that cause problems to fisheries by damaging gears and catches. Fishermen who kill seals for these purposes have commercial motives: they are killing seals to benefit commercial fishing activities by protecting 
"fish stocks" and "gear and catches". The legislative history also suggests that the fisherman is 
entitled to earn "income" compensating for the cost of his time. Further, other commercial parties in the supply chain, such as processors, distributo rs, and retailers, can earn profits from the sale 
of the seal products. 
c. Contribution to consumer choice and to the prevention of 
consumer confusion  
71. The EU Seal Regime does not prevent consumer confusion and undermines consumer 
choice. To recall, seal products allowed onto th e EU market under the IC or SRM requirements do 
not even have to bear a label indicating that they contain seal , let alone provide information on 
compliance with animal welfare. The EU Seal Regime has in fact made the situation worse for 
many consumers, because those consumers will now believe that trade in seal products is banned. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-35 - 
 
  As a result, those EU consumers that care whether they purchase seal products may unwittingly 
purchase unlabelled seal products.  
72. Further, in respect of consumer choice, the EU Seal Regime allows consumers to exercise 
their personal choice provided they travel abroad , by purchasing seal products for their "personal 
use" or that of "their families".17  However, it denies that same choice to consumers within the 
European Union.  
d. Arbitrary or unjustifiable discrimination 
73. In its Article 2.2 case law, the Appellate Body  has reasoned that the sixth recital of the 
preamble reflects an important aspect of the balance between the TBT Agreement’s  trade 
liberalizing objective and its objective to allow Members to retain regulatory freedom.18  Just as 
the trade liberalizing provisions of the GATT 1994 are counterbalanced by the general exceptions 
found in Article XX, which allows Members to purs ue the objectives reflected in the subparagraphs 
to that provision, so long as the measures taken  are "not [] applied as a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail", so too is this 
same balance reflected in the provisions of the TBT Agreement . Specifically, Article 2.2 permits  
Members to adopt trade-restrictive technical regula tions in order to contribute to the legitimate 
objectives of the regulation at a certain level of protection. However, this authority is not 
unfettered, since, in taking measures to achieve it s legitimate objectives, a Member is "subject to 
the requirement that such measures are not applied in a manner that would constituted a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail".   
74. The EU Seal Regime draws arbitrary distinctions between countries where the same 
conditions prevail, and thereby constitutes a me ans of arbitrary and unjustifiable discrimination 
and a disguised restriction on international trade.  
75. First, as regards animal welfare, the same  animal welfare conditions prevail in all countries 
where seals are hunted: seals in Denmark (Greenland) are not less susceptible to unnecessary 
pain, distress and suffering than seals hunted elsewhere, such as in Norway. This same "condition" relating to the vulnerability of seals is common to the situation of all countries. However, the 
European Union disregards  animal welfare risks with respect to countries whose seal products 
comply with the IC or SRM requirements, by allowing the marketing of products originating from those countries despite poor animal welfare outcomes in their hunts.
19  At the same time, the 
European Union gives decisive significance  to these same risks in connection with seal hunting in 
other countries, where hunting predominantly does not meet these requirements, such as Norway, 
despite good animal welfare outcomes in those hunts.20   
76. Second , as regards encouraging sustainable resource management, the "not for profit", 
"sole purpose" and "non-systematic" conditions at tached to the SRM requirements are rationally 
disconnected from the objective of allowing the sustainable management of marine resources, and thereby introduce arbitrary or unjustifiable discrimination between countries that have sound, 
science-based management plans that establish quotas for seal hunting. 
77. For purposes of the sustainable management of marine resources, all countries having 
sound, science-based marine resource management  plans that establish a quota for seal hunting 
are countries "where the same [SRM] conditions prevail". In all countries, the size of the seal 
quota is based on rational scientific principles  that ensure achievement of the objective of 
managing marine resources in a sustainable manner.  
78. Under the "non-systematic" condition, a country may be able to place all of its seal products 
on the EU market only if the permissible seal catch under an SRM plan is sufficiently small that 
                                               
17 Basic Seal Regulation, Article 3(2)(a). 
18 Appellate Body Report, US – Clove Cigarettes , para. 95. 
19 See paras. 61-62 above. 
20 For instance, Norway’s regulations prohibit the shooting of seals in the water and catching of seals in 
nets, Regulation Relating to the Conduct of the Seal Hunt in the West Ice and East Ice , adopted by the 
Norwegian Ministry of Fisheries and Coastal Affairs as Regulation of 11 February 2003 No. 151, amended by 
the Regulation of 11 March 2011 No. 272 (original and unoff icial translation) ("Conduct Regulation"), Exhibit 
NOR-15, Sections 6 and 11. Furthermore, Norwegian authorities require the presence of an inspector.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  sales are "non-systematic" (e.g.  Sweden or Finland). Conversely, another country may not do so, 
because the seal catch is too large to allow for the disposal of all of its seal products in a "non-systematic" manner (e.g. Norway). Discriminating between such countries on the basis of the number of seals that the respective country may take, and put on the market each year, without 
regard to the quota size determined in order to maintain a balance in the ecosystem, is "arbitrary 
or unjustifiable discrimination" in terms of the regulatory objective, in violation of Article 2.2 of the TBT Agreement . Further, the "sole purpose" and "not for profit" conditions remove an important 
economic incentive for commercial actors to participate in the efficient implementation of SRM 
plans. This frustrates the successful implementation  of such plans, making implementation likely 
depend on government funding, and not harnessing  the efficiencies of the market. The limitations 
also frustrates the efficient use of seals, as a natural resource, once they have been harvested, 
which is contrary to basic principles of sustainable resource management. This introduces a further 
element of arbitrary and unjustifiable discriminat ion between countries where the same conditions 
prevail. 
79. Third, as regards consumer confusion, the EU Seal Regime involves conditions that not only 
make no contribution to preventing consumer confusion, those conditions also fail to deal even-
handedly with the products of countries where the same conditions prevail in respect of this 
regulatory objective also. This introduces another element of arbitrary and unjustifiable 
discrimination, since unlabelled seal products from all countries are equally  capable of deceiving 
EU consumers who are unaware of the seal-content of products placed on the EU market. Thus, products originating from Denmark (Greenland), marketed under the IC requirements, and 
products from the European Union, marketed under the SRM requirements, pose the same risks of 
consumer confusion as products from other countries. Yet, the EU Seal Regime permits seal products from Denmark (Greenland) and the European Union, while banning them from other 
countries.  
80. Finally , just as in US – Shrimp , the primary targets of the "unilateral and non-consensual"
21 
EU Seal Regime are third countries. Although  Norway emphasized the importance of the 
sustainable use of marine resources, and offered to negotiate international standards for seal 
hunting, the European Union has not engaged "in serious, across-the-board negotiations"22 with 
Norway on seal hunting. By contrast, the European Union was prepared to accommodate the interests of Denmark (Greenland) and of certain EU Member States. As in US – Shrimp , the 
willingness of the European Union to accommodate the interests of some, but not other, countries 
is "plainly discriminatory" and "unjustifiable".
23 
3. Risks non-fulfilment would create 
81. The EU Seal Regime accepts significant risks of non-fulfilment for all of its legitimate 
objectives. In particular, the European Union concedes that it has chosen to accept non-fulfilment of the animal welfare objective. The EU legislators chose to grant privileged market access to seal 
products from indigenous communities and EU fish ermen because, in those cases, the benefits to 
humans or other animals outweighs  the risk of suffering being inflicted upon seals. Moreover, 
because the EU Seal Regime provides no information  to consumers on whether products on the EU 
market contain seal, the measure contributes to consumer confusion and prevents consumers from 
being able to act upon any personal convic tions they may have about seal products. 
4. Less trade restrictive alternatives 
82. As Norway has shown that the EU Seal Regime does not contribute to the four objectives, 
and is therefore not "necessary", the Panel could end its analysis under both Articles 2.2 and 
Article XX here. In any event, however, Norway offers three less trade-restrictive alternatives that are reasonably available that would make an equivalent or greater  contribution to all of the 
legitimate objectives of  the EU Seal Regime.  
 The first alternative consists of the removal of the three sets of marketing 
requirements;  
                                               
21 Appellate Body Report, US – Shrimp , para. 171. 
22 Appellate Body Report, US – Shrimp , para. 166. 
23 Appellate Body Report, US – Shrimp , para. 172. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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   A second alternative consists of restricting access to the EU market to those seal 
products that are demonstrated to comply with animal welfare requirements 
through (i) the adoption by the European Union of animal welfare (and related 
enforcement) requirements for the killing of seals; (ii) conditioning market access on certification of conformity with those animal welfare requirements; and (iii) labelling to inform consumers that a product contains seal and is derived from a 
seal hunted in accordance with the prescribed animal welfare requirements; 
 With respect to the SRM requirements, a third alternative would allow market 
access for seal products derived from sustainable resource management hunts, 
without requiring that the hunt be for the "sole purpose" of sustainable resource management; and that sales by the hunter be "non-systematic" and "not for 
profit". If it were necessary to contribute further to animal welfare, a modified 
version could couple removal of the contested conditions with the addition  of 
explicit animal welfare requirements.  
83. With respect to the first and third alternatives, there is no question that these options are 
"reasonably available" to the European Union as they would simply involve the removal of requirements that currently exist under the EU Seal Regime.  
84. The second alternative, which involves the adop tion of added requirem ents by the European 
Union, is also reasonably available to the European Union. During the course of the proceedings, the European Union attempted to cast doubt on the feasibility of laying down and enforcing appropriate animal welfare standards in the killin g of seals. It argued that seal hunting is 
"inherently inhumane", because insurmountable obstacles make it impossible  to hunt seals in a 
manner that avoids pain, stress or other forms of suffering. In the European Union’s view, these "obstacles" include:  various environmental factors, such as wind and cold, which affect accuracy 
in shooting; the significance of delays between shooting seals and administration of the further 
fail-safe killing steps (i.e., hakapik and bleeding out); and the allegedly frenetic pace of the Norwegian seal hunt. 
85. Norway has offered ample evidence showing that it is not impossible  to hunt seals 
humanely, or to lay down and enforce standards that result in the humane killing of seals. This is also confirmed by documents from the legislative history. In relation to the Norwegian hunt, Norway has shown that: (i) the Norwegian seal hunt is not characterized by competitive pressure 
on sealers; (ii) factors such as low visibility, wind, swells and waves, and cold do not adversely 
affect hunters or the accuracy of shooting, and in practice steps are taken on the Norwegian hunt to ensure they do not; (iii) the presence of veterinary inspectors on board every sealing vessel 
ensures a high level of compliance with relevant regulations and animal welfare standards.  
86. The European Union has also argued that no alternative measure could achieve the level of 
protection desired by the EU legislator. Howeve r, Norway has shown that the level of animal 
welfare protection actually  achieved by the EU Seal Regime (i.e., its contribution) is lower than 
what would be achieved under Norway’s alternative measure. 
87. As for the certification and labelling components, Norway refers to various schemes that 
have already been adopted that illustrate the practical feasibility of certifying compliance with 
animal welfare or other standards, and re liably labelling conforming products.  
VII. THE
 EUROPEAN  UNION’S  CONFORMITY  ASSESSMENT  PROCEDURE  IS 
INCONSISTENT  WITH  ARTICLE 5  OF THE  TBT AGREEMENT 
A. The European Union’s conformity a ssessment procedure is inconsistent 
with Article 5.1.2 of the TBT Agreement  
88. The European Union’s conformity assessment pr ocedure, aimed at ensuring compliance with 
the IC and SRM requirements and based on the Commission’s appointment of recognized 
certification bodies, creates an unnecessary obstacle to international trade in seal products and is, therefore, inconsistent with Article 5.1.2 of the TBT Agreement .  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  89. Such procedure does not include the designation of a "default" recognized body able to issue 
conformity certificates in the absence of third-party recognized bodies. This institutional lacuna makes the effectiveness of its conformity assessmen t procedures depend entirely on the extent of 
the willingness of third parties to act as recogniz ed bodies – an element over which traders in 
conforming seal products have no control.  
90. The conformity assessment procedure entered into force on 20 August 2010, that is, on the 
same day of the entry into force of the prohibitive elements of the EU Seal Regime. As a 
consequence, when the three restrictive requir ements established under the EU Seal Regime 
entered into force, trade in conforming  seal products was necessarily  and inevitably  prohibited, 
because the European Union failed to establish a designated recognized body, or procedures for the establishment of such a body, in due time. Mo reover, following the entry into force of the EU 
Seal Regime, it took the European Union more than two years to establish recognized bodies 
which, at the time of the filing of this summary, cover only conforming products from Sweden and 
Denmark (Greenland). Therefore, for a period of 28 months following entry into force, the 
European Union’s conformity assessment procedures created a ban on trade in seal products that 
conform  to the IC and SRM requirements and that, in principle, enjoy access to the EU market.  
91. The European Union could have easily avoided  this highly trade-restrictive situation by 
designating a recognized body able to issue confor mity certificates pending the approval or in the 
absence of third-party recognized bodies. Such a system would ensure that the conformity assessment procedures always  function to enable traders to secure approval for conforming seal 
products, whether or not a third party is willing an d approved to serve as a recognized body. If the 
European Union did not wish to establish a re cognized body capable of functioning from 
20 August 2010, it should – by way of alternat ive – have given interested third parties an 
adequate opportunity to apply sufficiently far in advance of the entry into force of the EU Seal 
Regime, so as to allow recognized bodies to be established before  the Regime entered into force 
on 20 August 2010. 
92. The European Union lays the blame for the failings of its procedures on the lack of successful 
applications by third parties. However, a WTO Member cannot contract out of its WTO obligations, 
by making third parties responsible for the performance of those obligations. Further, "the intervention of some element of private choice does not relieve [a WTO Member] of responsibility 
under the [covered agreements]".
24  In light of the above, the European Union’s conformity 
assessment procedure results in an unnecessary barrier  to trade, inconsistent with Article 5.1.2 of 
the TBT Agreement . 
B. The European Union’s conformity a ssessment procedure is inconsistent 
with Article 5.2.1 of the TBT Agreement  
93. The conformity assessment procedure fails to ensure that the procedures concerned are 
undertaken and completed as expeditiously as possi ble, inconsistently with Article 5.2.1 of the 
TBT Agreement . Article 5.2.1 suggests that a violation of this provision is established only if the 
more rapid conduct of conformity assessment procedur es is "possible". Again, it would be perfectly 
"possible" for the European Union to conduct its pr ocedures more rapidly than by imposing infinite 
delay, namely, by designating a body that could act in timely fashion, without making its 
procedures depend on the desire of third party entity to seek, and secure, approval as a 
recognized body; or by giving interested third parties adequate time to become recognized in advance of the entry into force of the EU Seal Regime.  
94. Instead, the above-mentioned institutional lacuna results in a situation where procedures 
can never be commenced with respect to seal products originating in countries other than Sweden, 
and therefore do not meet the basic requiremen t that they be undertaken and completed, as 
"expeditiously as possible ". In short, infinite delay does not meet a requirement of timeliness. The 
European Union has therefore violated its obligation, under Article 5.2.1 of the TBT Agreement , to 
ensure that conformity assessment procedures ar e undertaken and completed as expeditiously as 
possible. 
                                               
24 Appellate Body Report, Korea – Various Measures on Beef , para. 146; see also Appellate Body Report, 
US – Tuna II (Mexico) , paras. 236-240. 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  VIII. THE  APPLICATION  BY THE  EUROPEAN  UNION  OF THE  EU SEAL  REGIME  NULLIFIES  
AND  IMPAIRS  BENEFITS  ACCRUING  TO NORWAY  UNDER  THE  GATT 1994 
95. The European Union’s adoption of the EU Seal Regime nullifies and impairs benefits accruing 
to Norway under the GATT 1994 within the meanin g of Article XXIII:1(b) thereof. The measure at 
issue does so by: (i) effectively barring Norway’s seal products from accessing the EU market;  
and (ii) modifying the competitive position of Norwegian seal products vis-à-vis "like" seal products that are permitted to be marketed under the IC or SRM requirements, as well as non-seal products 
that compete with seal products. In this way, the European Union has upset the negotiated 
balance reflected in the Tokyo Round and Uruguay Round outcomes. Because Article XXIII:1(b) applies "whether or not the measure conflicts" with other GATT provisions, Norway’s claim under this provision stands irrespective of whether or  not the Panel finds the EU Seal Regime to be 
inconsistent with the GATT 1994.  
96. There is no contest between the parties that the tariff concessions negotiated between 
Norway and the European Union during the To kyo and Uruguay Rounds constitute "benefits" 
protected under Article XXIII:1(b). However, with respect to the nullification and impairment of 
those benefits, the European Union contends that Norway has failed to show that: (i) the EU Seal Regime could not have been reasonably anticipated by Norway;  and (ii) the EU Seal Regime 
upsets the competitive relationship between Norwegian seal products and other products.  
97. As well settled in WTO case law shows, there is a rebuttable presumption that a measure 
could not reasonably have been anticipated in cases where it was adopted subsequent  to the 
making of the relevant tariff concessions.
25  The EU Seal Regime came into effect in August 2010, 
16 years after the conclusion of the Uruguay Round and 30 after the conclusion of the Tokyo 
Round. These facts raise a presumption that Norway did not reasonably anticipate the adoption of the EU Seal Regime.  
98. In attempting to rebut such presumption, th e European Union provides a short history of 
what it labels "public morals concerns" with regard to the killing of seals, and refers to a series of measures, not all of which are measures of European countries, of which four precede the 
conclusion of the Tokyo Round and five precede the conclusion of the Uruguay Round. However, 
the policy objective of such measures was generally to protect seals from unsustainable exploitation. Accordingly, Norway could, at mo st, have anticipated a measure of a type that 
pursued conservation ends. Since Norway carefull y manages its TACs for seals based on scientific 
evidence, Norway could not reasonably have envisaged that the "market access guarantees" 
secured from the European Union would be nullified for other reasons. Further, even assuming arguendo  that at the time of the Tokyo and Uruguay rounds some of the current EU Member 
States had adopted measures regulating trade in  seal products for reasons of "public morals 
concerns", there was no reason for Norway to expect that the same  moral values exhibited by a 
small number of Member States would become shared by the community of the dramatically 
enlarged EU-27 as a whole.
26   
99. Moreover, the European Union fails to demonstrate that the imposition of a measure of the 
same type as the measure at issue27 could have been reasonably anticipated by Norway. To recall, 
the EU Seal Regime is not structured, designed or expected to operate as a ban on the marketing 
seal products. Rather, the placing on the market is allowed for products: (i) falling within the IC 
requirements, which are expected to operate to a llow virtually all products of Greenland to be 
sold; and (ii) complying with the SRM and PU requirements, under which virtually all EU products 
are eligible to be sold. Nor does the EU Seal Regime contain any provisions whatsoever  addressing 
animal welfare. To the contrary, as explained in paragraphs 0-0 above, the measure allows  the 
marketing of products deriving from hunts that present the poorest  animal welfare outcomes and 
excludes products deriving from hunts ensuring higher animal welfare standards. 
                                               
25 Panel Report, Japan – Film , para. 10.71.  
26 When the Tokyo Round was concluded in April 1979, the European Communities comprised just 
9 member states, and when the Uruguay Round was concluded in December 1993 it comprised just 12 
member states. 
27 Any expectation of a measure must be of the same  time as that actually adopted: Panel Report, 
Japan – Film , paras. 10.79, 10.124 and 10.125;  Panel Report, EC – Asbestos , para. 8.291(a). WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX B-3 
INTEGRATED EXECUTIVE SUMMARY OF TH E ARGUMENTS OF THE EUROPEAN UNION 
1. INTRODUCTION 
1. The measure at issue in this dispute (the "EU Seal Regime") provides for a general 
prohibition of the placing on the market of all seal products. That prohibition is subject to 
three exceptions: the Indigenous Communities  ("IC") exception, the Marine Resources 
Management ("MRM") exception and the Travelle rs exception. The EU disagrees with the 
Complainants' characterization of the EU Seal  Regime as containing three self-standing 
"requirements". Besides, this characterization is  at odds with the characterization included 
in the Complainants' panel requests. Consequently, in the event that the Panel were to decide that, as alleged by the Complainants, the EU Seal Regime cannot be characterized 
as a General Ban subject to three exceptions, the European Union hereby requests the 
Panel to find that Norway's and Canada's pane ls requests do not meet the requirements of 
Article 6.2 of the DSU and reject all the claims submitted by them. 
2. The EU Seal Regime seeks to address deep  and longstanding moral concerns of the EU 
public with regard to the presence in the EU market of seal products. Those concerns arise 
from the fact that seal products may have been obtained from animals killed in a way that 
causes them excessive pain, distress, fear or other forms of suffering.  
3. The EU public's moral concerns find adequate support in qualified scientific opinions, 
according to which: Canada's and Norway's sealing regulations fail to prescribe a humane killing method; there are inherent obstacles which render it impossible to effectively 
employ humane killing methods on a consistent basis; and there is evidence that, largely 
as a result of those inherent obstacles, even the inadequate killing methods prescribed by Canada's and Norway's regulations are not effectively and consistently applied in practice.  
4. The IC exception and the MRM exception are based on moral grounds connected to the 
objective of the EU Seal regime. When assessing the moral implications of seal hunting it is essential to take into account, together with the welfare of seals, the purpose of each 
type of hunt. It would be morally wrong to endanger the subsistence of the Inuit and other 
indigenous communities by prohibiting the placin g on the market of seal products resulting 
from hunts traditionally conducted by those communities. In turn, prohibiting the placing on the market, on a non-profit basis, of seal products resulting from small-scale hunts 
conducted for the exclusive purpose of ensu ring a sustainable management of marine 
resources would be unnecessary and counterproductive in light of the objective pursued by the EU Seal Regime. 
5. The EU Seal Regime is neither protectionist nor discriminatory. Both the General Ban and 
the IC and MRM exceptions apply indistinctly with regard to all seal products, whether domestic or imported, and irrespective of the country of origin. Nor does the EU Seal 
Regime create unnecessary obstacles to trade. The General Ban is necessary in order to 
achieve the high level of fulfilment of the intended policy objective which was desired by the EU legislators and the EU citizens. None of the alternative measures identified by the complaining parties would make an equivalent contribution to that objective. 
2. BACKGROUND 
6. IDENTIFICATION OF THE POLICY OBJECTIVE OF THE MEASURE 
7. The immediate objective of the EU Seal Regi me is to harmonise the requirements applied 
by the EU Member States with regard to the marketing of seal products, so as to prevent 
obstacles to intra-EU trade in those or other products. It is obvious, however, that, if this were the only objective, it could have been  achieved through the adoption of measures 
with a very different content, ranging from the full liberalization of trade in seal products 
to a complete ban.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  8. The General Ban of the Basic Regulation resp onds to the moral concerns of the EU public 
in two different manners. First, because of the way in which seals are killed, the EU public 
regards seal products from commercial hunts as morally objectionable and is repelled by their availability in the EU market. The General Ban addresses directly this concern by 
prohibiting the placing on the EU market of se al products, so that the members of the EU 
public do not have to confront those products . Second, the EU public does not wish to be 
accomplice to the killing of seals in a manner which causes them excessive suffering. By 
prohibiting the placing on the EU market of seal products, the General Ban reduces the 
global demand for those products.  
9. By enacting a general prohibition of the placing on the market of seals products, the 
European Parliament and the EU Council have chosen a high level of fulfilment of the 
intended policy objective.  
10. The IC exception and the MRM exception are not "rationally disconnected" from the 
objective sought by the EU Seal Regime. In assessing the moral implications of seal 
hunting it is essential to take into account, together with the welfare of the seals, the 
purpose of each type of hunt. 
11. Some hunts are conducted primarily for commercial purposes, such as obtaining skins for 
manufacturing inessential clothing items. According to the moral assessment of the EU 
legislators and the EU public, in the case of these hunts it is warranted to adopt a high level of protection against the risk that seals will experience excessive suffering when they 
are killed. In contrast, other seal hunts ha ve a non-commercial purpose, such as the 
subsistence of indigenous communities or the sustainable management of natural 
resources. In such cases, it may be justified, or even required, from a moral point of view  
to tolerate a higher level of risk to the welfare of seals. 
12. The IC exception and the MRM exception are based on moral grounds rationally connected 
to the objective of the EU Seal Regime. If the EU Seals Regime allows the placing on the market of seal products under those two exceptions it is because products qualifying for 
those exceptions do not raise the same moral concerns as products from commercial seal 
hunts. In view of this, the EU legislators concluded that it was unnecessary to prescribe, in addition to the conditions attached to each exception, some form of labelling requirement.  
2.1. LEGITIMACY OF THE POLICY OBJECTIVE 
13. According to the prevailing view in the Eu ropean Union, the way in which humans treat 
animals is a matter of public morals: humans are not free to treat and use animals as they wish, but ought instead to conform to cert ain moral standards of right and wrong. 
Furthermore, such standards must be defined and enforced by the public authorities. 
These views have led to the adoption of laws aimed specifically at protecting animals against human behaviour.  
14. Currently all EU Member States have in place animal protection laws based on public moral 
considerations. Animal welfare is also recognised as a value of concern to the European Union and has been enshrined by the Treaty  of Lisbon in Article 13 of the TFEU. 
15. Like the European Union, other WTO Members restrict the importation and/or marketing of 
certain animal products on public moral grounds which are often related, at least in part, 
to the way in which the animals are killed.  
2.2. SCIENTIFIC GROUNDS FOR THE MEASURES 
16. The European Union showed that, according to some qualified scientific opinions, Canada's 
and Norway's sealing regulations fail to prescribe a humane killing method; there are inherent obstacles which render impossible the effective and consistent implementation of 
any humane killing method; and there is evidence that, largely as a result of those 
inherent obstacles, even the inadequate ki lling methods prescribed by Canada's and 
Norway's regulations are not effectively and consistently applied in practice.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  17. It is not the Panel's task to choose one amon g the various expert opinions available or to 
substitute its own scientific judgement. Rather, the Panel's task should be limited to examine whether, in so far as the policy choices which are reflected in the measure at issue purport to be based on science, such choices can find adequate support on qualified 
scientific opinions, irrespective of whether they represent the majority view.
1 
18. The measure at issue takes into account the opinion issued by the European Food Safety 
Authority (EFSA) on 6 December 2007 at the request of the European Commission. Having 
considered EFSA's opinion and the scientific evidence reviewed by EFSA, the EU legislators 
concluded that the risks to the welfare of seals which result from the inherent obstacles to the effective and consistent application of humane killing methods in commercial seal hunts documented by such evidence are excessive and morally unacceptable. While in 
selecting a level of protection of public morals it is appropriate to take into account 
available relevant scientific evidence, as the EU legislators did in this case, the choice of a level of protection of public morals is not a scientific judgement. It is a policy decision 
involving a moral judgement which, in the pr esent case, was the exclusive prerogative of 
the EU legislators.  
19. In addition to the EFSA opinion, reference should be made to two recent reports, which 
have reviewed the available scientific evidence pertaining to the Canadian commercial 
hunt. These are, first, the Richardson (2007) report, and second, the Butterworth (2012) report. The Richardson (2007) report concludes that, while it might be possible to prescribe a killing technique that would fit within accepted guidelines of humane slaughter, 
Canada’s commercial seal hunt can never be made acceptably humane because of the 
conditions in which the hunt takes place. Th e Butterworth (2007) report concludes that 
Canada's commercial seal hunt adopts procedures, and has measurable outcomes that do 
not meet internationally recognized st andards of humane slaughter. There are 
unacceptable (and unlawful) things being done to animals for profit in this hunt. The evidence clearly shows that the actions of governments in prohibiting seal product trade 
are, and will continue to be, justified.   
2.2.1. Recommended killing methods 
20. Various veterinary reports, including Bu rdon and Smith, have recommended a killing 
method involving a "three-step" process: First, the seal must be effectively stunned  by a 
blow to the head or by shooting the animal in the head. Second, the stunned seal must be 
checked for irreversible unconsciousness. Seals which are not irreversibly unconscious 
must be immediately re-stunned. Third, the seal must be bled out to confirm or achieve 
death by terminating blood flow to the brainste m. Each of the three steps must be carried 
out effectively  and in rapid succession. Any undue delay in completing the second or third 
steps may result in a situation in which the animal experiences severe suffering.
 Moreover, 
seals should not be shot in the water or in any circumstance when it is possible that the 
carcass cannot be recovered. 
21. Drawing on the above opinions, EFSA reco mmended that: The time between shooting and 
monitoring of the state of the shot animal shou ld be short, and seals should be bled out as 
soon as possible and, preferably immediat ely, after the effectiveness of the stunning 
process has been verified (which in turn should be as soon as possible after stunning). Moreover, unless they are in the water, animals should not be moved, i.e. gaffed, hauled 
or moved from the position they have come to rest, until it has been confirmed that they 
are dead or irreversibly unconscious, or have been bled-out. Furthermore, if animals are in water or located where they cannot be bled-out  immediately, they should be monitored as 
soon as possible for consciousness and, if not dead or irreversibly unconscious, they 
should be re-stunned or killed. Last, shooting animals where the likelihood of reaching them quickly is reduced or questionable (e.g. on thin and loose pack ice, open deep water) poses an unknown risk of causing avoidable pain, distress and suffering.    
22. When considering the above recommendations it must be recalled that EFSA deliberately 
omitted to take into account the "ethical aspects" of killing seals and that its 
                                               
1 Cfr. Appellate Body Report, EC – Asbestos , para. 178.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  recommendations only sought to minimise  the suffering experienced by seals by 
addressing the avoidable risks. 
23. Butterworth (2012) stresses that the different versions of the three-step method 
recommended by previous veterinary experts involve an unacceptable compromise with 
commercial interests and do not ensure a human e killing. In order to qualify as humane, a 
method for killing seals would have to comply with the following generally accepted principles of humane slaughter: Minimizing di stress experienced by the animal prior to and 
during stunning; rendering the animal unconscious (and therefore insensitive to pain) 
without the need to repeat the application of the stunning method; confirming unconsciousness by monitoring for multiple indicators of consciousness; delivering death without delay through an accepted euthanasia method; and, ensuring that 
unconsciousness persists until death occurs . He concludes, nevertheless, that the review 
of available data indicates that the abov e generally accepted principles of humane 
slaughter cannot be carried out effectively and consistently in the commercial seal hunt.  
2.2.2. Canada's commercial hunt 
24. Although the Canadian regulations purport to prescribe a humane killing method based on 
the 'three-step' process, they fail to do so. Instead , gaps, loopholes and imprecise wording 
in the regulations allow for sealers to engage in behaviours that cause excessive pain and 
distress. The deficiencies observed in Canada's hunting regulations affect each of the three 'steps': the method of stunning, the confirmation of unconsciousness and the bleeding.  
25. Even if Canada's regulations were amended in order to address the deficiencies regarding 
the three-step process, there are, according to qualified scientific opinions, a number of 
inherent obstacles  that would still make impossible, in practice, the application of a 
humane killing method in an effective and consistent manner. Indeed, it is presumably in 
recognition of such inherent obstacles that no commercial sealing regulations in existence 
today prescribe a humane killing method. These ob stacles are, essentially, of three types: 
obstacles resulting from the unique physical environment  in which commercial seal hunting 
occurs; obstacles resulting from the intense competitive pressure and other time 
constraints  that characterise the commercial seal hunt; and obstacles relating to the 
inability of the responsible authorities to effectively monitor  the killing and enforce the 
hunting regulations.  
26. The ice conditions and extreme weather that make up the physical environment of the seal 
hunt make it impossible, in practice, for sealers to apply effectively and consistently the different steps of the prescribed killing me thod, let alone a genuinely humane method. 
Accurate and effective clubbing of seals becomes even more difficult while sealers 
scramble across broken, unsteady and slippery ice floes and attempt to maintain their balance without falling into the ocean, and the same is the case for shooting. In practice, 
extreme weather conditions, including strong winds, high ocean swells and waves, 
extreme cold and low visibility (snow, freez ing rain, fog) make accurate shooting even 
more difficult. The Royal Commission on Seals and Sealing recognised in its 1986 report that many Canadian hunts take place, or have taken place, under conditions which make it 
impossible to obtain an acceptably high prop ortion of kills with head shots. Moreover, 
Butterworth (2007) concluded that, since it is im possible to ensure a high level of accuracy 
when shooting from a boat, even when using telescopic sights, hunting seals with rifles 
should be viewed as inherently inhumane and it is highly improbable that any 
improvements would lead to internationally acceptable standards of welfare. Furthermore, EFSA concluded that there is a risk of a targeted animal being hit with insufficient force 
and accuracy to cause instantaneous death or  unconsciousness, and possibly escaping 
wounded.  
27. Because of deteriorating ice conditions, the sealers are often unable to disembark to 
retrieve the seals. According to EFSA, consid ering the safety issues associated with the 
difficult working conditions often encountered during certain seal hunts and that animals 
may be shot from a distance, a regulation requiring the animal to be bled immediately after stunning may not always be practicable, depending on the hunt. Moreover, Smith 
recognised that the ice, sea and weather conditions present greater challenges for hunters 
to carry out all three steps of stunning, checking by palpation of the skull, and bleeding. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  The European Union agrees of course that the se alers' personal safety should not be put at 
risk. However, if the three-step process cannot be properly conducted due to concerns about the safety of the sealers, the conclusion to be drawn is that seals should not be shot 
or clubbed in the first place, and not that sealers should be allowed to dispense with that 
process. What is more, ice conditions enhance the risk of wounded seals slipping into the 
water and diving beneath the surface ("struck and lost").  
28. Canada's commercial hunt is a highly competitive industry, with staggering numbers of 
seals killed in a very short period of time  by a large number of sealers. Every year 
Canada's DFO sets a quota for harp seals and allocates it according to region and vessel size. As a result, the hunt effectively turns into a race between sealers to collect as many skins as possible, as quickly as possible, until the quota assigned to each region is 
reached. In addition to the quota system, a number of other factors contribute to make 
Canada's commercial hunt a frenetic affair: the high risk of damages to the vessels and crew and the corresponding insurance costs; the high costs of operating a vessel (such as 
fuel or maintenance items); and the fact that most vessels are licensed for other, more 
lucrative fisheries, with overla pping seasons. Under considerable pressure to work quickly, 
for long hours and in extreme weather conditions, sealers are very susceptible to fatigue. 
This, as noted above, compounds the risk  of inaccurate clubbing and shooting. 
29. Another inherent obstacle to the effective im plementation of humane killing methods is the 
inability of the authorities to monitor the hunt and enforce the regulations. In 1986 the Royal Commission on Seals and the Sealing Industry reported on the inability of the 
fisheries officers to adequately monitor the seal hunt. They noted that the area that they 
must patrol is very extensive, the number of sealers is large, and sealing operations are multifaceted. For these reasons, it is impossible to keep all parts of the seal hunt under 
close supervision at all times. Moreover, Smith observed that the physical realities of the 
Canadian harp seal hunt present a significant set of challenges for observation, supervision, monitoring and enforcement, and he  also drew attention to the limitations of 
aerial surveillance. Furthermore, he identified conflicts of interest, which could affect the 
willingness of the authorities to effectively monitor and enforce compliance with the sealing regulations. 
30. The inherent obstacles described in the preceding section have the consequence that, in 
many cases, the killing methods prescribed by the existing hunting regulations are either 
disregarded or ineffectively applied. EFSA reported that it has been observed by several independent groups that sealers in the Canadian hunt, on many occasions do not comply 
with the regulations. Burdon reached a similar conclusion, while Butterworth (2007) stated 
that a maximum of only 15% of seals they observed on the videos were killed in a manner that conformed to the Marine Mammal Regulations. EFSA also found that there is strong 
evidence that in practice, effective killing do es not always occur. The veterinary reports 
examined by EFSA include evidence showing that clubbing is not always performed 
effectively, and they also provide clear evid ence of inaccurate and ineffective shooting. 
Moreover, all the reports examined by EFSA agr ee that in many cases the second and third 
steps (monitoring for consciousness and bleeding) are either omitted or not performed 
rapidly enough. 
2.2.3. Norway's commercial hunt 
31. Norway's regulations are in some respects stricter than Canada's. In particular, Norway's 
regulations, unlike Canada's, prohibit shooting seals in the water. But they are deficient in other respects.  
32. Some of the deficiencies have been openly admitted by Norway's own regulators. In 
November 2010 Norway's Fisheries Directorate issued for consultation a proposal to amend the hunting regulations. That proposal provided inter alia  for the repeal of those 
provisions that permit hooking and hoisting the seals on board before bleeding them. The 
proposal was strongly opposed by both sealers and ship owners. As a result, the provisions 
allowing the bleeding of seals on board were left unmodified by the amending regulation 
eventually adopted by the Fisheries Directorate on 23 March 2011. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  33. There is very little scientific evidence on th e effectiveness of the prescribed killing methods 
in the conditions in which the Norwegian commercial hunt takes place. The VKM report acknowledges that scientific, peer-reviewed studies and scientific data on the actual 
performance of the Norwegian seal data are very limited. More specifically, VKM 
recognised that: the scientific data on the effi ciency of the Norwegian hakapik are limited; 
only a limited number of studies is available from Norwegian seal hunts which investigate how effective rifles are; and there are no official statistics on numbers of percentages of 
seals struck and lost, either alive or dead during Norwegian hunts. To some extent the 
lack of evidence can be filled by examining the reports drawn by the inspectors on board 
of the sealing vessels. Those reports though cannot be regarded as independent evidence, since the inspectors are government employees. Moreover, the inspection reports are 
often very brief and uninformative.  
34. Norway's commercial hunt takes place in the Greenland Sea ("West Ice") and in the 
Barents Sea/White Sea ("East Ice"), under very similar environmental conditions as 
Canada's commercial hunt. For that reason, the observations made above in section 2.4 
with regard to the inherent obstacles to the effective implementation of a humane killing 
method resulting from environmental factors are equally relevant with regard to Norway's 
commercial hunt.  
35. Unlike Canada's regulations, Norway's regu lations prescribe the presence of an inspector 
on board of each vessel. Nevertheless, in practice it is very difficult for the inspector to keep an adequate overview over all th e activities of the hunt at all times.
 Moreover, 
inspectors live closely together with the sealers over extended periods of time. As a result, 
they are exposed to intense social pressure. They may easily compromise and tolerate practices which are against the regulations because, like the sealers, they come to 
perceive such practices as 'usual' and 'unavoidable' for the commercial success of the 
hunt. 
36. Inspection reports provide further evidence that, in practice, seals are not always 
effectively killed in a humane manner. The Norwegian sealers have repeatedly voiced 
discontent with the existing regulations. Th e inspection reports provide evidence that 
those regulations are often disregarded, even if formal charges are very rarely brought 
against the offenders. Mention should be made, in particular, of a recent and exceptionally 
detailed report of 2009 by Inspector Liv Greve- Isdahl concerning a sealing expedition by 
the vessel Kvitungen, which provides ample evidence, inter alia , of careless and very 
inaccurate shooting; a high rate of 'struck and lost' animals; hooking of animals, despite 
good ice conditions and when animals where not obviously dead; excessive delays in 
bleeding the animals; and use of semi-automatic weapons (Kalashnikov). 
2.2.4. Reliability of the evidence  submitted by the European Union 
37. The Complainants assert that Burdon (2001) and Butterworth (2007) are not peer 
reviewed and thus are less credible studies. However, Burdon (2001) and Butterworth (2007) were produced for reasons other than publication and both were reviewed by peers far more exhaustively than would have occurred in a formal peer review for publication. 
Moreover, the attempts by the Complainants to challenge the scientific credentials of the 
experts who authored the studies relied by  the European Union, are baseless. The 
qualifications of all these experts go well beyond their experiences observing seal hunting. 
Many of them are internationally renowned, distinguished scientists in the field of humane 
slaughter, and with their expertise have evaluated commercial sealing in comparison with other large-scale commercial slaughter operations.  
38. With regard to the facilitation of some studies by NGOs, the European Union does not 
believe that scientific research becomes unreliable merely because it has been commissioned or facilitated by NGOs with a non-commercial interest. The key point is whether the scientists involved produce unbiased scientific information. Besides, Canada's 
own evidence is questionable in view of Dr P.Y. Daoust's close links to the Canadian fur 
industry. Moreover, the allegation that the ev idence submitted by the EU is "dated" is 
spurious. Not only were the changes made to Canada's regulations in 2009 very minimal 
and inconsequential, but also the studies reli ed upon by the European Union focus on the 
inherent obstacles to humane killing. Furthe rmore, more than two thirds of the video WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  evidence submitted by the EU was produced after the most recent regulatory changes 
occurred in Canada. 
39. The EU has also demonstrated that video evidence is reliable and credible, in that it is 1) 
more accurate than first hand observation/memory; and 2) obtained in a random fashion. 
That EFSA regarded video evidence as reliable is confirmed by the fact that the EFSA 
opinion is largely based on studies which made extensive use of video evidence. Moreover, Canada's position that video evidence is unreliable is difficult to reconcile with the fact that 
Canada claims to rely on video evidence for monitoring the hunt or with the fact that the 
Canadians authorities have sometimes laid charges against sealers based on video evidence of commercial sealing supplied by NGOs.  
2.3. EVIDENCE OF THE PUBLIC MORAL CONCERNS 
40. The European Union has identified various types of evidence that may be relevant in order 
to establish the existence of "public morals". The starting point of the enquiry should be the measure itself, including its preamble and the legislative history. The structure and 
design of the EU Seal Regime is fully consistent with the public morals objective invoked 
by the European Union. To begin with, the prea mble to the Basic Regulation confirms that 
it was enacted in response to the "serious concerns" expressed by the public with regard 
to the way in which seals are killed. Moreover, the Impact Assessment accompanying the 
European Commission proposal confirms that, by improving the welfare of seals, the proposal aimed at addressing the public's moral concerns. Furthermore, the amendments 
to the European Commission proposal made by the EU legislators were aimed at 
responding to the public morals concerns of the EU citizens, which the EU legislators 
considered had not been sufficiently addressed by the proposal. Last, the Basic Regulation was enacted in order to replace and pre-empt the measures already taken, or about to be 
taken, by some EU Member States. 
41. The EU Seal Regime seeks to uphold a standard of conduct according to which it is morally 
wrong for humans to inflict suffering upon animals without sufficient justification. This 
basic rule reflects a long-established tradition of moral thought, which in its modern form 
is usually designated as "animal welfarism"."Animal welfare" and morality, albeit different, are inseparable.  
42. The moral standard which the EU Seal Regime seeks to uphold appears to be shared by 
the Complainants themselves, and in particular by Norway. The same standard also 
inspires other measures and policies of the European Union, pursuant to Article 13 of the TFEU, while all EU Member States have in place animal protection laws based on 
public moral considerations. Moreover, opinion polls conducted in various EU Member 
States show a strong public demand for a ban on the marketing of seal products. This demand indicates the unacceptability of seal hunting. What is more, all these actions are 
aligned with actions taken by international organizations. Among others, the OIE has 
considered to develop a standard with regard to the commercial killing of seals. Nevertheless, the discussions soon revealed that the humane killing standards developed by OIE for the commercial slaughtering of animals for food cannot be transposed to the 
commercial seal hunts due to the environmental conditions in which the latter take place.  
43. The European Union has referred to various measures restricting trade in animal products 
applied by other Members on public moral grounds related to animal welfare, including 
measures restricting trade in seal products, as evidence of the fact that the objective 
pursued by the EU Seal Regime is a legitimate objective and, more specifically, that it falls within the scope of Article XX(a) of the GATT.  
44. Last, the European Union considers that, once it is established that the basic standard of 
conduct which the EU Seal Regime seeks to uphold is part of the European Union's "public morals", it is not necessary to prove that each of the individual outcomes from the application of that rule in specific situations is regarded by the EU public as a separate rule 
of public morality on its own. Governments are not required to test the populace´s support 
for each and every element of an envisaged pi ece of legislation based on public morals 
before enacting it. Indeed, as illustrated by the measures at issue in both U.S. - Gambling WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  or China – Publications and Audio-visual Products,  regulations on public morals can be 
very complex and do not lend themselves easily to that kind of testing. Instead, all that may be necessary is to show that the subject matter of the measure at issue (e.g. the protection of animals) is regarded as an issue of public morals in the responding Member. 
3. THE
 TBT  AGREEMENT 
3.1. APPLICABILITY OF THE TBT AGREEMENT 
45. The complainants' claims under Articles 2.1, 2.2, 5.1.2 and 5.2.1 of the TBT Agreement 
require that the EU seals regime is a "technical regulation", according to Annex 1.1 of the 
TBT Agreement. Pursuant to the interpretation which the Appellate Body developed in EC – 
Asbestos and summarised in EC – Sardines , a document must meet three criteria to fall 
within this definition: first, it must apply to an identifiable product or group of products. 
Second , it must lay down one or more characteristics of the product. These product 
characteristics may be intrinsic, or they may be related to the product. They may be prescribed or imposed in either a positive or a negative form. Third, compliance with the 
product characteristics must be mandatory. These three criteria apply cumulatively. 
Contrary to the allegations of Canada and Norway, the EU seals regime is not a technical regulation since it does not meet the second criterion, i.e. it does not lay down product 
characteristics 
46. According to WTO jurisprudence,
2 a document fulfilling the second criterion for a technical 
regulation needs to "lay down", in positive or  negative form, one of three types of subject 
matter: (1) "product characteristics" which encompass (a) intrinsic features and qualities 
to the product, and (b) related "characteristics" (2) "processes and production methods" 
which are "related" to such product characteristics; or (3) "administrative provisions" which are "applicable" to such product characteristics or their related processes and 
production methods. The analysis of whethe r a document prescribes such subject matter 
needs to examine the measure as an integrated whole, taking into account, as appropriate, the prohibitive and the permissi ve elements. Furthermore, the determination 
of whether the measure constitutes a technical regulation must be made in the light of the 
characteristics of the measure at issue and the circumstances of the case. 
47. The EU seals regime does not prescribe any of the subject matter covered by the second 
criterion of a "technical regulation" within the meaning of Annex 1.1 of the 
TBT Agreement. The regime does not lay down "product characteristics"; be it intrinsic or 
related characteristics in either positive or negative form. More specifically, it is not a technical regulation to the extent that it prohibits products which exclusively consist of 
seal. With regard to products not only containing seal but also other ingredients ("mixed" 
products) the EU seals regime does not constitute a simple ban of seal ingredients in their natural state. Canada and Norway primarily argue that the EU seals regime lays down 
intrinsic product characteristics in negative form by providing that all products may not 
contain seal. However, their argument ignores that the EU seals regime is not limited to prohibiting the placing on the market of products  containing seal, but that it also provides 
for three exceptions under which products containing seal may be placed on the EU 
market.  
48. As the Appellate Body held in EC-Asbestos , "the proper legal character of the measure at 
issue cannot be determined unless the measure is examined … as an integrated whole, 
taking into account, as appropriate, the prohibitive and the permissive elements". The 
Appellate Body also explicitly stated that "t he scope and generality of those prohibitions 
can only be understood in the light of the exceptions  to it". The characterization of the EU 
seals regime under Annex 1.1 of the TBT Agreement in the light of its exceptions is 
particularly important since most claims of the complainants under the TBT Agreement actually focus on the exceptions. Therefore,  the EU Seal Regime must be examined as an 
integrated whole taking into account the three exceptions.  None of the three exceptions 
lays down product characteristics within the meaning of Annex 1.1 of the TBT Agreement. 
To the extent that the EU Seal Regime provides for exceptions from the ban, it does so not by relying on product characteristics or their related processes or production methods as 
                                               
2 Appellate Body Report, EC-Asbestos , and Appellate Body Report US-Tuna II (Mexico)   WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  conditions, but by relying on conditions that are not related  to product characteristics. The 
EU seals regime as an integrated whole , therefore, does not lay down "product 
characteristics" within the meaning of Annex 1.1 of the TBT Agreement. 
49. Canada and Norway further submit that the EU Seal Regime establishes process or 
production methods within the meaning of A nnex 1.1 of the TBT Agreement. The EU does 
not agree with Canada and Norway, and submits that the EU Seals Regime does not regulate any processes and production me thods. The ban read together with the 
exceptions allows the placing on the market of  seals products depending on the identity of 
the hunter (for the IC exception) and the purpose of the hunt (for the IC and the MRM 
exception), which have nothing to do with methods for the production of seals products. 
50. Canada and Norway also argue that certai n procedural provisions in the Implementing 
Regulation relating to the operation of th e three exceptions constitute "applicable 
administrative provisions" within the meaning of Annex 1.1 of the TBT Agreement. The EU 
argues that whereas the procedural requiremen ts set out in the Implementing Regulation 
may be considered as administrative provisions, they do not constitute "applicable 
administrative provisions" within the mean ing of Annex 1.1 of the TBT Agreement. 
Annex 1.1 of the TBT Agreement only addresses those administrative provisions which 
apply to product characteristics or their related processes and production methods . 
Already the term "applicable" in the wording  of Annex 1.1 of the TBT Agreement indicates 
that only administrative provisions which apply to the subject matters mentioned in the first part of the definition may qualify a document as a technical regulation. This is further 
supported by the context . The reference to "applicable administrative provisions" 
immediately follows the mention of "product characteristics or their related processes and production methods". The linkage to these two categories of subject matter is expressed 
by the conjunctive term "including".  
3.2. ARTICLE 2.1 OF THE TBT AGREEMENT 
51. Canada argues that the EU Seal Regime, through the IC exception, de facto  violates the 
MFN obligation under Article 2.1 of the TBT Agreement, because it accords less favourable 
treatment to Canadian products as compared to like products from Greenland. Further, Canada submits that the EU Seal Regime, through the MRM exception, de facto  violates 
the national treatment obligation under Article 2.1 of the TBT Agreement, because it treats 
Canadian seal products less favourably than domestic seal products.  
52. As argued above, the European Union consid ers that the TBT Agreement does not apply in 
the present case since the EU Seal Regime, including any of its exceptions, does not 
amount to a "technical regulation" in accordan ce with Annex 1 of the TBT Agreement. In 
any event, assuming that the TBT Agreemen t is applicable in the present case, the 
European Union considers that Canada's claim that the EU Seal Regime violates Article 2.1 
of the TBT Agreement must fail. In particular, the EU Seal Regime, through any of the 
exceptions challenged by Canada, does not discriminate  between the group of imported 
products and the group of domestic/other origin like products. Any difference in treatment between certain sub-categories of like products within those groups stems from a 
legitimate regulatory distinction  that is designed and applied in an even-handed manner. 
As the EU explained in its reply to Question 29 of the First Set of Questions from the 
Panel , this regulatory distinction made by the EU Seal Regime between conforming and 
non-conforming seal products is primarily based on the "purpose" of the hunt. In this 
sense, the EU Seal Regime distinguishes among seal hunts i) for commercial purposes; ii) 
for subsistence purposes (of the Inuit and other indigenous communities); and iii) for the 
purpose of the sustainable management of marine resources. 
3.2.1. Legal standard 
53. According to WTO case-law,3 in order for a complaining Member to prevail in a de facto  
claim under Article 2.1 of the TBT Agreemen t, like the one brought by Canada in the 
present case, the following elements must be proven: (i) that the measure at issue 
                                               
3 Appellate Body Report, US-Tuna II (Mexico),  Appellate Body Report, US-Clove Cigarettes , Appellate 
Body Report, US-COOL  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  constitutes a "technical regulation" within the me aning of Annex 1.1; (ii) that the group of 
imported products must be "like" the group of domestic/other origin products; and (iii) 
that the treatment accorded to the group of imported products must be less favourable 
than that accorded to the group of "like" domestic/other countries products. With respect 
to the last element, in cases where no de jure  discrimination is claimed (i.e., when the 
measure is origin-neutral on its face), it is not sufficient for the complaining Member to show that the technical regulation at issue modifies the conditions of competition in the 
relevant market to the detriment of the group of imported  products vis-à-vis the group of 
like domestic/other origin products. Rather, it needs to be examined whether the 
detrimental impact on imports stems exclusively from a legitimate regulatory distinction rather than reflecting discrimination  against the group of imported products. It is against 
this legal standard that the European Union examined the merits of Canada's claim against 
the IC and MRM exceptions.  
3.2.2. Likeness 
54. The European Union submits that Canada's identification of "like" products is partial and 
skewed towards finding discrimination in the present case. The Panel is not bound to limit its analysis to those products identified by Canada in its first written submission, but is 
required to determine the group  of domestic and/or other origin products that are "like" 
the group  of products imported from the complaining Member. The European Union 
considers that the relevant group of products with respect to Canada's claim under Article 2.1 of the TBT Agreement are those co nforming and non-conforming with the EU 
Seal Regime. The European Union also considers that all seal products, regardless of the 
type and purpose of hunt they were obtained from, compete and are substitutable  
between each other in the EU market. 
3.2.3. Less Favourable Treatment - IC exception 
55. Canada argues that the Indigenous Communities exception de facto  violates Article 2.1 of 
the TBT Agreement since such exception effe ctively permits 100% of Greenlandic seal 
products to be placed on the EU market, but excludes virtually all Canadian seal products 
from the same market, thereby modifying the co nditions of competition to the detriment of 
Canadian seal products and resulting in inequality of competitive opportunities. The European Union has shown that the IC exception does not provide for less favourable 
treatment to the group of Canadian imported products, because any detrimental impact on 
Canadian imports derived from the IC exception stems exclusively from a legitimate 
regulatory distinction rather than reflecting discrimination against the group of imported 
products. More specifically, the European Union has, first, demonstrated that the objective 
pursued by the IC exception is "legitimate". A fortiori , the regulatory distinction should also 
be considered "legitimate". Second, the European Union has established that the IC 
exception does not de jure  discriminate by reasons of origin. Third, the European Union 
has shown that the IC exception does not de facto  discriminate against the group of 
Canadian imported products. 
3.2.3.1 Legitimate objective behind the IC exception 
56. Contrary to what Canada suggests, the IC exception is "rationally connected" to the main 
objective of the EU Seal Regime, i.e., addressi ng the moral concerns of the EU public with 
respect to seal hunting. The IC exception takes into account that the Inuit and other 
indigenous communities have a long tradition of seal hunting, which continues to make an 
essential contribution to their subsistence. As stressed by Canada, seal hunting is an intrinsic part of the Inuit way of life, and an integral part of Inuit culture and survival. The 
same could be said of other indigenous communities in similar circumstances. 
Consequently, the situation of the Inuit and other indigenous communities is rather unique. In view of this, the EU legislator came to the conclusion that it would be "morally wrong" to prohibit the placing on the market of seal products resulting from hunts 
traditionally conducted by those communities and which contribute to their subsistence. 
Indeed, the moral perception of products from seals hunted by Inuit and other indigenous communities is the result of a practice whose inherent legitimacy (subsistence of 
indigenous people) overrides the general concerns over the killing methods for purely WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-50 - 
 
  commercial motives. Besides, as the European Union observes, the protection of the Inuit 
and indigenous communities has been widely recognised in the international fora. 
3.2.3.2 The IC exception – no de jure  discrimination 
57. The European Union observes that Canada challenges the IC exception as a de facto  
discrimination. In other words, Canada does not dispute that the IC exception is origin-
neutral on its face. In any event, for the av oidance of any doubt, the European Union has 
shown that the IC exception is origin-neutral on its face and, thus, there is no de jure  
discrimination. More specifically, the terms empl oyed in either the Basic Regulation or the 
Implementing Regulation with respect to  the IC exception are origin-neutral.  
58. First, Article 3.1 of the Basic Regulation, referring to the Indigenous Communities 
exception, covers the placing on the market of seal products that result from "hunts 
traditionally conducted by Inuit and other Indigenous Communities and contributing to 
their subsistence". In this respect, the wording of Article 3.1 of the Basic Regulation does not list countries by name or specify a particular origin of seal products. Rather, it refers to 
(i) the type of the hunt, i.e. traditional hunts carried out by Inuit and other indigenous 
communities, and (ii) the purpose of the hunt (i.e., contributing to the subsistence of the hunter). Second, the Basic Regulation does not define the term "Inuit" as being indicative 
of a particular origin. In fact, those communities are widely spread around the world. Third, the conditions for qualifying for the IC exception are further specified in Article 3 of 
the Implementing Regulation. Like the Basi c Regulation, the Implementing Regulation 
refers to seal products originating from seal hunts (not from specific countries) where 
certain conditions are met. None of these condit ions explicitly relate to a country or limited 
group of countries, but rather to the characte ristics (i.e., type and purpose) of the seal 
hunts. Fourth, as evidenced by the legislative history, there is no indication that the 
European Union intended to design the IC exception to privilege certain WTO Members 
among others. Fifth, the European Union observes that other countries have likewise 
introduced the same exception to the imports of seal products. Finally, the European Union 
considers that the fact that some countries happen to have –at a given moment– 
indigenous population and others do not may create an incidental disparate impact, but the EU Seal Regime is not structured or designed to benefit a limited group of countries based on the nationality or origin of seal products. In sum, the European Union considers 
that there is no de jure  discrimination in the present case, because the EU Seal Regime is 
origin-neutral on its face.  
3.2.3.3 The IC exception – no de facto  discrimination 
59. Canada argues that the EU Seal Regime creates inequality of competitive opportunities 
between Canadian seal products and Greenlandic seal products because the vast majority  
of Canadian seal products cannot be placed on the EU market, due to the fact that the 
east coast commercial harvest in Canada from which the products derived does not meet 
the definition of 'indigenous', whereas "s eal products from Greenland meet all the 
conditions set out in the Implementing Regulati on and are therefore entitled to be placed 
on the EU market". 
60. Canada's "quantitative approach" is entirely without merit. Canada ignores the fact that 
the relevant group  of imported products in this case not only includes Canadian seal 
products derived or obtained from non-Inuit commercial hunts but also Canadian seal 
products obtained from Inuit hunts. The European Union considers that, in order to 
examine whether there is less favourable treatment, the group of imported products (in particular, from Canada) and the group of products from other origin chosen (in particular, 
Greenland) must take into account the existence of the legitimate  regulatory 
differentiation  made in the Basic Regulation. When the treatment granted to the group  of 
Canadian seal products (including both seal products derived from Inuit and commercial hunts) is compared  to the treatment granted to the group  of products from other origin 
covered by the EU Seal Regime (also including both seal products derived from Inuit and 
commercial hunts), the result is that no discrimination arises. What is crucial for this comparison, in order to examine whether there is less favourable treatment or not, is the 
aggregate  competitive opportunities afforded to these two groups  of products. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-51 - 
 
  61. Thus, when making a category-to-category comparison  within the groups of products in 
each side of the comparison (i.e., Canada versus other origins, such as Greenland/Norway), it should be concluded that there is no alteration of the aggregate 
competitive opportunities  in favour of those other origins' groups of products. Put in simple 
terms, this approach shows that there is no discrimination since each category in the same 
situation ( by reference to the "purpose" of the hunt)  is treated equally and has identical 
access to (or prohibition to access) the EU market, regardless of the origin of the products. 
Moreover, as the EU replied to Question 34 of the First Set of Questions from the Panel , 
the trade data provided by the Complainants wi th regard to the alleged detrimental impact 
of the EU Seal Regime on the competitive conditions for their seal products are inconclusive. Indeed, the fact that there have not been imports from Canada (and Norway) 
falling under the IC exception is the result of the inaction by the relevant entities in 
Canada  which have failed to request the certification envisaged in Article 6 of the 
Implementing Regulation. In other words, it is the action (or more concretely the 
omission) of the countries in question, and not the EU Seal Regime, that explains the 
relevant trade data. 
62. The "regulatory distinction" made by the EU Seal Regime between conforming seal 
products under the IC exception and non-conforming products subject to the General Ban 
is "legitimate", and not discriminatory, because (i) it is based on a legitimate objective, and (ii) it is designed and applied in an even-handed manner.  
63. Canada agrees that the protection of public morals  is a legitimate objective under 
Article 2.2 of the TBT Agreement. The IC except ion stems from the rule of public morality 
which the EU Seal Regime seeks to uphold. Even if the IC exception did not reflect a rule of morality, as Canada asserts, the European Union submits that the protection of Inuit 
and other indigenous communities would be a legitimate  objective in itself. The protection 
of the economic and social interests of Inui t and other indigenous communities is widely 
recognised in the international forum. As explained in the European Union's response to 
Question 39 of the First Set of Questions from the Panel , the European Union considers 
that such international context supports the conclusion that the objective pursued by the IC exception, and on which the regulatory distinction is based, is "legitimate" for the purpose of Article 2.1 of the TBT Agreement.  
64. Moreover, the IC exception is designed and applied in an even-handed  manner. It is 
"calibrated" to the animal welfare concerns it pursues. More specifically, it strikes a balance  between the welfare of seals and the subsistence of the Inuit and other indigenous 
communities and the preservation of their cultural identity. The latter provide benefits to 
humans that, from a moral point of view , outweigh the risk of suffering inflicted upon seals 
as a result of the hunts conducted by those communities. Moreover, the IC exception does 
not go beyond what it is necessary to achieve its purpose, and it applies only to seal 
products from genuinely hunts for subsistence purposes.  
3.2.4. Less Favourable Treatment – MRM exception 
65. Canada argues that the EU Seal Regime is a de facto  violation of the national treatment 
obligation under Article 2.1 of the TBT Agr eement because the MRM exception effectively 
permits all EU products to be placed on  the EU market, while excluding 90-95% of 
Canadian seal products from the same market.
 Thus, Canada follows here the same 
"quantitative approach" as with respect to the IC exception to show de facto less 
favourable treatment. As the EU has explaine d in the context of the IC exception, such 
"quantitative approach" cannot be dispositive in finding a detrimental impact on Canadian 
imports. 
66. More specifically, as the EU replied to Question 28 of the First Set of Questions from the 
Panel , when making a category-to-category  comparison within each of the groups of 
products in each side of the comparison (i.e., Canada versus European Union), it should be 
concluded that there is no alteration of the aggregate competitive opportunities  in favour 
of the EU's group of products. The EU Seal Re gime equally affects all seal products derived 
from hunts for commercial purposes, as well as seal products derived from hunts for 
marine resource management purposes. The fact that Canada and Norway have decided to 
structure their industries around hunts for commercial purposes does not necessarily show WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  a detrimental impact in the sense of affording fewer competitive opportunities to the 
Canadian and Norwegian seal products. The EU Seal Regime accords the same competitive opportunities to all seal products falling under the same category, on the basis of the 
purpose behind the hunt (the regulatory distinction) . 
67. Even if the Panel were to agree with Canada that the EU Seal Regime, through the MRM 
exception, modifies the conditions of competition to the detriment of Canadian imports, the European Union submits that such detrimental impact would not reflect discrimination 
because it would stem exclusively from the legitimate regulatory distinction embedded in 
the EU Seal Regime. The MRM exception reflects the EU legislators' assessment that hunts conducted exclusively for management purposes do not raise moral concerns, because the benefits to humans and other animals which ar e part of the same ecosystem, outweigh the 
risk of suffering being inflicted upon the relatively small number of seals concerned. 
Moreover, the prohibition of the marketing of  products from the hunts covered by the MRM 
exception would not contribute to reduce the suffering of seals, because those hunts would 
take place in any event, as they are conducted exclusively for management purposes and 
not for commercial reasons. 
68. The "regulatory distinction" made by the EU Seal Regime is also "legitimate" because it is 
designed and applied in an even-handed manner. Moreover, it contains elements which 
ensure the non-commercial purpose behind the hunt in question: the by-products of those seal hunts are placed on the market in a non-systematic way; the by-products of those seal hunts are placed on the market only on a non-profit basis; the nature and quantity of 
the seal products shall not be such as to indi cate that they are being placed on the market 
for commercial reasons; and finally, Article 3.2 of the Basic Regulation further provides that the application of this exception "shall not undermine the achievement of the 
objective of this Regulation". All these conditions ensure that only seal products from 
genuinely hunts for management purposes qualify for the MRM exception, avoiding potential circumvention of the General Ban. 
3.3. ARTICLE 2.2 OF THE TBT AGREEMENT 
69. Should the Panel find that the measure at issue falls within the scope of application of the 
TBT Agreement, the European Union submits, in the alternative, that the measure in 
dispute is fully consistent with Article 2.2 of the TBT Agreement. More specifically, the 
European Union has shown that the measure at issue has neither the purpose nor the 
effect of creating "unnecessary obstacles to trade", given that: it pursues a legitimate 
objective; and it is not more trade-restrictive than necessary in order to fulfil that 
objective. 
70. The European Union has shown that the policy objective that it pursues is a legitimate 
objective for the purposes of Article 2.2 TBT. Unlike Article XX GATT, Article 2.2 TBT does 
not mention explicitly the protection of public morals as a legitimate objective. But the list 
of legitimate objectives in Article 2.2 TBT is not exhaustive. Moreover, the Appellate Body has indicated that the objectives recognised under other covered agreements may provide guidance for the purposes of the Article 2.2 TBT. The objectives cited in Article XX GATT 
are particularly relevant given that, as stated expressly in its preamble, the 
TBT Agreement seeks to "further the objectives  of the GATT." The justifications provided 
by Article XX of the GATT 1994 and Article 2.2 of the TBT Agreement should be read 
harmoniously. Besides, the complaining parties agree that the protection of animal welfare 
is a "legitimate objective" for the purposes of Article 2.2 TBT, which is "related" to the protection of animal life or health, one of th e objectives expressly mentioned in Article 2.2 
TBT, as well as in Article XX(b) of the GATT. 
71. With regard to the trade-restrictiveness of th e measure, it is beyond question that the EU 
Seals Regime restricts trade to the extent that the General Ban provides for a prohibition, as a general rule, on the placing on the EU market of all seal products, whether domestic 
or imported. Indeed, the General Ban ai ms at being very trade-restrictive, consistently 
with the high level of fulfilment of the EU Seal Regime's policy objective  that was sought 
by the EU Seal Regime. Unlike the General Ban, the three exceptions to that prohibition 
are not trade-restrictive. To the contrary, they allow trade which would otherwise be 
prohibited by the General Ban. The three exceptions could only be regarded as being WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  trade-restrictive if they discriminated in favour of domestic seal products or between 
different sources of imports. But neither the IC nor the MRM exceptions are discriminatory. Since the exceptions are not trade-restrictive, they do not require justification under Article 2.2 TBT.  
3.3.1. The EU Seal Regime makes a substantial contribution to its objective 
72. Through the General Ban the EU Seal Regime makes a very substantial contribution to its 
policy objectives. The EU Seal Regime pursues two closely related objectives: In the first 
place, the General Ban provides a direct response to the moral concerns of the EU 
population by prohibiting, as a general rule, the marketing within the EU territory of the products which the EU population regards as morally abhorrent. Furthermore, by limiting the global demand for seal products, the General Ban reduces the number of seals which 
are killed every year in a manner that may cause them excessive suffering, thereby 
contributing to the welfare of seals.  
73. "Animal welfare" and "public moral concerns on animal welfare", albeit different objectives, 
are closely connected. More specifically, the public moral concerns on seal welfare fall 
within two related, but distinguishable categories. First, EU citizens are morally concerned, as an absolute measure of right and wrong, about the incidence of inhumane killing of 
seals as such. Second, they are morally concerned about their own, and the wider EU 
public’s, agency in the context of violations of their standards of right and wrong, i.e., 
their individual and collective participation as consumers in, and exposure to, the economic activity which sustains the market for commercially-hunted seal products. 
74. The General Ban makes a material, but necessarily partial, contribution to addressing the 
animal welfare concerns by reducing global demand for seal products resulting from commercial hunts, with the consequence that less seals are killed in an inhumane way. 
Contrary to the Complainants' allegations, the three exceptions to the General Ban do not 
nullify the contribution of the EU Seal Regime  to the welfare of seals. The MRM exception 
is subject to strict conditions. Its scope is very limited and the trade potentially concerned 
very small. Moreover, prohibiting the placing on  the market of products within the scope of 
the MRM exception would not prevent the killing  of the seals concerned, which are hunted 
exclusively for management purposes, and could be counterproductive from an animal welfare point of view. With regard to the IC ex ception, it does not seek to promote exports 
from Greenland, but instead to mitigate the necessarily adverse impact of the EU Seal 
Regime on the Inuit and other indigenous populations to the extent compatible with the animal welfare objectives of the EU Seal Regime. In order to address in full the animal 
welfare concerns it would be necessary to put an end to the commercial seal hunts, given 
that humane killing methods cannot be applied on a consistent basis. This solution, however, is beyond the powers of the European Union. 
75. On the other hand, the General Ban addresses successfully the second type of moral 
concerns of the EU population in two different  ways: First, by prohibiting the marketing of 
seal products resulting from commercial hunts on the EU market, the General Ban seeks to reduce global demand for those products and, consequently, the number of seals which 
are not killed in a humane way in the commercial hunts. This improves the welfare of seals 
and, at the same time, addresses the public moral concerns with regard to the act of killing seals as such. Second, by prohibiting the marketing of seals, the EU Seal Regime 
addresses the moral concerns with regard to certain acts performed within the EU territory 
which are morally reprehensible in themselves: selling seal products from commercial hunts, because it involves an act of commercial exploitation of an immoral act (the killing 
of seals in an inhumane way); and purchasing those seal products, because it promotes 
such immoral killings. Furthermore, by prohib iting the marketing of seal products from 
commercial hunts in the EU market, the EU Seal Regime also addresses the broader concern of the EU population not to render itself accomplice collectively to an immoral act 
by tolerating the marketing of seal products within the European Union, while shielding the 
EU public from being confronted with the products resulting from such immoral act. 
76. The contribution of the EU Seal Regime to its public moral objective is very substantial, 
notwithstanding the exclusion of exports and transit from the scope of the General Ban. 
Banning exports of seal products or the entry of goods in transit would indeed have made WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  a greater contribution to the public morals objective pursued by the European Union. 
However,  the EU acceded to exclude transit and inward processing from the scope of the ban for reasons of comity. In any case, the ex clusion of those activities does not prevent 
the EU Seal Regime from being justified under Article 2.2 of the TBT Agreement or 
Article XX of the GATT. The 'all or nothing'  approach advocated by the Complainants on 
the grounds of 'consistency' or 'coherence' ha s no basis in the WTO Agreement. A Member 
may choose to pursue each of its policy objectives to a limited extent only, so as to take 
into account other policy objectives. Besides, a measure excluding also exports and transit 
would have been more trade-restrictive, and pr ima facie inconsistent with Articles XI and V 
of the GATT. 
3.3.2. The alternative measures identified by the Complainants would fail to make 
an equivalent contribution to the objective of the EU Seal Regime    
77. Both Canada and Norway identified as a le ss restrictive alternative measure a regime that 
would condition market access on compliance with animal welfare standards combined 
with a labelling requirement. In addition, Norway identified two other alternative 
measures: the removal of the three sets of re quirements comprising the EU Seal Regime; 
and the removal from the MRM exception of th e requirements that the product be placed 
on the market in a non-systematic way and on a non-profit basis. 
78. With regard to the first alternative  measure, this is essentially the same measure which 
had been proposed by the European Commission during the legislative process. However, the EU legislators rejected the derogation proposed by the European Commission because, 
in their view , it failed to provide a sufficiently high level of fulfilment of the objective 
pursued by the EU Seal Regime . The EU legislators concluded that, although it could be 
possible, in theory , to prescribe a humane method for killing seals, in practice  the unique 
conditions in which commercial seal hunting takes place would render it impossible to 
apply and enforce such method in an effective and consistent manner . Contrary to what 
the Complainants appear to consider, there is  no rule in the TBT Agreement or elsewhere 
in the WTO Agreement which would require a Member to tolerate certain risk merely 
because it is unavoidable . Where the unavoidable risks of an activity are excessive in light 
of a Member's chosen level of protection, as in the case of commercial seal hunting, a Member is entitled to ban the products result ing from such activity. According to the EU 
legislators' assessment, the unavoidable  risks to the welfare of seals that are inherent in 
commercial  seal hunting are excessive and morally unacceptable . Thus, the General Ban of 
those products is necessary in order to achieve the high level of protection that the EU 
Seal Regime is seeking to achieve.  
79. According to the moral judgement made by the EU legislators, the inherent risks that seals 
could experience excessive suffering were too high and could not be tolerated having 
regard to the objective pursued by the measure. While the selection of a level of 
protection of public morals must certainly take into account relevant scientific evidence, it is not a scientific judgement. It is a policy decision involving a moral judgement which, in the present case, was the exclusive prerog ative of the EU legislators. The moral 
judgement made by the EU legislators finds adequate support on qualified scientific 
opinions. Moreover, the Panel should not choose one among the various expert opinions available or substitute its own scientific judgem ent. Rather, the Panel's task is limited to 
examine whether, in so far as the policy choice s reflected in the EU Se al Regime purport to 
be based on science, such choices find adequate support from qualified scientific opinions, irrespective of whether they represent the majority view. 
80. Canada's and Norway's proposed alternative measure would fail to make an equivalent 
contribution to the objective pursued by the EU Seal Regime. Indeed, the proposed 
alternative presupposes that it is feasible to apply and enforce effectively and consistently a humane killing method. Yet, according to qualified scientific opinions, it is not possible  to 
do so in practice . As a result, the proposed alternative would allow the placing on the 
market of seal products obtained from seals hunted for commercial purposes which may have been killed in a manner that causes them excessive suffering. In contrast, the 
General Ban prevents that result by prohibiting the placing on the market of any seal 
products, except when duly justified on moral grounds  under one of the exceptions.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  81. The complaining parties contend that it is perfectly feasible to prescribe animal welfare 
requirements for hunting seals. But the relevant issue is not whether it is feasible to prescribe just any kind of welfare requirements. Instead, the complaining parties are 
required to prove that it is feasible to prescribe genuinely  humane killing methods which, 
in practice , can be applied and enforced effectively and consistently , so as to achieve the 
level of protection selected by the EU legislators.  
82. What is more, Canada and Norway do not specify what welfare requirements should be 
prescribed as part of their proposed alternative measure, perhaps because they cannot 
agree even among themselves. Instead, each of them refers to different sets of criteria 
and recommendations contained in the reports issued by various groups of veterinary experts.  
83. Article 2.2 of the TBT does not impose a requirement of "consistency". Members are free 
to set different policy objectives and to select different levels of protection in respect of different products or, as in this case, in respect of different species of animals. The 
examination of measures applied to other species of animals could be relevant only in so 
far as such measures concerned sufficiently similar situations and then only as a mere "indication" of the availability of alternative measures.
4 The measures applied by the 
European Union to other species and cited by the complainants are of little relevance as 
examples of available alternative measures because there are major differences between the situations concerned. At any rate,  Members are entitled not only to select different levels of protection with regard  to different species of animals,  but also to legitimately take 
into account, in choosing the appropriate level of protection, together with the risk that 
individual animals may experience suffering, other pertinent moral considerations. Such moral considerations may relate, for example, to whether the animals concerned are wild 
or have been reared in farms for the purpose of being slaughtered, or the purpose for 
which animals are killed, or the use given to the products obtained from the killed animals.  
84. The examples of certification and labelling systems mentioned by the Complainants lack 
pertinence. Some of them are not even primar ily concerned with animal welfare (e.g. Krav 
and Label Rouge). Furthermore, in each case, the animals concerned are different, the environment is different, the killing methods ar e different and, consequently, the risks to 
animal welfare are also very different. Moreover, it appears that the various schemes 
mentioned by the Complainants are based on the assumption that the underlying animal 
welfare requirements can be applied on a consistent basis. However, in the case of commercial seal hunting such humane killing methods cannot be applied effectively and 
consistently . Since it would not be possible to certify a priori  that all products originating in 
a given country or region or hunted by a certain person will comply with the requirements of such methods, it would be necessary to certify that each and every individual seal from 
which the marketed products are obtained has been hunted humanely. The effective 
monitoring and enforcement of such compliance, and thus the practical viability of such "seal-by-seal" certification system, is very questionable, and would fail to make an equivalent contribution to the objective pursued by the EU Seal Regime.  
85. It should be pointed out that the practical difficulties faced by an inspector in fully 
monitoring the implementation by sealers of the sealing regulations are unique and have 
no equivalent in slaughterhouses. Slaughte rhouses provide a controlled, predictable and 
safe environment, where both the effective implementation of the prescribed killing 
methods and adequate monitoring and enforcement is possible and common in practice. 
86. With regard to the second  alternative  measure (removing the "three sets of 
requirements"), this measure amounts to repealing the EU Seal Regime and allowing the 
placing on the market of seal products without any restriction. While this alternative measure is certainly less trade-restrictive, it makes no contribution to the objective pursued by the EU Seal Regime.  
87. With regard to the third alternative measure  (removal from the MRM exception of the 
requirements that the product be placed on the market "in a non-systematic way" and "on 
                                               
4 Cf. Appellate Body Report, Korea – Various Measures on Beef , paras. 170 and 172. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  a non-profit basis"), Norway has explained that this alternative relates only to the MRM 
exception. However, since that exception is not trade-restrictive, it does not require justification under Article 2.2 TBT. Moreover , contrary to Norway's assumption, the MRM 
exception does not seek to promote the sustainable management of marine resources. 
Therefore, this alternative measure would not contribute to the objective of the EU Seal 
Regime. At the same time, by removing from  the MRM exception the requirements that 
the product be placed on the market "in a non-systematic way" and "on a non-profit 
basis", this alternative measure would enlarge considerably the scope of application of that 
exception, thereby undermining the objective of the EU Seal Regime.  
3.4. ARTICLES 5.1.2 AND 5.2.1 OF THE TBT AGREEMENT   
88. The provisions of the Implementing Regula tion, which Canada and Norway challenge with 
their claims under Articles 5.12 and 5.2.1 of  the TBT Agreement, set out procedures to 
determine whether the conditions of the IC  and MRM exception are met. The European 
Union has submitted that its Seals regime, including the exceptions in question, is not a 
technical regulation within the meaning of Annex 1 of the TBT Agreement, and thus, the 
procedural provisions under the Implementing Regulation, which merely concern the operation of the exceptions do not constitute "conformity assessment procedures" within 
the meaning of Annex 1.3 of the TBT Agreement.  Nevertheless, should the Panel find that 
the measures at issue do constitute conformity assessment procedures within the meaning of the TBT Agreement, the European Union submits, in the alternative, that the 
mechanism for assessing compliance with the Indigenous Communities and Marine 
Resources Management exceptions laid down in the Implementing Regulation is fully 
consistent with Article 5.1.2 and 5.2.1 of the TBT Agreement.  
3.4.1. Article 5.1.2 
89. The procedure put in place by the Implemen ting Regulation cannot be claimed to have 
been prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles  to international trade. The procedure established under the 
Implementing Regulation is not a goal in itself. As reflected in the preamble of the 
Implementing Regulation, it serves the purp ose of providing adequate assurance to the 
European Union, its Member States and citizens that the only seal products placed on the market in the European Union are those that comply with the exceptions established under 
the seals regime. 
90. The European Union submits that its Implementing Regulation does not violate 
Article 5.1.2; on the opposite, it falls within the scope of regulatory autonomy that the 
TBT Agreement permits. The procedure that the Implementing Regulation introduced takes 
into account the particularities that the certification of conformity with the Indigenous Communities and Marine Resources Management exceptions entails. The TBT Agreement 
not only allows such a regime, but indeed encourages a number of the features that the 
Implementing Regulation adopts. 
91. Both complaining parties seem to direct their claim under Article 5.1.2 against the fact 
that the Implementing Regulation establishes a third party conformity assessment 
mechanism, whereby the conformity assessmen t bodies need to be recognised by the 
European Commission before they can issue certificates of conformity.
 However, while 
acknowledging the need to show that a less trade-restrictive alternative is reasonably 
available to make a prima facie  case under Article 5.1.2. Canada's submission that a 
supplier declaration would have constituted a less trade-restrictive measure fails to ensure adequate confidence that products conform wi th the applicable regulation, while taking 
into account the risks of non-conformity. Norway also fell short of making a prima facie  
case for its alternative of designating a "d efault" recognised body, as it failed to 
demonstrate why the proposed alternative would be equally effective in determining the product's conformity with the regulation co ncerned, and less trade restrictive than the 
conformity assessment procedure at issue. 
92. Canada and Norway do not challenge the sp ecific requirements that a recognised body 
needs to meet pursuant to Article 6(1)(a)-(h) of the Implementing Regulation in order to WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  be included on the list of recognised bodies. Moreover, an entity applying for designation 
from the European Commission is not subject to any substantive or procedural requirement in addition to those set out in Article 6(1)(a)-(h) of the Implementing 
Regulation in order to be included on the list.  
93. The requirement to be included on the "lis t of recognised bodies" before a conformity 
assessment body can issue certificates of conformity serves to ensure transparency  as to 
which conformity assessment bodies obtained recognition/designation  from the European 
Commission. Designation is the validation that a certification body has the infrastructure, 
competencies and controls necessary to properly assess conformity and there is verification that a certification body does indeed comply with its own processes. As such the requirement to be included on the "list of recognised bodies" certainly does not pose 
an obstacle, but rather facilitates international trade by providing an accessible 
authoritative reference to all  market operators. In the absence of these requirements for 
recognition and in the absence of a list that confirms it, the capability and credibility of 
certifying entities would be doubtful. The re quirement that only recognised bodies, which 
meet the prerequisites for designation, may issue attesting documents is therefore necessary  to give the European Union and its Member States the adequate confidence  that 
the seal products imported under one of the exceptions to the Seals regime satisfy the 
requirements of such exception. 
94. A key feature of the procedure under the Implementing Regulation is that it makes 
recognition available to public and private entities from both within and outside the 
territory of the European Union. Article 8 of the TBT Agreement, which constitutes relevant 
context for the interpretation of Article 5, makes it clear that WTO Members may confer conformity assessment procedures to non-governmental (i.e. private) bodies, provided 
that they take with respect to such bodies "such reasonable measures as may be available 
to them" to ensure that these non-governmental bodies comply with the obligations under Articles 5 and 6 of the TBT Agreement.  
95. In the view of the European Union there is  no basis in the text Article 5.1.2 of the 
TBT Agreement to argue that WTO Members should not allow government and non-governmental bodies from other WTO Members to apply for designation and subsequently act as recognised conformity assessment bodies. To interpret Article 5.1.2 in such manner 
would go against the ordinary rules of treaty interpretation, as it would ignore the 
obligations that bind WTO Members pursuant  to Article 6 of the TBT Agreement. The 
European Union submits that it would not be tenable to interpret Article 5.1.2 in a manner 
whereby complying with Articles 6.2 and 6.3 could amount to a violation of Article 5.1.2. 
96. The fact that the Implementing Regulation  requires an application before conformity 
assessment bodies located in the territories of other Members can be recognised as 
conformity assessment bodies under Article 6 of the Implementing Regulation does not 
alter this conclusion. Without an application procedure it would have been impossible to verify compliance with the requirements that are in place to ensure the capability and impartiality of recognised conformity assessment bodies
5. By applying a candidate 
conformity assessment body also gives its consent to being subject to a review of 
compliance with the criteria during the application process and being audited subsequently; an agreement which could – especially with respect to entities located in 
third countries – not have been simply presumed. 
97. Finally, there is no basis in the text of Article 5.1.2 to argue that a WTO Member is 
required to designate a "back-up" or "default" public body in all cases where it decides to 
put in place a system of designated confor mity assessment bodies. While the European 
Union does not exclude the possibility that th e designation of one (or more public bodies) 
may be a desirable approach in certain cases, it calls on this Panel to reject a reading of the TBT Agreement whereby doing so would be a generalised obligation applicable to all 
conformity assessment procedures. The Explanat ory note to point 3 of Annex 1 clarifies 
that conformity assessment procedures within the meaning of the TBT Agreement, include, 
inter alia , "procedures for sampling, testing and inspection; evaluation, verification and 
                                               
5 Pursuant to the Implementing Regulation the same substantive and procedural requirements apply to 
bodies located within and outside th e territory of the European Union. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  assurance of conformity; registration, accreditation and approval as well as their 
combinations " (emphasis added). It follows that the necessity of any system for 
accreditation/designation of certifying bodies put in place by a WTO Member must also be assessed based on its own merits. This interpretation is further supported by subsequent 
practice of WTO Members.  
98. With regard to Norway's assertion that the designation of a public entity within the EU 
would have been less trade restrictive than the system in place under the Implementing 
Regulation, the European Union submits that such unsupported allegation is disingenuous. 
In a context, like the one at issue, where ce rtification can entail inspections of compliance 
with the requirements of the IC or MRM exceptions at the place of origin  of the product, 
the designation of a default public authority in the European Union could be a less efficient 
and considerable costlier certification mechanism, and thus could have greater trade 
distortive effect than the system that the European Union put in place through the Implementing Regulation. The raise in costs for certain operators by such alternative is 
also indicated by Article 5.2.5 of the TBT Agreement, according to which conformity 
assessment authorities are entitled to charge for "communication, transportation and other costs arising from differences between loca tion of facilities of the applicant and the 
conformity assessment body". Given these considerations, what Norway describes as an 
"institutional lacuna" is rather a mechanism to try and ensure a level playing field  and 
avoid giving an inherent systemic advantage  to trade in seals products that would 
originate in the European Union or its immediate proximity.  
3.4.2. Article 5.2.1 
99. With regard to the claims against the Implementing Regulation as such , the EU notes that 
Article 5.2.1 requires Members to ensure that conformity assessment procedures, 
including the stage of accreditation/designation of conformity, are undertaken and 
completed as quickly as possible. The phrase "undertake and complete" covers all stages 
of the conformity assessment procedure an d has been interpreted by the panel in EC – 
Approval and Marketing of Biotech Products  as meaning that, once an application has been 
received , procedures must be started and then carried out from beginning to end. Like 
Annex C.1(a) of the SPS—the jurisprudence on  which is relevant in interpreting the 
obligation under Article 5.2.1 of the TBT Agreement—Article 5.2.1 is a good faith obligation 
requiring Members to proceed with their confor mity assessment procedures as promptly as 
possible. 
100. As explained in the context of the Article 5.1.2 claim, the European Union acted in good 
faith when it adopted the Implementing regu lation and put in place all the necessary 
elements to ensure that conformity assessmen t procedures pursuant to the Regulation can 
be conducted in accordance with the TBT Agreement disciplines (notably, Articles 5, 6, 7, 8 
thereof). While unfortunate, the relatively low interest by public authorities from other 
WTO Members (including by the authorities in Canada and Norway) and the absence of interest in obtaining accreditation by private entities operating on the market cannot be 
attributed  to the European Union .
 As Canada and Norway acknowledge, some entities have 
taken the decision not to submit a request.  It seems clear that the reason why more 
requests had not been submitted is grounded  in the lack of desire of the potential 
beneficiaries to make use of the system rather than in alleged deficiencies in the set-up of 
the system itself. 
101. With regard to Canada's "as applied" claim under Article 5.2.1, the European Union 
submits that such a claim falls outside the Panel's terms of reference and should be 
rejected on those grounds. In the alternativ e, the European Union submits that the delay 
in processing Greenland's application can in any event not be considered as a violation of Article 5.2.1 imputable to the European Unio n, because the alleged delay is due to a 
deficiency in the application. As the panel in EC – Approval and Marketing of Biotech 
Products  noted, "delays attributable to action, or inaction, of an applicant must not be held 
against a Member maintaining the approval procedure". WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  4. THE  GATT 
4.1. ARTICLE XI:1 OF THE GATT 1994 
102. The European Union disagrees with the qualif ication by Canada and Norway of the EU Seal 
Regime as falling under Article XI:1 of the GATT 1994. A measure does not automatically 
fall under the scope of Article XI:1 just because it is enforced  at the border. The relevant 
WTO case-law, on the basis of the Ad Note to Article III of the GATT 1994, has clarified 
that, when a measure of the kind referred in Article III:1 of the GATT 1994 applies to an 
imported product and the like domestic  product and is collected or enforced in the case of 
the imported product at the time or point of importation, such a measure falls under the scope of Article III of the GATT. Consequently, in cases where a measure amounts to an 
internal regulation affecting both domestic and imported  product, the mere fact that the 
measure is enforced at the border does not make it fall within the scope  of Article XI of the 
GATT 1994. Rather, by virtue of the Ad Note to Article III of the GATT 1994, such measure 
should be examined under the prism of Article III of the GATT 1994.  
103. The European Union submits that the EU Seal Regime does not fall under Article XI of the 
GATT 1994 because it is not a border measure (in the sense of affecting the importation of products). Rather, the EU Seal Regime should properly be characterised as an internal 
measure (affecting both domestic and imported products), and thus be examined under 
Articles I:I and III:4 and not Article XI of the GATT 1994. 
104. Indeed, as stated in Article 1 of the Basic Regulation, the EU Seal Regime concerns "the 
placing on the market of seal products". Arti cle 3.1 of the Basic Regulation further states 
that the conditions for placing on the EU market "shall apply at the time or point of import 
for imported products". As explained in Recital (10) of the Basic Regulation, this is made "in order to ensure effective enforcement" with  respect to imported products. Thus, it is 
clear that the EU Seal Regime applies indistinctly to both domestic and imported products 
and that it concerns the placing on the market of seal products (i.e., as a regulatory internal measure as opposed to a border measure). What is more, the three exceptions it 
provides for are not trade restrictive and, therefore, cannot amount to import restrictions 
under Article XI of the GATT 1994. Furthermore, the EU Seal Regime permits the further processing of seal products by operators in the EU market. Thus, it does not operate "effectively" as a border measure. In any event, were the Panel nevertheless to find that 
Article XI of the GATT 1994 is applicable in th is case, the European Union has showed that 
the EU Seal Regime is justified under the General Exceptions of Article XX of the GATT 1994. 
4.2. ARTICLES III:4 and I:1 OF THE GATT 1994 
105. The European Union has demonstrated that Canada's and Norway's claims under 
Article III:4 of the GATT 1994 are without merit. In essence, the European Union considers 
that the same legal standard with respect to the national treatment obligation under 
Article 2.1 of the TBT Agreement equally applies to claims under Article III:4 of the GATT 1994. Indeed, in US – Clove Cigarettes , the Appellate Body examined Article 2.1 of 
the TBT Agreement "in context" with Article III:4 of the GATT 1994. Thus, all the 
considerations made by the European Union with respect to Canada's claim under 
Article 2.1 of the TBT Agreement apply mutatis mutandis  to Canada's and Norway's claims 
under Articles I:1 and III:4 of the GATT 1994. In any event, the European Union 
addressed the specific arguments raised by Canada and Norway with respect to this claim. 
106. To begin with, the first element that need s to be examined under Article III:4 of the 
GATT 1994 is whether the EU Seal Regime is a law, regulation or requirement affecting the 
internal sale, offering for sale, purchase, transportation, distribution or use of seal 
products. The European Union does not dispute that the EU Seal Regime amounts to a "law" "affecting the internal sa le" of seal products within the EU. Second, like in the 
context of Article 2.1 of the TBT Agreement,  when examining the Complaining Parties' 
claim under Article III:4 of the GATT 1994, the Panel is called upon to determine the group  
of domestic products that are "like" the group  of products imported from the complaining 
Members. For the same reasons as those mentioned before, the European Union considers WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-60 - 
 
  that the relevant group of products with respect to the Complaining Parties' claim under 
Article III:4 of the GATT 1994 includes those seal products conforming and non-
conforming  with the EU Seal Regime.  
107. The European Union submits that, for the sa me reasons as those mentioned in the context 
of Canada's claim under Article 2.1 of the TBT Agreement, the EU Seal Regime, through 
the MRM exception, does not provide for le ss favourable treatment to the group of 
imported products. In addition, the European  Union has addressed the following specific 
arguments made by the Parties in the context of their claim under Article III:4 of the 
GATT 1994. First, the EU has rebutted Canada's claim that EU domestic seal products will 
benefit greatly from the Marine Management category, while Canadian seal products will 
not. The EU has showed that this is not the case. Any country in the world carrying out the 
type of hunts described in the MRM exception could fall under such exception. Second, the 
European Union has pointed that the fact that Canadian products may not fall under the 
MRM exception does not imply that there is de facto  discrimination. The fact that Canada 
does not follow an ecosystem approach, whereas other countries do, does not make such 
a condition discriminatory. Those conditions do not mean to de facto  discriminate between 
imported and domestic like products, but rather to state the situation where the placing of 
seal products on the EU market is morally acceptable. Third, contrary to Norway's 
allegations, the EU has showed that the conditions under the MRM exception target distinct 
elements which not only look into controlling seal population to limit the damage to the ecosystem, but also other elements in line with what is morally acceptable in those 
situations (e.g., not to obtain profit out of killing a seal, and limit the number and intensity 
of the killing). Fourth, the EU has argued that the fact that Norway does not meet the 
conditions of "non-systematic way" and "non-profit basis" does not imply that the measure 
is de facto  discriminatory. Any country in the world, including Norway, could meet all the 
conditions set out in the MRM exception.  
108. Similarly to the analysis under Article III: 4 of the GATT 1994, the European Union submits 
that the Panel should dismiss these claims. In essence, the European Union considers that 
the same legal standard with respect to the MFN obligation under Article 2.1 of the TBT Agreement equally applies to claims under Article I:1 of the GATT 1994. Like the test 
of Article III:4 of the GATT 1994, the test of Article I is about discrimination, not about 
deregulation. Thus, for the same reasons as those mentioned above, the European Union 
considers that there is no de jure  or de facto  discrimination between the group of imported 
products and the group of like products from other origin (in particular Greenland). In any 
event, the European Union has also addressed the specific arguments raised by Canada 
and Norway in the context of this claim. 
109. More specifically, the EU has showed that, contrary to Canada's claims, the advantage 
conferred upon by the IC exception does not grant market access to "products originating 
in Greenland". It does grant market access to products that meet certain origin-neutral conditions in connection to the type and purpose of the hunt, which is considered as morally acceptable in the European Union, including products resulting from hunts 
conducted by Inuit and other indigenous communities for the purpose of their subsistence 
in Canada and Norway. Thus, the advantage included in the Inuit exception has been extended, in the European Union's view, "immediately and unconditionally" to Canada and 
Norway. 
110. Moreover, the EU has noted that, unlike Norw ay's contentions, the Basic Regulation does 
not contain a "closed list" of countries where seal hunting by Inuit or other indigenous 
communities may take place, but clearly an illustrative list. Besides, the EU has observed 
that like Canada, Norway provides government support to its commercial seal hunting. Further, no public or private entity in Norw ay has requested to become a recognised body 
either. Again, this is a matter of choi ce and judgement by Norway, despite the 
uncontested fact that Norway has seal hunts potentially falling under the IC exception. 
Norway’s actions (omissions) and choices are, therefore, relevant in the examination of 
whether the EU Seal Regime, through the IC  exception, modifies the conditions of 
competition to the detriment of Norway's imports (which is not the case, as the European 
Union pleads). WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-61 - 
 
  4.3. ARTICLES XX(a) and XX(b) OF THE GATT 1994 
111. Should the Panel find that the EU Seal Regime  is inconsistent with any of the provisions of 
the GATT invoked by the complainants, the European Union submits, in the alternative, that any such inconsistency would be justified under Article XX(a) of the GATT. More 
specifically, in accordance with the "weigh ing and balancing" test developed by the 
Appellate Body for assessing the "necessity " of a measure, the European Union has 
showed that the EU Seals Regime is "necessary" to achieve the policy objective of 
protecting the public morals of the EU citizens. This objective has been recognized by the 
panel in China-Publications and AV products  as ranking among the most important values 
or interests pursued by members as a matter of public policy. Although the EU Seals 
Regime is indeed very trade-restrictive (consistently with the high level of fulfilment of the 
policy objective sought by the EU legislator), it makes a material contribution to its 
objective, while none of the alternatives proposed by the Complaining Parties would make an equivalent contribution to protecting public morals at the high level that the EU has 
chosen to protect them. Last, the EU Seals Regime also complies with the chapeau  of 
Article XX of the GATT 1994, because it is not applied in a manner that constitutes "arbitrary or unjustifiable discrimination between countries where the same conditions 
prevail". 
112. As regards Article XX(b), the European Union has shown that, even if the Panel were to 
decide that the EU Seal Regime does not seek to address the moral concerns of the EU public, but exclusively the concerns on seal welfare as such, the General Ban would be 
necessary in order to achieve the latter objective.  Prohibiting the placing on the market of 
products falling within the IC exception an d the MRM exception would not be necessary 
because those products result from hunts which take place under different conditions. 
Moreover, prohibiting the placing on the market of products within the scope of the MRM 
exception would not prevent the killing of  the seals concerned, which are hunted 
exclusively for management purposes, and could be counterproductive from an animal 
welfare point of view. 
4.4. ARTICLE XIII(b) OF THE GATT 1994 
113. The European Union submits that the complaining parties have failed to establish that the 
tariff benefits cited by them have  been nullified or impaired as a result of the application of 
the EU Seal Regime. First, the complaining parties have not shown that the EC Seal 
Regime upsets the competitive relationship be tween the seal products of the complainants' 
origin covered by the relevant tariff concessions and other products of domestic origin, 
because, as  shown in the response to the complaining parties' claims under Articles I:1 
and III:4, the EU Seal Regime does not discriminate, either de jure or de facto , between 
domestic and imported like products.  
114. Second, the complaining parties have not shown that the measure in dispute could not 
have been reasonably anticipated by them. Among others, Canada adopted in 1964 the first Seal Protection Regulations, which prohibited the skinning of live animals, in response to growing public moral concerns. Moreover, public pressure led to the adoption of various 
r e s t r i c t i o n s  o n  t r a d e  i n  s e a l  p r o d u c t s  b y  several countries (among others, France, the 
Netherlands, Italy, the United Kingdom, and Germany) during the 1970s and early 1980s. Furthermore, in 1986 the Canadian Royal Commission on Seals and Sealing issued a very 
comprehensive report which examined inter alia the public moral concerns about sealing in 
view of what the Royal Commission termed the "Campaign against sealing" and the 1983 EC ban. In response to that report the Canadian government banned the killing of 
whitecoats and bluebacks in 1987. Given the longstanding public moral concerns with 
regard to the killing of seals, including in both Canada and Norway, the complaining parties cannot pretend now that they could not have reasonably anticipated the measure at issue. The governments of Canada and Norway could not have ignored those public 
moral concerns at the time when the relevant concessions were negotiated. Nor could 
those governments have ignored that the most obvious way to address such public moral concerns was by restricting or prohibiting the marketing of seal products, a measure which 
had been strongly advocated by some experts and animal rights activists since the 1960s.  WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- B-62 - 
 
  115. In sum, the European Union has shown that the complaining parties have failed to meet 
their burden of proof under GATT Article XXIII(b). Accordingly, the European Union 
requests the Panel to reject this claim. 
5. THE  AGREEMENT  ON AGRICULTURE 
116. Article 4.2 of the AoA deals with border measures. As explained above, the EU Seal 
Regime is not a border measure but an internal regulatory measure applied to both domestic and imported seal products. Thus, Article 4.2 of the AoA does not apply to the EU 
Seal Regime. In addition, the European Union observes that Footnote 1 of the AoA 
excludes from the scope of "measures of th e kind which have been required to be 
converted into ordinary customs duties" "measures maintained under balance-of-payments provisions or under other general, non-agriculture-specific provisions of GATT 1994 or of 
the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement". Since the 
EU Seal Regime is a measure "maintained … under other general…provisions of the GATT [i.e., Articles I, III and XX] or of the other Multilateral Trade Agreements in Annex 1A to 
the WTO Agreements [i.e., Articles 2.1 and 2.2 of the TBT Agreement]", Article 4.2 of the 
Agreement on Agriculture does not apply. Co nsequently, the European Union submits that 
Article 4.2 of the AoA is not applicable in the present dispute. 
 
_______________ 
 
 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-1 - 
 
  ANNEX C 
ARGUMENTS OF THIRD PARTIES 
Contents Page 
Annex C-1 Integrated executive summary  of the arguments of Colombia C-2 
Annex C-2 Integrated executive summary of the arguments of Iceland C-5 
Annex C-3 Integrated executive summa ry of the arguments of Japan C-6 
Annex C-4 Integrated executive summary of the arguments of Mexico C-12 
Annex C-5 Integrated executive summary of the arguments of Namibia C-17 
Annex C-6 Integrated executive summary of the arguments of the United States C-22 
 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-2 - 
 
  ANNEX C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COLOMBIA 
1. Mr. Chairman, Members of the Panel, Parties to  the dispute and Third Parties, on behalf of 
the Government of Colombia, I appreciate the opportunity that the Panel gives us to express our views. 
2. While not taking a final position about the specific merits of this case, Colombia will provide 
its views on some of the legal claims advanced by the Parties to the dispute. In particular, 
Colombia will make submissions with respect to the following issues presented by the complainants, Canada and Norway, and the respondent, the European Union in its first written 
submission:  
1. The identification of the policy objectives of the measures at issue;  
2. Whether TBT Article 2.2 has been breached when there are several policy 
objectives at issue. 
3. Moving on to the first issue , Colombia observes that the present case poses a difficult 
challenge to the Panel when analyzing the policy objective pursued by the EU when implementing 
Regulation EC No. 1007/2009 and Regulation EC No. 737/2010, jointly referred to as the "EU Seals 
Regime". 
4. Apart from the obvious disagreement betw een the EU and the complainants of the 
objectives actually  pursued by the EU Seal Regime, its desi gn, structure and architecture makes it 
a difficult task for any impartial observer to assess the policy concerns the EU had in mind when 
enacting such a measure and, in particular, how the different concerns interact. 
5. Colombia recognizes that the protection of animal welfare, the protection of indigenous 
communities and the protection of marine resources conservation, among others, are objectives 
that every Member should be allowed to pu rsue by means of a technical regulation.  
6. However, Members must be careful when do ing so, particularly when trying to address 
multiple policy concerns in a technical regulation. This may in some cases lead to situations where 
the manner by which the policy objectives are implemented may create a conflict between them. 
7. In Colombia’s view, this is precisely the case: the EU has drafted the EU Seals Regime in a 
way where pursuing some objectives materially  undermines others. This conflict between the 
policy objectives raises several doubts about the co nsistency of the EU Seals Regime with the TBT. 
8. Colombia will not enter into the debate of how many policy objectives are pursued by the EU 
when enacting the measure at issue. In Colombia’s view, the important legal issue in this matter is 
not determining the number of different policy object ives pursued but the relationship that exists 
between them.  
9. In the present case, Colombia considers that the way in which the EU Seal Regime is drafted 
causes a potential conflict between, on the one hand , the objective of ensuring animal welfare and 
on the other hand, the protection of the fundamen tal economic and social interests of indigenous 
communities and the encouragement of the sustainable management of marine resources. 
10. As stated by the EU, the quintessential motivation behind the EU Seal Regime is addressing 
the moral concerns raised by the " excessive pain, distress, fear or other forms of suffering "1. Thus, 
although it would not be appropriate to establis h a hierarchy among the several policy objectives, 
it is possible to state that this objective is the most important of all and that it should permeate 
                                               
 Colombia requested that its oral statement serve as the integrated executive summary. 
1 EU's FWS, para. 33. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-3 - 
 
  the entire EU Seal Regime in a manner that it en sured that each and every part of the measure, 
including its exceptions, directly contribute to the achievement of this end or at least do not undermine it.  
11. However, the way the EU drafted the measure, in particular, the indigenous communities 
and marine resources management exceptions, goes directly against the objective of protecting 
the welfare of seals. Both exceptions are designed in a way that allow the access of seal products into the EU market without any consideration whatsoever as to the welfare of seals. 
12. In Colombia’s view, the above mentioned exceptions bear no connection with the moral impact that hunting seals in a manner that does not take into account their welfare has on consumers. It does not seem possible to argue that consumers would be more willing to accept such types of cruel practices for the sake of the conservation of marine resources conservation or 
for taking into account the interests of indigenous communities. If a seal is drowned or killed in 
any manner that causes excessive suffering, Colombia believes that the fact that this was done by hunters belonging to the Inuit community or as a part of a marine resources conservation plan 
does not make the practice any less morally reprehensible.  
13. Colombia recognizes that, in general, these types of contradictions or conflicts between 
opposing policy objectives may arise in several situations.  
14. However, it is difficult to understand the double moral standard that the EU is introducing by 
means of the exceptions. As way of example. and recognizing that there are important differences, 
what the EU is suggesting would imply that in cases such as EC-Asbestos , where a total ban on the 
importation on some products was enacted due to concerns of negative effects to the welfare of 
human beings, it would be possible to allow the entr ance of some of the banned products in order 
to fulfill other objectives, irrespectively of the negative impact on the protection of human health. 
15. Although it is difficult to assess such hypothetical situation without understanding the exact 
nature of the other policy objectives that would justify undermining such an important objective as 
the protection of human health –in this cases the protection of seal’s welfare- what Colombia is trying to highlight is that it seems rather difficult to accept that it would be legitimate to enact a 
measure with one main objective and then impose exceptions to that measure that completely 
pierce  and undermine the principal policy objective. 
16. It does not seem logical to enact a ban on asbestos-containing products, due to its 
carcinogenic effects, but at the same time allow the entrance of these products regardless of the 
adverse health effects to human beings. In the same manner, it does not seem logical to enact a 
ban on seal products to protect them from excessive suffering but allow the entrance of these products, regardless of whether they were hunted  using methods that prevented such excessive 
suffering.  
17. With regards to the second issue , Colombia will provide its comments on whether there is 
a possible breach of TBT Article 2.2. Although it  will not perform a complete assessment of this 
provision, nor conclude on whether this provision has been actually breached, it will lay out some 
concerns that may guide the Panel in assessing this matter. 
18. To start with, Colombia notes that there is no fundamental disagreement among the parties 
on the legal standard that should be followed in order to assess a breach of this provision. Thus, it 
will not make any submissions in this respect. 
19. Colombia will focus its comments on the necessity test established in this Article. In 
particular, Colombia will comment on the elemen t of the degree of contribution made by the 
measure to the legitimate objective at issue. 
20. As stated in the first submission of this Oral  Statement, the EU Seal Regime was designed in 
a way to address several policy objectives that in some cases are conflictive with each other 
because of the manner in which they were addressed.  In particular, the conflict arises with regards 
to, on one hand, assurance of animal welfare and, on the other hand, the protection of the fundamental economic and social interests of in digenous communities and the encouragement of 
the sustainable management of marine resources. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-4 - 
 
  21. Since the main objective of the EU Seal Regime is to ensure animal welfare, Colombia 
believes the Panel should focus its analysis mainly on the contribution of the measure to this policy objective, but also taking into account the other objectives pursued. 
22. Colombia agrees with Norway and Canada that the indigenous communities and marine 
resources management exceptions are rationally disconnected
2 from the main objective of the EU 
Seal Regime: it is clear that these exceptions undermine, or "run counter"3 the "overreaching 
objective"4 of the measure since they allow the access of seal products regardless of whether they 
were hunted in a manner that avoided excessive pain, distress, fear or other forms of suffering . 
23. Thus, if the contribution were to be assessed by only taking into account the main objective, 
Colombia would be of the view that the rational disconnection  mentioned by the complainants 
would mean that there is no contribution of th e EU Seal Regime to this policy objective. 
24. But this would be an incomplete analysis since it only took into account one policy objective 
pursued, but neglected to assess whether the measure contributed to the other objectives. Complainants expressly recognize this fact by making a contribution analysis of four different 
policy objectives
5. 
25. However, Colombia believes that the question still remains on how to assess a situation 
where the measure contributes to some policy objectives but not to others. In addressing this 
challenge, Colombia suggests that the Panel should perform a weighing and balancing process of 
the different objectives, where the contribution to  the most important one should be the guiding 
element in deciding whether this element of TBT Article 2.2 is fulfilled. 
26. In this case, the undermining of animal welf are by means of the aforementioned exceptions 
should be heavily weighted.  
27. Mr. Chairman, Distinguished Members of the Pa nel, Parties to the dispute and Third Parties, 
on behalf of my Government appreciates this opportunity to express our systemic views with 
respect to this case and hopes to contribute to th e legal debate and analysis. With this, I conclude 
our Oral Statement.  
                                               
2 Norway's FWS, para. 678. 
3 Ibid, para.677. 
4 Ibid. 
5 Ibid, para.676; Canada's FWS, para.479. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-5 - 
 
  ANNEX C-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF ICELAND 
1. Sealing has a long tradition in Iceland and the rational utilization of seals is part and parcel 
of Iceland's policy of sustainable utilization of all its living marine resources. In view of this, 
Iceland’s Written Submission and Oral Statement highlighted the fundamental difference in 
justifying trade restrictions by relying on conservation concerns on the one hand, and public morals concerns on the other. The former allows for a scientific and facts-based assessment 
on the merits of the arguments put forward for justifying the measure in question, while the 
latter is bound to be based on more subjective and less tangible arguments.  
 2. Iceland has therefore argued that the "public  morals" exception of Article XX(a) should not 
be relevant in deciding this case. Iceland has argued that the European Union has not 
provided satisfactory evidence for its claim that there exists a public morals concern in this case and that the EU has sought to rely on an overly broad and elastic interpretation of 
Article XX(a). 
 3. Furthermore, Iceland has argued that even if there was an actual public moral concern 
justifying trade restrictions on seal products, the many and broad exceptions contained in 
the EU’s Seal Regime means that neither the "necessity test" of Article XX(a) nor the requirements of the chapeau of Article XX's are met in this case.  
 
 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-6 - 
 
  ANNEX C-3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN 
Third Party Submission 
 
1. Justification invoked under Article XX(a) of the GATT 1994 
 1.1 "Public Morals"  
 
1. Japan would like to raise two points in connection with the justification provided by the EU 
as to the protection of "public morals" by the EU Seal Regime.  
 
2. First, although the concept of "public mora ls" may vary from one WTO Member to another, 
its nature of a moral norm of conduct shared by a community or nation implies that the norm is applied internally in a consistent manner. If, as the EU argues, the EU Seal Regime 
addresses the moral concerns of the EU public wi th regard to the presence on the EU market 
of seal products arising from the fact that they may have been obtained from animals killed in an inhumane way, this concern should logically apply to all seal products. Since the EU 
Seal Regime provides for broad exceptions in which the prohibition does not apply, it is 
questionable whether the Regime can be said to protect "public morals". In Japan's view, it appears to be contradictory to argue, on the one hand, that it is "morally" unacceptable to tolerate on the market seal products because they may have been obtained from animals 
killed in an inhumane way and, on the other hand, that it is "morally" acceptable that 
identical products obtained under certain broadly phrased exceptions are placed on the EU market. In Japan's view, the concept of "public morals" is a horizontal one and once a moral 
norm has been defined, its application must be internally consistent. 
 3. The EU argues that a distinction should be made between hunts conducted primarily for 
commercial purposes and other seal hunts with an allegedly non-commercial purpose, such 
as the subsistence of indigenous communities or the sustainable management of natural resources. According to the EU, in the first case, "it is warranted to adopt a high level of protection against the risk that seals will experience excessive suffering when they are 
killed" while in the second case "it may be justified, or even required, from a moral point of 
view to tolerate a higher level of risk to the welfare of seals."
1 
 
4. The EU claims that "the IC exception and the MRM exception are based on moral grounds" 
as well and that "[i]f the EU legislators have authorized the placing on the market of seal 
products under the IC exception and the MRM exception it is because they consider that the 
marketing of products complying with those exceptions does not raise the same moral 
concerns among the EU public."2 The EU therefore seems to define the moral value it wants 
to protect as the moral concerns of EU citizens about the presence of seal products on the EU market that are the result of commercial hunts by non-indigenous communities. It is not 
clear why seal hunts with non-commercial purposes do not generate any animal welfare 
concerns. 
 
5. Second, the Panel should carefully scrutinize the objective pursued by the EU Seal Regime. 
In that respect, Japan notes that the EU describes the EU Seal Regime as addressing the " 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  to the presence on the EU market of seal 
products" due to "the fact that seal products may have been obtained from animals killed in 
a way that causes them excessive pain, distress, fear or other forms of suffering."
3 The EU 
however considers also that "[t]hose concerns, nevertheless, vary according to the purpose of each type of hunt."
4  
 
                                               
1 EU First Written Submission, para. 39. 
2 Id. para. 363. 
3 Id. para. 33. 
4 Id. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  6. The above statements suggest that the objectiv e of the EU Seal Regime is not to prevent the 
presence "as such" of seal products on the EU market. The moral objections of the EU citizens are caused by concerns regarding the manner in which the animals may have been killed. But, these concerns are not absolute since, under certain conditions, the EU public is 
willing to accept the presence of seal products on the EU market without any guarantees 
that these seal products have not been obtained from animals killed in a way that causes them excessive pain, distress, fear  or other forms of suffering.  
 
1.2 The Necessity Requirement   7. The EU argues that through the General Ban,  the EU Seal Regime makes a very substantial 
contribution to its policy objective in two ways. But the EU only refers to the "General Ban", 
not to the exceptions which are an integral part of the EU Seal Regime. In assessing whether the EU Seal Regime makes a substantial contribution to its objective, the Panel will 
have to examine the exceptions under the EU Seal Regime as well. It is relevant for this 
analysis that the exceptions do not require that  the seal products have been obtained from 
animals that have been killed in a way that does not cause them excessive pain, distress, 
fear or other forms of suffering. 
 8. Japan notes that the EU argues that "the ex ceptions do not undermine the objective of the 
EU Seal Regime which, to repeat, seeks to address the moral concerns of the EU public."
5 
According to the EU, "[if] the EU legislators ha ve authorized the placing on the market of 
seal products under the IC exception and the MR M exception it is because they consider that 
the marketing of products complying with those exceptions does not raise the same moral 
concerns among the EU public."6 This appears to be a circular reasoning under which the 
scope of the "moral concerns" has been defined on the basis of the existing measures. 
 
9. Moreover, the EU Seal Regime provides for a general prohibition of seal products on the EU 
market and thereby, as the EU itself acknowledged, "aims at being very trade-restrictive."7 
In fact, a prohibition is the most trade-restrictive approach possible.8 The EU justifies this 
highly trade-restrictive measure by invoking a moral value that it qualifies to be of "high 
importance."9 The fact, however, that the EU Seal Regime tolerates a number of broad 
exceptions seems to undermine the justification invoked by the EU. In light of the foregoing, the Panel will have to carefully assess to which extent a measure which is of "the most 
trade-restrictive" type may be regarded as "contributing" to "protect public morals" in a 
situation where the same public morals do not appear to object to the placing on the market of seal products falling within the scope of the IC exception, the MRM exception and the 
Travellers exception.  
 1.3 The Chapeau  Requirement  
 
10. Japan notes that the rationale invoked by the EU is to address the moral concerns of the EU 
p u b l i c  w i t h  r e g a r d  t o  t h e  p r e s e n c e  o n  t h e  E U  m a r k e t  o f  s e a l  p r o d u c t s .  T h e  r e s t r i c t i o n s  imposed in order to achieve this objective ar e, however, subject to broad exceptions. The 
analysis to be carried out under the chapeau  of Article XX will therefore necessarily involve 
an examination of how these exceptions can be reconciled with the stated objective. Depending on the outcome of such analysis, it could be concluded that the scope and effect 
of the exceptions result in arbitrary or unjustifiable discrimination or in a disguised 
restriction on international trade. 
 2. Certain aspects of the claims made under Articles 5.1.2 and 5.2.1 of the 
TBT Agreement 
 2.1 Claim under Article 5.1. 2 of the TBT Agreement  
 
11. Article 5.1.2 itself has not yet been the subjec t to panel or the Appellate Body interpretation. 
The concept of "unnecessary obstacles to intern ational trade" has, however, been discussed 
                                               
5 Id. para. 363. 
6 Id. 
7 Id. para. 586. 
8 Appellate Body Report, China – Publications and Audiovisual Products , footnote 567. 
9 EU First Written Submission, para. 585. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  and examined in the context of other provisions  under the TBT Agreement and, in particular, 
under Article 2.2 of the TBT Agreement whic h has a structure similar to the one of 
Article 5.1.2. 
 
12. Both Articles 5.1.2 and 2.2 of the TBT Agreem ent refer in their first sentence to the concept 
of "unnecessary obstacles to international trade"  and in their second sentence elaborate on 
that concept. While both provisions elaborate on the obligation contained in their first 
sentence, the wording is different in both provisions. Article 5.1.2 second sentence includes 
the words " inter alia " indicating that the description contained therein is not exhaustive. 
Article 2.2 does not contain the same terms. Thus, the case-law developed by the Appellate Body in US – Tuna II  concerning Article 2.2
10 may provide useful guidance for the 
interpretation of Article 5.1.2. 
 13. In particular, it seems that the assessment of the consistency of the conformity assessment 
procedures with Article 5.1.2 implies the weighing and balancing of a number of different 
factors, including the trade-restrictiveness of the procedures, the contribution made by the 
procedures concerned to give the importing Member adequate confidence that products 
conform with the applicable technical regulations or standards and also the gravity of the 
consequences that would arise in case of non-conformity. As emphasised by the Appellate Body, in most cases, a comparison of the challenged measures and possible alternative measures should be undertaken. 
 
14. Regarding the trade-restrictiveness of the measure, Japan notes that the EU acknowledges 
that the requirement to obtain a certificate under the EU Seal Regime constitutes an 
obstacle to trade. The EU, however, considers that the procedure put in place by the 
Implementing Regulation cannot be claimed to have been prepared, adopted or applied with 
a view to or with the effect of creating unnecessary obstacles to international trade.
11 
 
2.2 Claim under Article 5. 2.1 of the TBT Agreement 
 15. There seems to be a discrepancy as to what  is covered by the terms "conformity assessment 
procedures" between the EU and Canada. Canada claims that "a conformity assessment 
procedure that cannot function due to the absence of a body to undertake or complete it – and that absence that can be directly attribut ed to the European Union – can by definition 
not be undertaken or completed as expeditiously as possible."
12 Contrary, the EU argues 
that "Article 5.2.1 requires Members to ensure that conformity assessment procedures, including the stage of accreditation/designation of conformity, are undertaken and 
completed as quickly as possible."
13 
 16. In Japan's view, it appears necessary for the Panel to examine in the first place what is 
covered by "conformity assessment procedures" in the present case. In particular, it appears 
important to clarify at the outset whether, as the EU claims, the conformity assessment 
procedures which must be undertaken and completed as quickly as possible include "the stage of accreditation/designation of conformity."  
 
17. The EU claims that "[t]he phrase "undertake and complete" covers all stages of the 
conformity assessment procedure and ha s been interpreted by the panel in EC – Approval 
and Marketing of Biotech Products  as meaning that, once an application has been received , 
procedures must be started and then carried out from beginning to end."
14 The 
circumstances and facts of that case were, howe ver, different from the present case. In the 
EC – Approval and Marketing of Biotech Products  case, the issue did not relate to the 
designation of the certifying body but rather to a de facto  moratorium on approvals. 
 18. In Japan's view, one central issue is therefore likely to be for the Panel whether a system 
whereby the accreditation/designation of the certifying body(ies) is dependent on 
applications being made by third party entities is consistent with the obligation that 
                                               
10 See Appellate Body Report, US – Tuna II (Mexico) , paras. 318-322. 
11 EU First Written Submission, para. 431. 
12 Id. para. 730. 
13 Id. para. 481. 
14 Id. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  "conformity assessment procedures are undertaken and completed as expeditiously as 
possible." 
 Third Party Oral Statement 
 
1. Article 2.2 of the TBT Agreement  
1.1 The objectives pursued by the EU Seal Regime 
 1. In its First Written Submission, the EU claims that the policy objective pursued by the 
measure at issue is to address the moral conc 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  
presence of seal products on the EU market. These concerns arise from the fact that these 
products may have been obtained from animals killed in a way that causes them excessive pain, distress, fear or other forms of suffering. The EU, however, states that these concerns 
may vary depending on the type of hunt.
15 In Japan's view, the EU's description of the policy 
objective it pursues is not so sufficiently detailed as to enable the panel to assess whether the measure at issue is unnecessary trade restriction to achieve the objective. 
 
2. If, as the EU claims, the objective of the measure is to address the moral concerns of the EU 
public arising from the fact that  seal products may have been ob tained from animals killed in 
an inhumane way, this concern should logically apply to all seal products. In Japan's view, 
as already explained in its Third Party Written Submission when discussing the concept of 
"public morals" under Article XX(a) of the GATT, "public morality" must be defined in an internally consistent manner. In fact, the EU, when examining the legitimacy of the policy 
objective of the measure, only focuses on the treatment of animals, and claims that "the 
way in which humans treat animals is a matter of public morals."
16 However, it appears that 
the objective of the measure at issue involves a single element (the treatment of animals) 
as claimed by the EU but other different elements (such as type of hunts) as explained by 
Norway and Canada. The EU fails to justify the legitimacy of an objective in which the treatment of animals is not the sole element but other elements are also taken into account.  
 
3. In Japan's view, it is crucial that the Pane l examines in detail the measure at issue to 
precisely identify the objective(s) pursued by the measure and assess whether all such objective(s) are legitimate before examining whether the trade-restrictiveness of the 
measure is necessary to fulfil such legitimate objectives. 
 1.2 The EU Seal Regime needs to be examined as a whole 
 
4. The measure at issue is the EU Seal Regime. Although the EU Seal Regime include different 
elements, namely the General Ban, the IC exce ption, the MRM exception and the Travellers 
exception, Japan believes that the EU Seal Regime should, for the purposes of Article 2.2 of 
the TBT Agreement, be examined as a whole.
17  
 5. In Japan's view, a similar integrated approach should be followed in the present case. For 
instance, when examining the trade-restrictive character of the measure at issue, the EU 
distinguishes between, on the one hand, the General Ban which "restricts trade" since it provides for a prohibition and, on the other hand, the exceptions which are not trade-
restrictive because, according to the EU, "they allow trade which would otherwise be 
prohibited by the General Ban".
18 However, this approach does not make sense. The EU Seal 
Regime should be viewed as a whole since the exceptions exist only because of the General Ban. In Japan's view, the EU Seal Regime as a whole has a limiting effect on trade since seal 
products may be placed on the EU market only if the conditions to benefit from one of the 
three exceptions are fulfilled.  
 
6. The same integrated approach is also import ant when examining the degree of contribution 
to the legitimate objective. In its First Written Submission, the EU claims that "through the General Ban the EU Seal Regime makes a very substantial contribution to its policy 
                                               
15 Id. para. 33. 
16 Id. para. 61. 
17 See Appellate Body Report, EC – Asbestos , para. 64. 
18 EU First Written Submission, para. 358. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  objective."19 As Japan noted in its Third Party Written Submission, this justification only 
refers to the General Ban but not to the exceptions. In this context, the Panel has to examine not only the General Ban but also the exceptions.  
 
2. De Facto  Discrimination under Articles I:1 and III:4 of the GATT 1994, and 
Article 2.1 of the TBT Agreement 
 
7. In the context of the Article 2.1 of the TB T Agreement claim, the EU states that Canada 
takes an improper shortcut to argue that a particular category of its imports (i.e., seal products derived from non-Inuit commercial hunts) are "like" a particular category of imports of Greenlandic seal products (i.e., those derived from Inuit hunts) and thus both 
should be treated equally. The EU then submit s that "in order to examine whether there is 
less favourable treatment, the group of imported products (in particular, from Canada) and the group of products from other origin chosen (in particular, Greenland) must take into 
account the existence of the regulatory differentiation made in the Basic Regulation."
20 
According to the EU, there is no discrimination since "the Canadian seal products in similar 
situation  to those of Greenland (i.e., those derive d or obtained from tradition hunts by Inuit 
and other indigenous communities for the purpose of their subsistence) receive identical 
treatment ."21  
 8. Likewise, in the context of the Article I:1 of  the GATT 1994 claim, the EU argues that there 
is no discrimination because "a sub-category of like products (i.e. those obtained from Inuit 
and other indigenous communities for the purpose of their subsistence) is treated in the same manner by the EU Seal Regime regardless of whether those products originate in 
Canada, Norway or Greenland".
22 
 9. Through these statements, the EU appe ars to argue that there will be no de facto  
discrimination, when all products within a sub- category of like products are treated in the 
same manner regardless of the origin of the products. This may amount to rejecting the possibility that measures which are an origin-neutral on its face may be de facto  inconsistent 
with Article 2.1 of the TBT Agreem ent or Article I:1 of the GATT 1994. 
 
10. Japan wishes to recall in this respect that as the Appellate Body explained in the previous 
dispute, a panel, after ascertaining the detrimental effects on a group of imports, must then 
determine whether such detrimental impact stems exclusively from a legitimate regulatory 
distinction rather than reflecting discriminatio n against the group of imported products under 
Article 2.1 of the TBT Agreement.
23 This EU's position may be justified in so far as it is also 
demonstrated that the different sub-category of like products, which detrimental impact on 
imports exclusively stems from, is legitimate  under Article 2.1 of the TBT Agreement. 
 11. Thus, it cannot be concluded that there is no violation of Article I:1 of the GATT 1994 or 
Article 2.1 of the TBT Agreement merely becaus e the measure at issue treats identically all 
products of each of the sub-categories of the like product on the basis of regulatory 
distinctions that are, on their face, origin-neutral. 
 
12. Finally, the EU appears to argue that the same legal standard under Article 2.1 of the 
TBT Agreement applies to claims under Article III:4 of the GATT 1994.
24 Japan wishes to 
note that the test developed by the Appellate  Body "in the context of Article III:4 of the 
GATT 1994 [is] instructive in assessing the meaning of "treatment no less favourable."25 
However, this is so "provided that the specific context in which the term appears in Article 2.1 of the TBT Agreement is taken into account",
26 and such context includes 
Article 2.2 and the preamble of the TBT Agreem ent. Thus, although these two provisions are 
                                               
19 Id. para. 359. 
20 Id. paras. 292-293. 
21 Id. para. 294. 
22 Id. para. 547. 
23 Appellate Body Report, US – Clove Cigarettes , para. 182. 
24 EU First Written Submission, paras. 502, 505. Th e EU also claims that the legal standard under 
Article 2.1 of the TBT Agreement applies to Article I:1 of the GATT 1994. Id. paras. 528, 539. 
25 Appellate Body Report, US – Clove Cigarettes , paras. 180, 215. 
26 Id. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  similar, they are situated in a different context and "the scope and content of these 
provisions" is not identical.27  
                                               
27 Appellate Body Report, US – Tuna , para. 405. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX C-4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS MEXICO* 
I. INTRODUCTION 
 
1. Mexico expressed its intention to participate as a third party in these proceedings because they 
involve systemic issues relating to the proper and coherent interpretation and application of the provisions at issue in this dispute. 
II. THE MEASURE AT ISSUE 
 2. Mexico considers that the interests or concerns pursued by the European Union through the various exceptions should be considered part of the main objective pursued via the measure in 
question. Consequently, the Panel must consider the measure as a whole, considering the 
three exceptions as part of the measure. The foregoing is in line with what was stated by the Appellate Body in EC – Asbestos .
1 
3. The Panel in US – 1916 Act (EC)  noted that panels are not bound by a Member's 
characterization of its measure.2 In this case, the Panel will need to analyse the regulatory 
framework of the European Union in relation to trade in seal products. 
III. LEGAL ARGUMENTS 
 A. Interpretation of most-favoured-na tion treatment and national treatment 
obligations 
 
4. Mexico observes that both the General Agr eement on Tariffs and Trade of 1994 (GATT 1994) 
and the Agreement on Technical Barriers to Trade (TBT Agreement) contain 
most-favoured-nation (MFN) and national treatment (NT) obligations; however, the scope and 
application of those obligations and their review is different in each of the agreements mentioned. The different obligations under the WTO Agreements  must be interpreted in a harmonious manner 
that gives meaning to the relevant provisions, since they are applied cumulatively. This cannot be 
taken to imply that the obligations of one agreem ent can be replaced, excluded or subsumed by 
the obligations of another.
3 Mexico therefore disagrees with the European Union's arguments for 
transposing an analysis under Article 2.1 of the TBT Agreement to the GATT 1994. 
1. Legal examination of Article I:1 of the GATT 1994 
 5. In order to establish a violation of Article I:1 of the GATT 1994, three elements need to be 
demonstrated: (i) that the imported products at issue are like products; (ii) that the measure at 
issue accords an advantage, favour, privilege or immunity to products originating in or destined for any country; and (iii) that this advantage, favour, privilege or immunity is not accorded 
immediately and unconditionally to the like product originating in or destined for the territories of 
other Members. 
6. As regards the third element, the European Union states that the observations made by the 
Appellate Body in the context of Article 2.1 of  the TBT Agreement with respect to the term 
"treatment no less favourable" must apply mutatis mutandis  in the context of Article I:1 of 
the GATT 1994, particularly in relation to the phrase "any advantage … shall be accorded … unconditionally".
4 
                                               
* This text was originally submitted in Spanish by Mexico. 
1 Report of the Appellate Body, EC – Asbestos , paragraph 64. 
2 Report of the Panel, US – 1916 Act (EC) , paragraph 6.51. 
3 Report of the Panel, US – Upland Cotton , paragraph 7.1003. 
4 First written submission by the European Union, paragraph 539. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-13 - 
 
  7. Mexico does not agree with this interpretation. By bringing the examination of 
the MFN obligation provided for in the TBT Ag reement into the context of the GATT 1994, the 
scope and application of that obligation in th e GATT 1994 are impaired, since Article 2.1 of the 
TBT Agreement is limited to a single type of measure (i.e. technical regulations as defined 
in Annex 1.1 of the TBT Agreement). Mexico cons iders that, in interpreting Article I:1 of the 
GATT 1994, the Panel must focus on the text of th at article within the context of the GATT 1994, 
including the general exceptions clause in Article XX. 
2. Legal examination of Ar ticle III:4 of the GATT 1994 
 8. For a violation of Article III:4 of the GATT 19 94 to be established, the Appellate Body in Korea – 
Various Measures on Beef
5 stated that three elements must be satisfied, namely: (i) that the 
imported and domestic products at issue are like products; (ii) that the measure at issue is a law, 
regulation or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution or use; and (iii) that the imported  products are accorded less favourable treatment 
than that accorded to like domestic products. 
9. For the examination of the third element, it is necessary to analyse whether the measure in 
question modifies the conditions of competition in the relevant market to the detriment of 
imported products.
6 In this connection, Mexico does not agree with the European Union's position 
that the legal parameters for the purpose of analysing the NT obligation in Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement should be the same.
7 Mexico considers that, 
in interpreting Article III:4 of the GATT 1994, the Panel should focus on the text of that article 
within the context of the GATT 1994, including the general exceptions clause in Article XX. 
 3. Legal examination of Arti cle 2.1 of the TBT Agreement 
 
10. Regarding MFN treatment and national trea tment obligations under Article 2.1 of the 
TBT Agreement, Mexico notes that their scope and application are more restricted in that they 
refer only to technical regulations and not to any "measure" as provided for in the GATT 1994. 
However, as in the case of the GATT 1994, these obligations under the TBT Agreement prohibit 
de jure  and de facto discrimination. 
11. The Appellate Body in US – Clove Cigarettes  determined the elements that must be satisfied 
for a violation of the NT obligation in Article 2.1 to be established8: (i) the measure at issue must 
be a technical regulation; (ii) the imported and domestic products at issue must be like products; 
and (iii) the treatment accorded to imported produc ts must be less favourable than that accorded 
to like domestic products. 
12. The first element must be assessed in the light  of the definition of "technical regulation" in 
Annex 1.1 of the TBT Agreement. In the context of  Article 2.1, the measure in question can only 
be of one type in order to satisfy that definition. 
13. Regarding the likeness examination, the Appellate Body in US – Clove Cigarettes  rejected the 
Panel's interpretation according to which that examination must focus on the legitimate objectives and purposes of the technical regulation, and reverted to the analysis of Article III:4 of the GATT 1994 which takes account of the competitive relationship between products. However, it 
pointed out that the regulatory purposes of technical regulations could be evaluated under 
traditional criteria to the extent that they have an impact on the competitive relationship between the products concerned.
9 
14. Regarding the likeness element, the European  Union considers that the relevant group of 
products comprises those that comply with the measure as opposed to those that do not comply.10 
If the Panel were to accept the European Union's approach involving the creation of subcategories 
in the group of like domestic and imported produc ts based on the regulatory distinction of the 
                                               
5 Report of the Appellate Body, Korea – Various Measures on Beef , paragraph 133. 
6 Report of the Appellate Body, Korea – Various Measures on Beef , paragraph 137. 
7 First written submission by the European Union, paragraph 505. 
8 Report of the Appellate Body, US – Clove Cigarettes , paragraph 87. 
9 Report of the Appellate Body, US – Clove Cigarettes , paragraphs 117-120. 
10 First written submission by the European Union, paragraph 254. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-14 - 
 
  measure in question, the discrimination provis ions of Article 2.1 of the TBT Agreement 
and Articles I:1 and III:4 of the GATT 1994 would be  deprived of all meaning when it comes to 
their application in de facto discrimination cases. 
15. The European Union also appears to be alte ring the likeness element of the discrimination 
obligation by adding a "similar situation" requirement. Under this interpretation, the analysis of 
"treatment no less favourable" would not merely co ncern like products, but like products that are 
also in a similar situation. There is no legal basis for including this requirement in the 
discrimination analysis. If the negotiators of the WTO Agreement had intended to include 
additional requirements such as this one, they would have done so explicitly. The "similar situation" requirement is clearly a deviation from the already well-established approach used by panels and the Appellate Body for determining de facto discrimination. 
16. Finally, let us turn to the third element, wher e, in the matter of technical regulations, another 
examination is required in the case of de facto discrimination. In other words, it is not enough to establish that the technical regulation in question modifies the conditions of competition in the 
relevant market to the detriment of the imported products, but an analysis also has to be made to 
determine whether this de facto detrimental impact derives from a legitimate regulatory distinction and does not reflect discrimination, and whether the technical regulation is impartial. 
17. The concept of "legitimate regulatory distin ction" was introduced by the Appellate Body 
in US - Clove Cigarettes .
11 This analysis was based on the difference between the GATT 1994, 
which strikes a balance between Article III:4 and the general exceptions contained in Article XX, and the TBT Agreement which does not contain a general exceptions clause. In other words, the 
genesis and basis of the concept of "legitimate re gulatory distinction" and hence the concept of 
"impartiality" reflects the absence in the TBT Agre ement of a general exceptions clause equivalent 
to Article XX. Consequently, there is no basis for importing these two concepts into Articles I:1 
and III:4 of the GATT 1994. 
18. Mexico notes, therefore, that these addition al particularities (i.e. legitimate regulatory 
distinction and impartiality) cannot simply be transposed to the Article III:4 examination, since 
they arise from a context, object and purpose specific to the TBT Agreement, and from the 
difference between the GATT 1994 and that agreement. 
19. Mexico further notes that the European Union appears to believe that, in addition to the 
above-mentioned examination, there is also a requirement to demonstrate that the objective 
pursued by the technical regulation is legitimate . In the European Union's view, if the objective 
pursued is legitimate, then so is the regulatory distinction.
12 In other words, the European Union 
justifies the legitimate objectives pursued by the exceptions to the measure and argues that, if the 
objectives pursued by the exceptions are legitimate, the regulatory distinction must also be 
considered legitimate.13 The European Union's argument creates a relationship between the 
concept of "legitimate objective" and that  of "legitimate regulatory distinction". 
20. In this connection, Mexico considers that the European Union's interpretation of Article 2.1 of 
the TBT Agreement is incorrect. The analysis of "treatment no less favourable" is independent from the determination of the legitimacy of the object ive pursued by the Member adopting the technical 
regulation. The fact that an objective is legitimate within the meaning of Article 2.2 of 
the TBT Agreement does not mean that the technical regulation is being applied in an impartial 
manner or that the distinction it makes between the products is legitimate. 
21. The concept of "legitimate regulatory distinct ion" was developed by the Appellate Body when 
interpreting the concept of "treatment no less favourable" in Article 2.1 of the TBT Agreement. 
The concept of "legitimate objective" can be found  in Article 2.2 of the TBT Agreement, and was 
expressly omitted from Article 2.1 of the TBT Ag reement. This omission is important and must 
have some meaning
14 because the two provisions deal with different aspects of the same measure 
(discrimination on the one hand and trade restrictio n on the other). It would therefore be incorrect 
to read the concept of "legitimate objective" into Article 2.1. 
                                               
11 Report of the Appellate Body, US – Clove Cigarettes , paragraph 181. 
12 First written submission by the European Union, paragraph 261. 
13 First written submission by the European Union, paragraph 261. 
14 Report of the Appellate Body, Japan – Alcoholic Beverages II , paragraph 111. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  B. Article 2.2 of the TBT Agreem ent: Objective of the measure 
 22. The European Union argues that its measure a ddresses moral concerns of its population with 
respect to seal hunting, which vary according to the purpose of each type of hunting.
15 It would 
appear that the moral concerns alleged by the European Union in fact run counter to the animal 
welfare concerns reflected in its measure. 
23. The Panel should therefore first analyse the legitimacy of the principal objective of the 
measure. The list of legitimate objectives referred to in Article 2.2 of the TBT Agreement may 
serve to provide a benchmark when considering other objectives not listed in that article as legitimate; likewise, the objectives referred to in the sixth and seventh recitals of the preamble to 
the Agreement, and the objectives recognized in other covered agreements may also serve to 
provide guidance and to inform the Panel's analysis.
16 
24. Although the TBT Agreement recognizes the ri ght of WTO Members to establish for themselves 
the objectives of their technical regulations, the Appellate Body has indicated that panels are not 
bound by a Member's characterization of the objectives it pursues through its measure, but must 
objectively and independently analyse the measure and what the WTO Member seeks to achieve thereby, taking into account the text of the meas ure, and its legislative history, design, structure 
and application. In this case in particular, Mexico considers that an important issue to be taken 
into account in the above-mentioned assessment will be the relationship of the principal objective of the measure and its interaction and consistency with the aims pursued by each of the exceptions. 
C. Relationship between GATT Ar ticle III:4 and GATT Article 11 
 25. Mexico notes that both complainants argue that the measure at issue is inconsistent with both 
Article III:4 of the GATT 1994 and Article XI of th e GATT 1994. Mexico calls on the Panel to be 
mindful of the possibility that a measure may contain certain elements that violate Article III:4 of the GATT 1994 and others that violate Article XI:1  of the GATT 1994, since these provisions have 
different fields of application. This possibility was recognized by the Panel in India - Autos .
17 
D. The debate over unilateralism and multila teralism in the analysis of the preamble 
to Article XX of the GATT 
 
26. Mexico notes that the European Union justifies its measure as a public morals issue 
under Article XX(a) of the GATT 1994, but that justification essentially derives from a concern over animal welfare in relation to seals (i.e. over the manner and purpose of slaughtering seals). 
27. In this case it appears that the European Union has decided to deal unilaterally with issues 
relating to seal hunting in the territory of other Members instead of joining in a multilateral effort to address those issues. That being the case, it would be relevant for the Panel to take into 
consideration the points noted by the Appellate Body in US - Shrimp , in its analysis of the concept 
of "unjustifiable discrimination" referred to in th e chapeau of Article XX of the GATT 1994, where it 
emphasized the importance of participating in a multilateral effort instead of unilaterally developing and imposing internal policies that affect international trade.
18 
E. Analysis of Article XX(a) of the GATT 1994 
 28. The Panel should recognize the difference in the language used in relation to the different 
categories of exceptions contained in Article XX of the GATT 1994.
19 Mexico notes that 
paragraph (a) of Article XX has similarities with paragraphs (b) and (d) of the same article, for 
which a review of necessity is required. Therefore, the determinations made in relation to the 
exceptions under paragraphs (b) and (d) of Arti cle XX of the GATT 1994 are of illustrative import 
for the Panel. 
                                               
15 First written submission by the European Union, paragraph 33. 
16 Report of the Appellate Body, US – Tuna II (Mexico) , paragraph 313. See also the Report of the 
Appellate Body, US – COOL , paragraph 370. 
17 Report of the Panel, India - Autos , paragraphs 7.223, 7.224 and 7.296. 
18 Report of the Appellate Body, US - Shrimp , paragraphs 161 to 176. 
19 Report of the Appellate Body, US - Gasoline , paragraphs 44 and 45. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-16 - 
 
  29. Notwithstanding the foregoing, there is an important difference in the interpretation and 
application of Article XX(a) of the GATT 1994, which gives rise to systemic concerns. This difference relates to the nature of the su bject of the exception concerned: public morals. 
In this case, Mexico considers that the Panel must take account of the singular nature of the 
concept of public morals in the context of  the general exception. At the same time, 
Mexico considers that the Panel should take care to ensure that its interpretation of Article XX(a) of the GATT 1994 does not give rise to any abuse in the use of that exception to justify any 
kind of measure. 
30. Paragraph (a) must make an exception for meas ures necessary to protect the public morals of 
a Member from the disciplines of the GATT 1994, an d at the same time recognize that the public 
morals of that Member may not be the same as those of other Members. 
31. Mexico notes that the term "public morals" ha s not been interpreted by the Appellate Body but 
has been addressed by the panels in China - Publications and Audiovisual Products  
and US - Gambling .
20 Taking account of the matters noted in those disputes, it would appear that 
the singular nature of the term "public morals" in the exception under Article XX(a) of 
the GATT 1994 supports an interpretation limiting th e scope of that exception to the protection of 
public morals within the territory of each Member. 
 
 
                                               
20 Report of the Panel, China - Publications and Audiovisual Products , paragraph 7.759 (footnotes 
omitted). WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
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  ANNEX C-5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NAMIBIA 
Introduction 
 
1. Namibia demonstrated in the first written submission (Nam-2) and in the oral statement 
(Nam-3) that the EU has violated its obligations under the Agreement on Technical Barriers to Trade (TBT), and more specifically the obligation embedded in Articles 2.1, 2.2 and 5.1 of TBT 
and its obligations under Articles I, III, and XI of the GATT.  
 2. Namibia has a long history of harvesting Cape fur seals ( Arctocephalus pusillus pusillus ) that 
spans from the 17
th century. The 1893 Act stipulated that no seals might be taken without a 
permit. In 1909 a limit was placed on the harvesting season.  Legislative framework was 
further put in place with the enactment of th e Sealing and Fisheries Proclamation in 1922 and 
the Sealing and Fisheries Ordinance in 1949. The Sea Birds and Seals Protection Act, No 46 of 
1973 repealed the previous legislation to include specific regulations on age, size, sex and 
location of seals.1  
 
3. With the Independence of Namibia in 1990, the Sea Fisheries Act, No 29 of 1992 was 
promulgated but it was repealed together with the Sea Birds and Seal Protection Act and was replaced by the Marine Resources Act, 2000 (Act No. 27 of 2000) which draw on modern instruments and best practices. This Act brough t the date of commencement of the harvesting 
season forward from the 1st of August in earlier years to the 1st of July to 15 November.  The 
harvesting of seals is conducted in terms of th e Regulations related to exploitation of Marine 
Resources made under the Marine Resources Act, 2000. The Marine Resources Act 2000, 
complies with the provisions of the United Na tions Convention in the Law of the Sea of 1982.
2 
 4. Presently, harvesting is only permitted until mid-November when the breeding season 
commences. In terms of the Marine Resources Act 2000, harvesting is controlled through 
Total Allowable Catches ("TAC") from the best sci entific evidence available. Namibia ascribes 
to the implementation of ecosystem based management and this is taken into account in the conservation and management of all commercially harvested living marine resources, 
including seals. Namibia is the only developing country where commercial seal harvesting is 
taking place. Globally, Namibia ranks 3
rd behind Denmark and Canada.3  
 
Seal Stock Status 
 5. Cape fur seals are distributed along the southern and western coasts of Southern Africa. They 
aggregate at 42 colonies extending from Baia dos Tigres in southern Angola to Black Rocks 
near Port Elizabeth in South Africa. In Namibia, seals occupy twenty six colonies along the coast. Colonies are located either on the mainland or on small, rocky islands and are either breeding or non-breeding sites.
4 
 
6. The Namibian Cape fur seal population wa s estimated for the year 2011 at 1.2 million. 
Scientists have estimated the food consumption ra te for the Cape fur seal at 1.4 to 6.8 kg per 
day per animal, depending on the age, the sex and reproductive status. Using the best 
available information, scientists have estimated the annual consumption at around 1.68 million ton of food per year. Their diet compositions mainly consist of commercial important 
fish stock such as Hake, Horse Mackerel and Pilchard. This figure (1.68 million tons of food) is 
three (3) times more than all TAC issued to the Namibian fishing industry of commercial important stock added together.
5 
 
                                               
1 NAM-2, pg 4 and pg 10, footnote 10; NAM-3, pg 1, para 1.4 
2 Regulation 20 is discussed in NAM-2, pg 9; NAM-3, pg 1, para 1.5 
3 NAM-2, pg 4; NAM-3, pg 1, para 1.6 
4 NAM-2, pp 4-5; NAM-3, pg 2, para 2.1 
5 NAM-2, pg6; NAM-3, pg 2, para 2.2 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-18 - 
 
  7. Namibia's management decisions are based on the best available scientific advice and 
precautionary principle as stipulated in section 38 (2) of the Marine Resources Act 2000.6 
 Legislative framework: Su stainable Management  
 
8. Namibia has comprehensive legislation on fishing, including seal harvesting. Article 95(l) of 
the Namibian Constitution, the Supreme Law of Na mibia, provides that the State shall actively 
promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the 
"maintenance of ecosystems, essential ecological processes and biological diversity of Namibia 
and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future…. " Further, Namibia has the Marine Resource Act, 2000 
(Act No. 27 of 2000) and the Marine Fisherie s Regulations (Government Notice No. 241, 
Regulations relating to the exploitation of marine resources, 2001). 
7 
 
9. In 2012, the Marine Resources Act won Kungsfen an (Swedish Sea Food Award) as the world's 
most inspiring, innovative and influential instrument on the protection of oceans and coasts that allowed Namibia to successfully manage its marine resources and instituted a more 
ecologically and economically sustainable fishing industry. 
8 
 Monitoring of Seals in Namibia  
10. Namibia ensures that TAC's are set for the purpose of ensuring that the harvest is conducted 
sustainably with effective monitoring and enforcement mechanisms. The Cabinet  (the Executive branch of the State) is required  to endorse TAC for each year to ensure 
sustainability. Seal harvesting is monitored by Fisheries Inspectors to ensure that it is carried 
out in accordance with the Marine Resources Act 2000.   In its management of the seals, Namibia is also guided by policies, best practices, standards and other instruments such as 
the FAO Code of Conduct fo r Responsible Fisheries. 
9 
 Markets: Exportation of Namibian Seal Products   
11. Exportation of seal products goes back to the 19
th century with respect to the United Kingdom 
and Germany. In addition, before the EU seal regime, Namibia used to export substantial volumes to Greece, Italy, Germany and Sweden amongst others. The fishing sector is the 
second highest contributor to the GDP from 2 008 to 2011 ranges from 3.7% to 5.3%. In 
addition, employment in the seal sector is an important element especially to coastal communities (Henties Bay and Luderitz). Due to  the EU prohibition these markets are lost, 
resulting in severe loss of income and unemployment. This has increased poverty levels in the 
country. 
10 
 12. Seals are considered as a natural resource from which Namibia can derive consumptive and 
non-consumptive benefits. The seal products derived from the commercial seal harvesting are 
pelts of pups (exported and used locally), genitalia  of seal bulls (for export to Asia), omega 3 
oils and capsule, and by-products which include oil (medicinal value), meat, meat-meal, bone-
meal and leather products such as shoes, purses and jackets. 
11 
 13. Namibia's statistics recorded that the dependen cy ratio in the above coastal towns is 1:6 on 
average. In the town of Henties Bay, during th e harvesting season, the sealing industry is the 
biggest employer. In the leather industry, seal products sustains a substantial number of communities and in the tanning industry, a sign ificant portion of employment opportunity is 
supported by seal skins. The EU ban undermi nes the expansion in growth of the sealing 
industry, thereby exacerbating the high unemp loyment rate in Namibia, which currently 
stands at 51%. 
12 
 
                                               
6 NAM-2, pg 7; NAM-3, pg 2, para 2.3 
7 NAM-2, pg 8, para 3; NAM-3, pg 3, para 3.3 
8 NAM-2, pg 9; NAM-3, pg 3, para 3.2 
9 NAM-2, pp 8-9 
10 NAM-2, pp 10-11; NAM-3, pg 3, para 5.1 
11 NAM-2, pg 11; NAM-3, pg 4, para 5.2 
12 NAM-2, pg 12 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-19 - 
 
  14. Unlike the entirety of the Northern hemisphere , in Namibia – the only sealing nations south of 
the equator – seals are NOT hunted, they are harvested. As such, certain misgivings are not applicable to Namibia. Namibia has always been cooperative and welcoming of views and suggestions on how to improve animal welfare during the harvesting process. It is admitted 
that, even in the EU, addressing such conc erns does not guarantee establishment of a 
hundred percent fool-proof system, not even in slaughter houses.
13 
 
15. Namibia endeavours to maximize animal welfare between the brief period when a pup become 
conscious of human presence and its death. Being systematic is a pre-requisite in any 
conservation. Namibia harvests from three out of twenty six colonies, unlike elsewhere, where 
hunting accesses the entire seal population at once.14 
 
16. Employees in the seal industry are all indi genous Namibians and have acquired harvesting 
skills as per the Marine Resource Act, 2000. Taken together, the economic ripple effect 
derived from the exportation of seal products is of great benefit to the Namibian employment 
figures.15 
 
The Discriminatory Nature of the EU Seal Regime 
 
17. The EU Seal Regime states, in its preamble, the reasons for its existence, necessity and 
presumably its goals and objectives. Yet, its design, structure, and operations amount at the 
same time to: (a) unfair economic restrictions; (b) violations of WTO Agreements; (c) 
violations of TBT Agreement and (d) contradicting and undermining own goals and 
objectives.16 
 
VIOLATION OF TBT and GATT  (a) TBT and GATT 
 
18. Namibia respectfully requests the Panel to find  that the EU, by adopting a series of measures 
described below as ‘the EU Seal Regime', has violated its obligations under the TBT, and more 
specifically the obligations contained in Articles 2.1 (by discriminating across like products 
based solely on their origin), Article 2.2 (by adopting unnecessary measure), and Article 5.1 of TBT (by failing to provide a conformity assessment-procedure). Were the Panel to take the 
view that the measures described as ‘the EU Seal Regime' do not properly come under the 
disciplines of the TBT Agreement, then Namibi a submits that they should be understood as 
internal measures, and the EU has anyway, violated its obligations under Articles I, III and XI of GATT.
17 
 
19. Namibia respectfully submits that the EU me asures cannot be justified through recourse to 
Article XX of GATT. The Panel, following its case law in this respect so far, should first review 
the consistency of the challenged measures with the TBT Agreement, and revert to an 
examination under the GATT only if it feels that the challenged measure does not come under the purview of the TBT. The challenged measur e constitutes a ‘technical regulation' in the 
sense of Annex 1 to the TBT Agreement since (a) it applies to an identifiable group of 
products (seal products), (b) it explains the product characteristics that should not be present for products to circulate in the EU market (all seal products are, in principle, banned), and (c) compliance with the product characteristics is a necessary pre-condition for market access.
18 
 
(b) The Reasons Why the EU Violates the TBT  
20. Namibia is in agreement with the EU in respect of protection of animal welfare. The purpose of 
the WTO, with the exception of TRIPs that call for common policies in specific areas, is to harmonize conditions of competition within and not across markets. The key obligation in the TBT-context (and the GATT-context as well) is that, once the EU has revealed its preference 
to pursue a legitimate objective, products of WTO Members and products originating in the EU 
                                               
13  NAM-2, pg 13, para 7 
14  NAM-2, pg 9, para 4 
15  NAM-3, pg 5, para 6.4 
16  NAM-2, pp 14-18 
17  NAM-2, pg 19, para 11 
18  NAM-2, pg 20 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-20 - 
 
  will be placed in equal footing: those that respect the EU measure will be allowed to circulate 
in the EU market, and those that do not, will be denied market access. Further, the EU must 
choose a measure that is necessary to achieve its social preference, that is, the measure that constitutes the least restrictive option for international trade. The EU has failed to live up to 
this test.
19 
 21. The EU does not prohibit sales of seal products from its market, it prohibits some sales only. 
Three exceptions have been included in the EU relevant Regulations which allow seal products 
bought for personal use, produced by indigeno us communities, as well as conforming with 
marine resources management to be traded inside the EU. These three exceptions have 
nothing to do with animal welfare. Significantly, the Preamble states that the objective of the 
EU measure is protection of animal welfare.  
 22. The EU does not prescribe a particular produc tion method that must be followed for seals 
products to be legally sold in its market. It is a fact that indigenous communities kill seals in 
rather brutal ways, and Canada's submission to this effect is quite telling. Seals products bought for personal use could be seals products from seals that have been hunted in equally 
brutal ways.  
 23. The exception in favour of indigenous communities is limitless: the Inuit communities can 
produce and sell in the EU market without any hunting method being prescribed. Rationally, 
the Inuit communities will hunt more than before, since the EU market will be left to their 
mercy, since their only competition will come from goods imported for personal use as well as the marine resource management-related production, and we all agree that these two sources 
of supply are limited in volume. Thus, assuming  demand remains constant, production by the 
Inuit communities will ri se to fill the gap.  
 
24. All of the above considerations suggest that: (a) the EU measure in name aims to protect 
animal welfare, but in practice does not, since there is no guarantee that fewer seal products will circulate in the EU market, and there is no guarantee as to the hunting method; (b) the measure is discriminatory since the Inuit communities of Greenland are accorded a trade 
advantage (sale of seals products) that other WTO Members (including Namibia) are not. The 
EU has conceded that the seals products produc ed by the Inuit communities and elsewhere in 
the world are ‘like' goods.  
 
25. The ‘EU Seal Regime' fails the necessity-requirement, as stipulated in the GATT, for one 
simple reason: if the regulatory objective pursued is protection of animal welfare, then the 
measure that meets the requirement must at th e very least distinguish between methods that 
meet and methods that do not meet this object ive. The ‘EU Seal Regime' imposes an outright 
ban on sales of seal products produced outside the EU, and this a disproportionate cost on international trade flows, even though some or many of them might genuinely meet the 
regulatory objective pursued by the EU. The ‘EU Seal Regime' does not even provide for 
conformity assessment, so there is no way th e EU can ever know whether seal products 
originating in other WTO Members do or do not protect animal welfare.  
 
(c) The ‘EU Seal Regime' Violates the GATT 
26. Seal products originating in countries other than the defined indigenous communities in the 
sense of the challenged measure (Regulation 737/2010), cannot be marketed in the EU. Since 
the EU has conceded that products originating in the Inuit communities and elsewhere are ‘like', the only reason why some products will and some will not be marketed in the EU is the 
origin of the products. This is a clear violation of Article I of the GATT.
20 
 
27. Seal products produced by the Inuit communities  can be sold in the EU market. Seal products 
originating in Namibia cannot be sold in the EU market, since Namibia does not include any 
indigenous communities in the sense of Regula tion 737/2010. By allowing domestic products 
to be marketed, and simultaneously denying the same opportunity to imported goods, the EU 
is according less favourable treatment to imported like goods. This is so because the only 
                                               
19 NAM-2, pg 22, para 12 
20 NAM-2, para 20 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-21 - 
 
  reason why the EU is distinguishing say between Inuit and Namibian seals is their origin. This 
is a clear violation of Article III of the GATT.21 
 
28. With respect to the personal use, we observe that the measure amounts to an import 
restriction: only those travelling abroad (Article 4 of Regulation 737/2010) can benefit from 
this exception when re-entering the EU market. The measure then is an import quantitative 
restriction since travelers cannot import as many seal products as they wish but only those 
that are destined for personal use. The EU is thus, with respect to the personal use-condition 
only, acting in violation of Article XI of the GATT.22 
 
29. If the objective of the EU is animal welfare,  EU would have to invoke Article XX (b) of the 
GATT. Article XX (g) of the GATT does not even come into the frame, because seals are not an 
exhaustible natural resource. Further, Article XX (b) of the GATT would require from the EU to demonstrate that its measures are necessary to protect animal life or health. The EU does not 
prescribe any method for hunting seals. It does not even limit the amount of seals killed 
through its measures. The measure is thus, unnece ssary to reach the stated objective, since 
neither the amount of seals sold in the EU will be limited, nor the hunting method will change. 
Further, the EU fails the chapeau-test since pr oducers producing like goods (and thus finding 
themselves in ‘similar conditions' with the Inuit communities) cannot market their goods in 
the EU market.
23 
 
30. Were the EU to invoke that its measure aims at protecting the manner in which seals are 
being hunted by indigenous communities like the Inuit, it would have to, at the very least, describe first this method and then explain which provision of Article XX of the GATT is 
relevant. It did not prescribe any production process. Moreover, Article XX of the GATT 
includes an exhaustive list and none of the sub-paragraphs of this provision could be 
construed as adequate to entertain similar claims.
24 
 
Conclusions 
 31. Namibia demonstrated in the first written submission and in the oral statement that the 
design, structure and operations of the EU measures prohibiting the importation of seal 
products- (a) constitute unfair economic restrictions; (b) are in in violations of the WTO Agreements; (c) are in violations of TBT Agreement and (d) contradicts and undermines the 
goals and objectives of those measures.  
 32. Namibia respectfully submits that Canada and Norway have made out a case for the relief 
sought in their application.  
 
33. In view of the above, Namibia respectfully requests the Panel to consider the first written 
submission and the oral submission of Namibia favourably. 
 
                                               
21 NAM-2, para 20 
22 NAM-2, para 20 
23 NAM-2, pg 33, para 20.4 
24 NAM-2, pg 33, para 20.4 WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-22 - 
 
  ANNEX C-6 
INTEGRATED EXECUTIVE SUMMARY OF TH E ARGUMENTS OF THE UNITED STATES 
I. GATT 1994: Article XX(a) 
 
1. With respect to considering whether a measure meets paragraph (a) of Article XX of the 
GATT 1994, the proper elements to consider are whether the measure protects public morals and 
whether the measure is "necessary" to do so. This calls for determining whether the measure in 
question has the objective of protecting a value that is a public moral in the respondent's 
community or nation. When considering a respondent's claim that the measure is designed to protect a value that is a public moral, one must consider the concept of "public morals" as defined and applied by the responding Member accordin g to their own systems and scales of values. A 
panel is not to substitute its own judgment as to what a "public moral" is, but rather is to 
determine what a public moral is in the responding Member's system. Nevertheless, while the focus must be on the responding Member's system and scale of values, what Members other than 
the responding Member consider to be public morals can offer confirmation of a panel's 
determination as to what constitutes a public mo ral within the system of  the responding Member. 
 
2.  Next, it is necessary to consider whether the measures are "necessary" to protect public 
morals. To do so, the Appellate Body has set forth a process consisting of a number of possible lines of inquiry – the relative importance of the values furthered by the measure, the contribution 
of the measure to the objective, the restrictive impact of the measure – and the consideration of 
alternative measures. The Appellate Body has stated that "[i]t is on the basis of this ‘weighing and 
balancing' and comparison of measures, taking into account the interests or values at stake, that a panel determines whether a measure is ‘necessary' or, alternatively, whether another, 
WTO-consistent measure is ‘reasonably available'." 
 3. Under Article XX, Members have agreed that the objectives listed justify providing for 
exceptions from the other provisions of the GATT 1994, subject to certain conditions. This means 
that it is not required, nor is it appropriate, to determine whether the trade-restrictiveness of the measure is justified by the importance of the objective. The text does not require a panel to assign some sort of quantitative or qualitative value to the trade-restrictiveness of the measure and the 
importance of the objective, and then compar e those two values; such an inquiry would be 
extraordinarily difficult, if not impossible. Nor is there any support in the text of Article XX for a view that a measure that has been found to be de signed to achieve one of the exceptions set out 
in Article XX can be found to be unnecessary (if a WTO-consistent alternative is not available) 
simply because a panel may find the objective of the measure insufficiently important to justify the measure's trade- restrictiveness.  
 
4. With respect to the contribution of the measure to its objective, it is for the Member, in designing its measure, to select the level at which the objective will be achieved. It is well established that the determination of what is the respondent Member's actual desired level is 
based on the design of the measure and the evidence provided. 
 5. Finally, if presented with an alternative meas ure by Canada or Norway, the inquiry then will 
be whether the alternative measure is WTO-consistent, is "reasonably available," and will achieve 
the EU's objective at the level chosen by the EU . The EU incorrectly states that the alternative 
measure must be "less trade restrictive" than the EU measure. This implies that the alternative 
measure could be WTO-inconsistent, but so long as it is less trade restrictive than the EU measure, 
the EU measure will be deemed unnecessary. The United States disagrees:  in determining "necessity" the comparison is between the GA TT 1994-inconsistent measure and an alternative 
measure that is GATT 1994-consistent.  
 
6. A "less trade restrictive" standard is not supported by the text of Article XX(a), which requires that the measure be "necessary."  The ordinary meaning of the term "necessary," in 
context and in light of the object and purpose of the GATT 1994, does not encompass a "least 
trade restrictive"  test. Rather, the trade-restrictiveness of a measure is one of the factors that may be helpful in evaluating the "necessity" of the measure, as the Appellate Body has recognized. WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-23 - 
 
  According to the Appellate Body, the ordinary mean ing of the term necessary as used in Article XX 
is "located significantly closer to the pole of ‘indispensable' than to the opposite pole of ‘making a contribution to'."  In this regard, the Appellate Bo dy's interpretation of the ordinary meaning of the 
term "necessary" is clearly related to the degree of contribution the measure makes to an 
objective set out in Article XX (a), (b), or (d). Additionally, context provided by the Agreement on 
Technical Barriers to Trade ("TBT Agreement") and the Agreement on the application of Sanitary 
and Phytosanitary Measures  ("SPS Agreement") demonstrates that where Members sought to 
provide an obligation that a measure is required to be no more trade restrictive than required or 
necessary, the WTO Agreement sets out that standard clearly. As the US – Tuna-Dolphin  panel 
noted when comparing the text of TBT Article 2.2 to GATT Article XX, under Article XX the "trade restrictiveness" of the measure as compared to an alternative is not relevant; what must be 
considered is the necessity of relying on a measure inconsistent with the GATT 1994 to achieve an 
objective listed in Article XX. 
 
7. The United States also finds instructive the Appellate Body's discussion in US – Tuna-Dolphin  
of the circumstances in which, when considering a claim under TBT Article 2.2, a panel may not need to consider an alternative measure. The Appellate Body stated that, if a measure is not trade 
restrictive, then it would not be inconsistent with Article 2.2. Article XX of the GATT 1994, 
however, does not operate in this manner. Articl e XX is an affirmative defense. One conducts an 
analysis under Article XX because of a finding of inconsistency with another provision of the GATT 1994. One is not excused from a breach by sh owing lack of trade restrictiveness. Rather, a 
measure qualifies for an exception under Article XX by meeting the conditions of Article XX. In 
other words, a measure found to be GATT 1994-inconsistent is not excepted from that finding under Article XX on the basis that it has no or limited trade effect. Similarly, a GATT 1994-
inconsistent measure otherwise excepted from the obligations of the GATT 1994 does not become 
"unnecessary" simply because it is highly trade restrictive.   
II. TBT Agreement 
 8. With respect to the TBT Agreement, the Un ited States presents its views on:  (1) the 
definition of "technical regulation," and in pa rticular, the meaning and relevance of product 
characteristics in that definition under Annex 1.1; (2) the concept of "less favorable treatment" 
under Article 2.1 and the related approach recently utilized by the Appellate Body regarding "legitimate regulatory distinction"; and (3) the definition of the term "conformity assessment 
procedures" under Annex 1.3 and the implications for the scope of Articles 5.1 and 5.2.  
 9. First, Annex 1.1 of the TBT Agreement defines a "technical regulation" as a "document which 
lays down product characteristics or their relate d processes and production methods ... ."  Stated 
differently, to be a technical regulation, a document must either set out that a product possess or not possess a particular characteristic, or it must prescribe certain processes or production methods related to a product characteristic. In this regard, the United States observes that a 
measure that simply prohibits the sale of a product does not prescribe a product characteristic. For 
example, a measure that prohibits the sale of as bestos does not prescribe any characteristics of 
that product. Such a ban would not operate by allowing asbestos with certain intrinsic 
characteristics to be sold while restricting the sale of asbestos with other intrinsic characteristics; 
that measure would simply ban the sale of asbestos per se .  
 
10. It is also useful to note that Annex 1 relies on the sixth edition of the ISO/IEC Guide 2:  
1991, General Terms and Their Definitions Concerning Standardization and Related Activities ("Guide"). In particular, the Guide notes that:  "Important benefits of standardization  are 
improvement of the suitability of products, proces ses, and services for their intended purposes, 
prevention of barriers to trade and facilitation of technological cooperation."  Similarly, the Guide 
states that:  " Standardization  may have one or more specific aims, to make a product, process or 
service fit for its purpose . Such aims can be, but are not restricted to, variety control , usability, 
compatibility , interchangeability , health, safety , protection of the environment , product protection , 
mutual understanding, economic performance, trade. They can be overlapping."  It is also helpful t o  c o n s i d e r  d e f i n i t i o n  5 . 4  i n  t h e  G u i d e  o f  a  " p r o d u c t  s t a n d a r d " :   " Standard  that specifies 
requirements  to be fulfilled by a product or a group of products, to establish its fitness for 
purpose ."  
 11. These statements in the Guide show that the focus of standards, and by extension technical 
regulations (certain types of standards with which compliance is mandatory), is on ensuring that a WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-24 - 
 
  product is fit for its purpose or aim. However, the purpose or aim of a sales ban is not to ensure 
that a product is fit for its purpose, but to prohibit the sale of the product entirely. The purpose of technical regulation, on the other hand, is to set out product characteristics (or their related 
processes or production methods), which if met, allows the product to be marketed. In other 
words, a technical regulation's aim is not to ban a product but to ensure that the product 
possesses or does not possess a product characteristic that makes it usable, compatible, safe, protective of the environment or health, etc. 
 
12. While the result of a technical regulation may be that a form of a product that possesses (or does not possess) a particular characteristic may not be sold, this result alone is not what makes a measure a technical regulation. Rather, for a measure to constitute a technical regulation, it must 
be a "document which lays down product characteristics or their related processes and production 
methods ...." and compliance with the document must be mandatory. A prohibition on the sale of a 
product that possesses (or does not possess) a particular characteristic  is the mechanism through 
which compliance with the "document which lays down product characteristics...."  is made 
mandatory. However, unlike a per se  ban on the product, a technical regulation sets out product 
characteristics that, if met, do allow the product to be marketed. 
 
13. For example, consider a measure that (1) bans asbestos and (2) requires that any cement sold not contain asbestos. One aspect of the measure bans a product per se , asbestos. Another 
aspect of the measure allows cement to be sold if it does not possess a particular characteristic – 
namely, if the cement does not contain asbestos. In this example, the ban on asbestos per se  is 
not a technical regulation and would not be subject to the TBT Agreement; it is simply a ban on the sale of asbestos. However, the aspect of the measure that sets out that any cement marketed 
must not contain asbestos, is a technical regulation for cement. The same cannot be said for the 
aspect of the measure that simply bans the sale of asbestos, as there are no product characteristics that asbestos could possess or not possess that would allow it to be sold under the 
measure. Thus, to the extent a measure bans the sa le of a product, rather than prescribing that 
the product possess or not possess a certain product characteristic, the measure is not a technical regulation.   
14. Second, with respect to TBT Article 2.1, when considering whether a measure applies less 
favorable treatment to like products, it is necessary to consider the proper scope for the comparison between products. As the Appellate Body stated in US – Clove Cigarettes , a panel is to 
"compare, on the one hand, the treatment accorded under the technical regulation at issue to all 
like products imported from the complaining Member with, on the other hand, that accorded to all like domestic products."  Though the Appellate Body in that dispute was addressing a national 
treatment claim under Article 2.1, the United Stat es believes the scope of comparison is similar 
when considering a most favored nation claim under the same article; that is, the proper scope of comparison is between the treatment accorded to all like products from one Member to all like products "originating in any other country."   
 
15. The United States notes, however, that within the scope of the products being compared,  Article 2.1 does not require Members to accord no less favorable treatment to each and every 
imported product as compared with each and every like domestic product or like product 
originating in any other country. Technical regulations, "by their very nature," establish distinctions between products. Such distinctions between groups of like products do not breach 
Article 2.1 so long as the distinction is based on a legitimate regulatory distinction, and not on 
some impermissible basis, such as the origin of  a product. Moreover, when considering whether a 
distinction drawn between like products is legitimate, a panel may consider the objective behind the distinction being drawn. In making that consideration, a panel should not just consider the 
"central" or overarching objective of the measure. Measures often have multiple objectives. And in 
the case of exceptions to a measure, the objectives of the measure may even be competing with each other. Indeed, it is difficult to conceive of another reason why a measure would make 
exceptions in the first place. It is natural for governments to need to balance competing legitimate 
objectives. Thus, to suggest that an exception to a measure is not based on a legitimate regulatory distinction because it does not contribute – or may even detract – from the "central" 
objective of the measure is incorrect. Rather, the proper question for the panel to consider is 
whether that distinction reflects discrimination. That test can only be satisfied while taking into account all objectives of the measure.   WT/DS400/R/Add.1 • WT/DS401/R/Add.1 
 
- C-25 - 
 
  16. Third, with respect to the claims under Arti cles 5.1 and 5.2 of the TBT Agreement, it is 
useful to recall that those Articles provide obligations with respect to "conformity assessment procedures."  Accordingly, another important thre shold question under the TBT Agreement is what 
is a "conformity assessment procedure." 
 
17. "Conformity assessment procedures" are defined in Annex 1.3 as:  "Any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards 
are fulfilled."  While Canada and Norway allege, and the EU appears to accept, that the 
determination as to whether a product falls within the marine resource management or indigenous communities exceptions are conformity assessmen t procedures, the United States believes the 
Panel should consider whether these exceptions are technical regulations, and thus, whether any 
determination concerning eligibility for these exceptions is subject to Articles 5.1 and 5.2. 
 
18. The United States recalls that when a measure is alleged to be a technical regulation within 
the meaning of the first sentence of Annex 1.1, th at measure must set out "product characteristics 
or their related processes and production methods...."  The meaning of product characteristics was just discussed in our statement. With respect to the rest of the sentence, the words "their" and 
"related" refer to the term "product characteristics," and indicate that the processes and 
production methods addressed by the first sentence of the definition of a technical regulation are 
those that relate to product characteristics. Proc esses or production methods unrelated to product 
characteristics are not covered by the first sentence of the definition of a technical regulation.  
 
19. Therefore, if an exception does not concern a requirement in a technical regulation (and by 
definition those requirements would concern product characteristics or processes or production 
methods related to product characteristics), then a determination as to whether a particular 
product was eligible for the exception would not be the type of determination specified in the definition. That is, it would not involve a determination as to whether relevant requirements in 
technical regulations are fulfilled. If an exception does not depend on or prescribe any 
characteristic of the product or a process or produc tion method related to the characteristic of the 
product, then it would appear that the exceptio n is not a technical regulation. Accordingly, any 
procedure for determining eligibility with the exception would not be a procedure for "a positive 
assurance of conformity with" a technical regulation.  
 20. Therefore, where a determination is required  with respect to whether a product satisfies a 
measure (or an aspect of a measure) that is not a technical regulation, that requirement does not 
come under Article 5.1. Since Article 5.2 applies to situations in which a Member is implementing the provisions of Article 5.1, Article 5.2 also would not apply to measures or aspects of measures 
that are not technical regulations or standards.    
 21. Thus, to the extent that a determination of eligibility for an exception that sets out non-product characteristics is required, that determination is not within the scope of Article 5.1 or 5.2. 
However, a determination procedure may of course still be amenable to challenge under other 
WTO agreements, including Article III:4 of the GATT 1994 as a measure that accords less favorable treatment to like products. 
 
 
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