WT/DS400/9  
WT/DS401/10  
 
31 January 2014  
(14-0537)  Page: 1/4  
  Original: English  
 
 EUROPEAN COMMUNITIES – MEASURES  PROHIBITING THE IMPORTATION 
AND MARKETING OF SEAL PRODUCTS 
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 29 January  2014, from the Delegation of the European 
Union, is being circulated to Members.  
_______________ 
 
 1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  (DSU) and Rule 23 of the Working Procedures for Appellate 
Review , the European Union hereby notifies its decision to appeal to the Appellate Body certain 
issues of law and certain legal interpretations developed by the Panel in European Communities – 
Measures prohibiting the importation and Marketing of Seal Products  (WT/DS400/R, WT/DS401/R) 
(Panel Report). 
1. THE PANEL ERRED BY FINDING THAT THE EU SEAL REGIME IS A TECHNICAL 
REGULATION WITHIN THE MEAN ING OF THE TBT AGREEMENT 
2. The European Union appeals the Panel's conclusion that the EU Seal Regime is a technical 
regulation within the meaning of Annex 1.1 of the TBT Agreement.
1  
3. This conclusion is in error for the following reasons: 1) the Panel wrongly interpreted the 
terms "applicable administrative provisions" and wrongly concluded that the exceptions under the 
EU Seal Regime constitute applicable administrative provisions;2 2) the Panel wrongly established 
the scope of products characteristics under Annex 1:1 of the TBT Agreement, which led it to 
erroneously conclude that the criteria under the exceptions lay down product characteristics3; 
and 3) the Panel failed to make a holistic assessment of the measure at issue4 and, thus, wrongly 
found that the measure as a whole is a "technical regulation" within the meaning of Annex 1:1 of the TBT Agreement.
5  
4. Reversal of the Panel's conclusion that the EU Seal Regime is a technical regulation would 
dispose of Canada's and Norway's claims under the TBT Agreement. Accordingly, the European 
Union requests the Appellate Body to find that th e Panel's findings and conclusions with regards to 
Articles 2.1, 2.2, 5.1.2 and 5.2.1 of the TB T Agreement are moot and of no legal effect. 
                                               
1 See e.g. Panel report, para. 7.111. See also the co nclusion under para. 8.2.a) of both reports.  
2 Panel report, para. 7.108. 
3 Panel report, para. 7.110. 
4 Panel report, para. 7.100, 7.106, footnote 153. 
5 Panel report, paras. 7.111, 7.125. WT/DS400/9 • WT/DS401/10 
 
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  2. THE PANEL ERRED BY FINDING THAT THE IC EXCEPTION BEARS NO "RATIONAL 
RELATIONSHIP" TO THE PRIMARY OBJECTIVE OF THE EU SEAL REGIME 
5. The European Union also appeals the Panel's finding, as part of its analysis under 
Articles 2.1 and 2.2 of the TBT Agreement and under Article XX(a) of the GATT 1994, that "the IC 
exception does not bear a rational relationship to the objective of addressing the moral concerns of 
the public on seal welfare".6  
6. This finding is in error because it is based on an incorrect interpretation of the notion of 
"public morals", according to which a Member invoking that a measure pursues a public morals 
objective would have to show that such measure is supported by a majority of its population.  
7. Furthermore, the European Union submits in the alternative that, in reaching its conclusion 
that the EU public does not support the IC ex ception the Panel failed to make an objective 
assessment of the evidence before it, as required by Article 11 DSU. Specifically, the Panel relied 
upon the following factual evidence: 1) the results of two opinion polls analysed in Canada's Royal 
Commission Report on Sealing 7; and 2) the results of a public consultation conducted by the EU 
Commission as part of the preparation of its proposal to the EU legislators.8 Yet this evidence lends 
no support to the Panel's appealed finding.  
8. In view of these errors, the European Union requests the Appellate Body to reverse this 
finding.  
3. THE PANEL ERRED BY FINDING THAT TH E EU SEAL REGIME IS INCONSISTENT 
WITH ARTICLE 2.1 TBT AGREEMENT BE CAUSE THE IC EXCEPTION IS NOT 
DESIGNED AND APPLIED EVEN-HANDEDLY  
9. The European Union also appeals the Panel's finding that the IC exception "is not designed 
and applied in an even-handed ma nner" and that, consequently, "the IC exception of the EU Seal 
Regime is inconsistent with the European Union's obligations under Article 2.1 of the TBT 
Agreement as the European Union has failed to de monstrate that the detrimental impact caused 
by the IC exception on Canadian seal products stems exclusively from a legitimate distinction".9  
10. This finding is in error because the Panel misinterpreted and misapplied Article 2.1 of the 
TBT Agreement when examining the even-handedne ss in the design and application of the IC 
exception.10 Rather than considering whether the IC exception was designed and applied in a 
reasonable, impartial and harmonious manner, having regard to its objective (i.e., the protection 
of the interest of the Inuit and other indigenous communities traditionally engaged in seal hunting 
for subsistence purposes), the Panel determined that the IC exception was available de facto  
exclusively to Greenland without examining the acti ons (and omissions) of the relevant Canadian 
(and Canadian Inuit) authorities and operators. The Panel also wrongly focused on the alleged 
similarities of Greenland's hunts to the commercial hunts. Those similarities, however, were irrelevant for assessing even-handedness, in view of the Panel's earlier finding that the Inuit hunts 
are conducted primarily for subsistence purposes and can be legitimately distinguished from the 
commercial hunts.
11  
11. Furthermore, the European Union submits in the alternative that this finding was based on 
several material inaccuracies leading to erroneous factual determinations as well as incoherent 
reasoning, contrary to the Panel's duties under Article 11 of the DSU. Specifically, the European 
Union challenges the Panel's finding that "the IC exception is available de facto  exclusively to 
Greenland"12 based on "the text of the IC exception, its legislative history, and the actual 
application of the IC exception".13 The European Union also challenges the Panel's findings that 
                                               
6 See e.g. Panel report, para. 7.275.  
7 See e.g. Panel report, footnote 676.  
8 See e.g. Panel report, footnotes 652 and 676. 
9 See e.g. Panel Report, para. 7.319.  
10 Panel Report, para. 7.317. 
11 Panel Report, paras. 7.288 and 7.289. 
12 Panel Report, paras. 7.314 – 7.317. 
13 Panel Report, para. 7.317. WT/DS400/9 • WT/DS401/10 
 
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  "the degree of the commercial aspect of [Greenland's] hunts is comparable to that of the 
commercial hunts",14 and that "the Inuit hunt [in Greenland] bears the greatest similarities to the 
commercial characteristics of commercial hunts".15 The European Union submits that these errors 
are material. Consequently, the European Union requests the Appellate Body to find that the Panel 
failed to make an objective assessment of the matter, contrary to Article 11 of the DSU, when 
finding that the IC exception was not currently designed and applied in an even-handed manner.16  
12. In view of these fundamental errors, or an y combination thereof, the European Union 
requests the Appellate Body to reverse  the Panel's finding that the distinction made by the IC 
exception between IC and commercial hunts based on the purpose of the hunt "is not designed 
and applied in an even-handed manner" and, thus, that "the IC exception of the EU Seal Regime is inconsistent with the European Union's obligations under Article 2.1 of the TBT Agreement as the 
European Union has failed to demonstrate that th e detrimental impact caused by the IC exception 
on Canadian seal products stems exclusively from a legitimate distinction".
17  
4. THE PANEL ERRED BY FINDING THAT THE IC EXCEPTION DIMINISHES THE 
CONTRIBUTION OF THE EU SEAL REGIME  TO ITS PUBLIC MORALS OBJECTIVE 
13. The European Union appeals the Panel's finding, as part of its analysis under Article 2.2 of 
the TBT Agreement and Article XX(a) of the GATT 1994, that the IC exception "diminishes" the 
contribution of the EU Seal Regime to its public morals objective.18  
14. This finding is in error because it is premised on the Panel's earlier erroneous finding that 
the IC exception bears no "rational relationship" to the public morals objective pursued by the EU Seal Regime. Accordingly, the European Union requests the Appellate Body to reverse this finding. 
5. THE PANEL MADE AN ERRONEOUS INTERP RETATION OF ARTICLES I:1 AND III:4 
OF THE GATT 1994 
15. The European Union appeals the Panel's finding that it "do[es] not consider that the legal 
standard with respect to the non-discrimination ob ligation under Article 2. 1 of the TBT Agreement 
'equally applies' to claims under Articles I:1 and III:4 of the GATT 1994"
19. The European Union 
submits that the Panel's finding constitutes an erro neous interpretation of Articles I.1 and III:4 of 
the GATT 1994. Therefore, the European Union re quests the Appellate Body to reverse that 
finding. 
6. THE PANEL'S FINDING THAT THE EU SEAL REGIME IS INCONSISTENT WITH 
ARTICLE I:1 OF THE GATT IS IN ERROR BECAUSE THE PANEL FAILED TO CONSIDER 
WHETHER THE IC EXCEPTION INVOLV ES A LEGITIMATE REGULATORY 
DISTINCTION 
16. The European Union also appeals the Panel's application of its erroneous interpretation of 
Article I:1 of the GATT 1994 in reaching its finding that the EU Seal Regime is inconsistent with 
Article I:1 of the GATT 1994.20 Accordingly the European Union requests the Appellate Body to 
reverse that finding.  
                                               
14 Panel Report, para. 7.313. 
15 See e.g. Panel Report, para. 7.317. 
16 See e.g. Panel Report, paras. 7.317 and 7.319. 
17 Panel Report, para. 7.319. See also the conclusion under paragraph 8.2 (b) with regard to the 
complaint by Canada (DS 400). 
18 See e.g. Panel report, para. 7.460. See also Panel report, paras. 7.447-7.448, 7.451-7.452, 7.466 
and 7.638.  
19 See e.g. Panel Report, para. 7.586.  
20 See e.g. Panel Report, para. 7.600. See also the conclusion under para. 8.3 a) with regard to both 
complaints (DS 400 and DS 401).  WT/DS400/9 • WT/DS401/10 
 
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  7. SUBSIDIARILY, THE PANEL ERRED BY FI NDING THAT THE IC EXCEPTION IS NOT 
JUSTIFIED UNDER ARTICLE XX(A) GATT BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF THE CHAPEAU  
17. Were the Appellate Body to uphold the Panel's finding that the IC exception is inconsistent 
with Article I:1 of the GATT 1994, the European Union appeals the Panel's finding that the IC 
exception is not justified under Article XX(a) of the GATT 1994 because it fails to meet the requirements of the chapeau.
21  
18. The Panel's analysis of the even-handedness of the IC exception under Article 2.1 of the TBT 
Agreement contained several legal errors.22 Should the Appellate Body reverse the Panel's finding 
that the IC exception "is not designed and applied in an even-handed manner" and, thus, that "the 
IC exception of the EU Seal Regime is inconsistent with the European Union's obligations under 
Article 2.1 of the TBT Agreement as the Europe an Union has failed to demonstrate that the 
detrimental impact caused by the IC exception on Canadian seal products stems exclusively from a 
legitimate distinction",23 the European Union requests the Appellate Body to also reverse  the 
Panel's finding under the chapeau of Article XX( a) of the GATT 1994. The European Union further 
requests the Appellate Body to complete the analysis  under the chapeau of Article XX(a) of the 
GATT 1994 and find, on the basis of the considerations made  before, that the IC exception is not 
"applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination 
between countries where the same conditions prevail, or a disguised restriction on international trade" and, accordingly, that the IC exception meets the requirements under Article XX(a) of the 
GATT 1994, including its chapeau. 
8. SUBSIDIARILY, THE PANEL ERRED BY FINDING THAT THE EUROPEAN UNION HAD 
FAILED TO ESTABLISH A PRIMA FACIE CASE FOR ITS CLAIM THAT THE IC EXCEPTION IS JUSTIFIED UNDER ARTICLE XX(B) GATT 
19. Finally, in the event that the Appellate Body were to 1) uphold the Panel's finding that the 
EU Seal Regime is inconsistent with Article I:1 of the GATT 1994; and 2) reverse the Panel's finding that the EU Seal Regime falls within the scope of GATT Article XX(a), the European Union 
appeals the Panel's finding that "the European Union has failed to establish a prima facie  case for 
its claim under Article XX(b) [of the GATT]".
24 The European Union submits that in reaching this 
conclusion the Panel failed to fulfil its duty to conduct an objective assessment of the matter as required by Article 11 of the DSU. Accordingly, the European Union requests the Appellate Body: 
1) to reverse the Panel's finding that the European Union failed to establish a prima facie  case 
under GATT Article XX(b); and  2) to complete the analysis under GATT Article XX(b) and find that the EU Seal Regime is justified under that provision. 
 
 
__________ 
 
 
                                               
21 See Panel Report, para. 7.650. See also the conc lusion under para. 8.3 d) with regard to both 
complaints (DS 400 and DS 401).  
22 See para. 9 above. 
23 Panel Report, para. 7.319.  
24 See e.g. Panel report, para. 7.640 and para. 8.3 e)  of the conclusions and recommendations in boith 
WT/DS400 R and WTDS401/R.