WT/DS400/AB/R  
WT/DS401/AB/R  
 
22 May 2014  
(14-3051)  Page: 1/208  
  Original: English  
 
 EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE 
IMPORTATION AND MARKETING OF SEAL PRODUCTS 
AB-2014-1 
AB-2014-2 
Reports of the Appellate Body 
Note by the Secretariat: 
 
The Appellate Body is issuing these Reports in th e form of a single document constituting two 
separate Appellate Body Reports: WT/DS400/AB/R; and WT/DS401/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to both Reports. The page header throughout the document bears the two document symbols WT/DS400/AB/R and 
WT/DS401/AB/R, with the following exceptions: section 6 on pages CAN-191 to CAN-192, which 
bears the document symbol for and contains the Appellate Body's conclusions and recommendation in the Appellate Body Report WT/DS400/AB/R; and section 6 on pages NOR-193 
to NOR-194, which bears the document symbol for and contains the Appellate Body's conclusions 
and recommendation in the Appellate Body Report WT/DS401/AB/R.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Table of Contents 
 
1   INTROD UCTION .............................................................................................. 13  
2   ARGUMENTS OF THE PARTICIPAN TS AND THIRD PARTICIPANTS ................... 17  
2.1   Claims of error by  Canada – A ppellant ............................................................ 17  
2.1.1   Article 2.1 of the TBT Agreement ........................................................................ 17 
2.1.2   Article 2.2 of the TBT Agreement ........................................................................ 20 
2.1.2.1   The Panel's analysis of the contribution of the EU Seal Regime to its objective ........... 20 
2.1.2.2   The Panel's analysis  of the altern ative me asure ..................................................... 23 
2.1.3   Article XX of the GATT 1994 ............................................................................... 25 
2.1.3.1   Scope of  Article XX(a) ....................................................................................... 25 
2.1.3.2   The Panel's an alysis of "n ecessity" ...................................................................... 27 
2.1.3.3   The Panel's analysis under the chapeau of Article XX .............................................. 28 
2.2   Claims of error by  Norway – Appellant ........................................................... 29  
2.2.1    Article 2.2 of the TBT Agreement ........................................................................ 29 
2.2.1.1   The Panel's identification of  the objective of the EU Seal Regime .............................. 29 
2.2.1.2   The Panel's analysis of the contribution of the EU Seal Regime to its objective ........... 33 
2.2.1.3   The Panel's analysis  of the altern ative me asure ..................................................... 37 
2.2.1.4   Request for comp letion of the analysis ................................................................. 39 
2.2.2   Article XX of the GATT 1994 ............................................................................... 40 
2.2.2.1   Aspects of the measure to  be justified under Article XX(a) ...................................... 40 
2.2.2.2   The Panel's an alysis of "n ecessity" ...................................................................... 42 
2.2.2.3   The Panel's analysis under the chapeau of Article XX .............................................. 43 
2.3   Arguments of the European Union – Appellee ................................................. 44  
2.3.1   Article 2.1 of the TBT Agreement ........................................................................ 44 
2.3.2   Article 2.2 of the TBT Agreement ........................................................................ 47 
2.3.2.1   The Panel's identification of  the objective of the EU Seal Regime .............................. 47 
2.3.2.2   The Panel's analysis of the contribution of the EU Seal Regime to its objective ........... 48 
2.3.2.3   The Panel's analysis  of the altern ative me asure ..................................................... 52 
2.3.3   Article XX of the GATT 1994 ............................................................................... 54 
2.3.3.1   Aspects of the measure to  be justified under Article XX(a) ...................................... 54 
2.3.3.2   Scope of  Article XX(a) ....................................................................................... 55 
2.3.3.3   The Panel's an alysis of "n ecessity" ...................................................................... 56 
2.3.3.4   The Panel's analysis under the chapeau of Article XX .............................................. 57 
2.4   Claims of error by the Eu ropean Union – Ot her appellant ............................... 58  
2.4.1   Annex 1.1 to the TBT Agreement ........................................................................ 58 
2.4.2   Article 2.1 of the TBT Agreement ........................................................................ 60 
2.4.2.1   Claims under Article 11 of the DSU ...................................................................... 62 
2.4.3   Article I:1 and Article III:4 of the GATT 1994 ........................................................ 66 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.4.4   Article XX of the GATT 1994 ............................................................................... 68 
2.4.4.1   The Panel's analysis under the chapeau of Article XX .............................................. 68 
2.4.4.2   The Panel's anal ysis under Ar ticle XX(b) ............................................................... 68 
2.5   Arguments of Canada – A ppellee .................................................................... 69  
2.5.1   Annex 1.1 to the TBT Agreement ........................................................................ 69 
2.5.2   Article 2.1 of the TBT Agreement ........................................................................ 71 
2.5.3   Article I:1 and Article III:4 of the GATT 1994 ........................................................ 75 
2.5.4   Article XX of the GATT 1994 ............................................................................... 77 
2.5.4.1   The Panel's analysis under the chapeau of Article XX .............................................. 77 
2.5.4.2   The Panel's anal ysis under Ar ticle XX(b) ............................................................... 77 
2.5.5   Non-violation nullification or impairment in the sense of Article XXIII:1(b) of 
the GATT 1994 ................................................................................................. 78 
2.6   Arguments of Norway – A ppellee.................................................................... 78  
2.6.1   Annex 1.1 to the TBT Agreement ........................................................................ 78 
2.6.2   Article I:1 and Article III:4 of the GATT 1994 ........................................................ 80 
2.6.3   Article XX of the GATT 1994 ............................................................................... 82 
2.6.3.1   The Panel's analysis under the chapeau of Article XX .............................................. 82 
2.6.3.2   The Panel's anal ysis under Ar ticle XX(b) ............................................................... 85 
2.6.4   Non-violation nullification or impairment in the sense of Article XXIII:1(b) of 
the GATT 1994 ................................................................................................. 86 
2.7   Arguments of the third participants ................................................................ 87  
2.7.1   Ecuador ........................................................................................................... 87 
2.7.2   Iceland ............................................................................................................ 87 
2.7.3   Japan .............................................................................................................. 88 
2.7.4   Mexico ............................................................................................................ 91 
2.7.5   Namibia .......................................................................................................... 92 
2.7.6   United States ................................................................................................... 92 
3   ISSUES RAISED IN THESE APPEALS ................................................................ 95  
4   BACKGROUND AND OVERVIEW OF THE MEASURE AT ISSUE ........................... 96  
5   ANALYSIS OF TH E APPELLATE BODY............................................................. 100  
5.1   Legal characterization of the EU Seal Regime – Annex 1.1 to the 
TBT Agreem ent ............................................................................................. 100  
5.1.1   Intr oduction ................................................................................................... 100  
5.1.2   Interpretation of Annex 1.1 to the TBT Agreement ............................................... 102  
5.1.3   Whether the EU Seal Regime constitutes a technical regulation .............................. 104  
5.1.3.1   Overview of the EU Seal Regime ....................................................................... 104  
5.1.3.2   Preliminary remarks ........................................................................................ 105  
5.1.3.3   Whether the EU Seal Regime lays down product characteristics including the 
applicable administrative provisions ................................................................... 106  
5.1.3.4   Completing the legal analysis ........................................................................... 115  
5.1.4   Overall conclusion ........................................................................................... 117  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.2   Article I:1 and Arti cle III:4 of the GATT 1994 ............................................... 117  
5.2.1   The Panel's findings ........................................................................................ 118  
5.2.2   The legal standards of the obligatio ns under Article I:1 and Article III:4 of the 
GATT 1994 .................................................................................................... 118  
5.2.3   Article I:1 of the GATT 1994 ............................................................................. 120  
5.2.4   Article III:4 of the GA TT 1994 .......................................................................... 122  
5.3   Article XX of the GATT 1994 .......................................................................... 129  
5.3.1   The objective of the EU Seal Regime .................................................................. 130  
5.3.1.1   The Panel's findings ........................................................................................ 130  
5.3.1.2   Identification of the object ive pursued by the EU  Seal Regime ............................... 132  
5.3.2   Article XX(a)  of the GA TT 1994 ......................................................................... 139  
5.3.2.1   The Panel's findings on Article XX(a) .................................................................. 141  
5.3.2.2   The Panel's analysis of the aspects of the EU Seal Regime to be justified under 
Article XX(a) .................................................................................................. 144  
5.3.2.3   The Panel's analysis of the protecti on of public morals under Article XX(a) .............. 146  
5.3.2.4   The Panel's analysis of the contribution of the EU Seal Regime to the objective ........ 150  
5.3.2.5   The Panel's analysis of the reasonab le availability of the alternative measure .......... 166  
5.3.2.6   Co nclusion ..................................................................................................... 174  
5.3.3   The chapeau of Ar ticle XX of th e GATT 1994  ....................................................... 175  
5.3.3.1   Interpretation of the chap eau of Article XX of  the GATT 1994 ................................ 175  
5.3.3.2   Canada's and Norway's claims on appeal regarding the Panel's reasoning 
under the chapeau of Articl e XX of the GATT 1994 ............................................... 179  
5.3.3.3   Whether the EU Seal Regime m eets the requirements of the chapeau of 
Article XX of the GATT 1994 ............................................................................. 181  
6   FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT 
WT/DS400/AB/R  ................................................................................. CAN-191  
6   FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT 
WT/DS401/AB/R .................................................................................. NOR-193  
ANNEX 1  ..................................................................................................................... 195 
ANNEX 2  ..................................................................................................................... 197 
ANNEX 3  ..................................................................................................................... 202 
ANNEX 4  ..................................................................................................................... 206 
ANNEX 5  ..................................................................................................................... 208 
 
 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  CASES CITED IN THESE REPORTS 
Short Title Full Case Title and Citation 
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, p. 515 
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting th e Export of Bovine Hides and 
Import of Finished Leather , WT/DS155/R and Corr.1, adopted 16 February 
2001, DSR 2001:V, p. 1779 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327 
Brazil – Internal Taxes  Working Party Report, Brazilian Internal Taxes , GATT/CP.3/42 (First Report), 
adopted 30 June 1949, BISD II, p. 181; GATT/CP.5/37 (Second Report), 
adopted 13 December 1950, BISD II, p. 186 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body 
Report WT/DS332/AB/R, DSR 2007:V, p. 1649 
Canada – Aircraft 
(Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, 
adopted 4 August 2000, DSR 2000:IX, p. 4299 
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, 
DSR 2000:VI, p. 2985 
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 449 
Canada – Provincial Liquor 
Boards (EEC)  GATT Panel Report, Canada – Import, Distributi on and Sale of Alcoholic 
Drinks by Canadian Prov incial Marketing Agencies , L/6304, adopted 22 March 
1988, BISD 35S, p. 37 
Canada – Renewable Energy / 
Canada – Feed-in Tariff Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Me asures Relating to the Feed-in Tariff 
Program , WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 23 
October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473) 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 12 
January 2009, DSR 2009:I, p. 3 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publ ications and Audiovisual Entertainment 
Products , WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, p. 3 
China – Publications and 
Audiovisual Products Panel Report, China –  Measures Affecting Trading Rights and Di stribution 
Services for Certain Publications an d Audiovisual Entertainment Products , 
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535 
Dominican Republic – Import 
and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 
19 May 2005, DSR 2005:XV, p. 7367 
EC – Asbestos Appellate Body Report, European Communities – Meas ures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, p. 3243 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Short Title Full Case Title and Citation 
EC – Asbestos Panel Report, European Communities – Measur es Affecting Asbestos and 
Asbestos-Containing Products , WT/DS135/R and Add.1, adopted 5 April 2001, 
as modified by Appellate Body Report WT/DS135/AB /R, DSR 2001:VIII, 
p. 3305 
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, p. 591 
EC – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas (EC – Bananas III) , WT/DS27/R/ECU (Ecuador)  / 
WT/DS27/R/GTM, WT/DS27/R/HND (Guatemala and Honduras)  / 
WT/DS27/R/MEX (Mexico)  / WT/DS27/R/USA (US), adopted 25 September 
1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695 to DSR 1997:III, p. 1085 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from In dia – Recourse to Article 21.5 of the 
DSU by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
p. 965 
EC – Export Subsidies on Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT /DS283/AB/R, adopted 19 May 2005, 
DSR 2005:XIII, p. 6365 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or  Steel Fasteners from China , WT/DS397/AB/R, 
adopted 28 July 2011, DSR 2 011:VII, p. 3995 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, p. 2031 
EC – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 
p. 3359 
EC – Seal Products Panel Reports, European Communities – Measures Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R / WT/DS401/R / and Add.1, 
circulated to WTO Members 25 November 2013 
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting 
of Tariff Preferences to  Developing Countries , WT/DS246/AB/R, adopted 20 
April 2004, DSR 2004:III, p. 925 
EC – Tariff Preferences Panel Report, European Communities – Conditio ns for the Granting of Tariff 
Preferences to Developing Countries , WT/DS246/R, adopted 20 April 2004, as 
modified by Appellate Body Report  WT/DS246/AB/R, DS R 2004:III, p. 1009 
EC – Trademarks and 
Geographical Indications (US) Panel Report,  European Communities – Prot ection of Trademarks and 
Geographical Indications for Agricultur al Products and Foodstuffs, Complaint 
by the United States , WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII, 
p. 3499 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, p. 2613 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011, DSR 2011:I, p. 7 
India – Patents (US) Appellate Body Report, India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Short Title Full Case Title and Citation 
Japan – Agricultural Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277 
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391 
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguar d Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, p. 3 
Korea – Various Measures on 
Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/ AB/R, adopted 10 January 
2001, DSR 2001:I, p. 5 
Thailand – Cigarettes 
(Philippines) Appellate Body Report, Thailand – Customs and Fiscal  Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, 
p. 2203 
US – Anti-Dumping and 
Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, 
adopted 25 March 2011, DSR 2011:V, p. 2869 
US – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 24 April 2012 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 
2012 
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as 
modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R 
US – FSC 
(Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 
p. 55 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services , WT/DS285/R, adopted 20 April 2005, as 
modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, p. 5797 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 
p. 3 
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional 
Gasoline , WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body 
Report WT/DS2/AB/R, DSR 1996:I, p. 29 
US – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Short Title Full Case Title and Citation 
US – Malt Beverages  GATT Panel Report, United States – Measures A ffecting Alcoholic and Malt 
Beverages , DS23/R, adopted 19 June 1992, BISD 39S, p. 206 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, p. 589 
US – Section 337 Tariff Act  GATT Panel Report, United States Section 337 of the Tariff Act of 1930 , 
L/6439, adopted 7 November 1989, BISD 36S, p. 345 
US – Shrimp Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, p. 2755 
US – Shrimp 
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, 
and Corr.1, DSR 2006:XI, p. 4865 
US – Superfund  GATT Panel Report, United States – Taxes on Pe troleum and Certain Imported 
Substances , L/6175, adopted 17 June 1987, BISD 34S, p. 136 
US – Tobacco  GATT Panel Report, United States – Measures Affecting the Importation, 
Internal Sale and Use of Tobacco , DS44/R, adopted 4 October 1994, BISD 
41S, p. 131 
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R, adopted 
13 June 2012 
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R, adopted 
13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton 
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DS R 2008:III, p. 809 
US – Wheat Gluten Appellate Body Report, United States – Definitive  Safeguard Measures on 
Imports of Wheat Gluten fro m the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, p. 717 
 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  PANEL EXHIBITS CITED IN THESE REPORTS 
Short Title Full Case Title and Citation 
CDA-12 Council Directive No. 83/129 of 28 March 1983 concerning the importation into Member 
States of skins of certain seal pu ps and products de rived therefrom, Official Journal of the 
European Communities , L Series, No. 91 (9 April 1983), pp. 30-31 
CDA-29 J.C. Talling and I.R. Inglis, " Improvements to trapping standards" , DG ENV (2009) (a joint 
research report by Food and En vironment Research Agency (UK) , Federation of Associations 
for Hunting and Conservation of the EU, Ju lius Kühn-Institut (Germany), and Swedish 
Environmental Protection Agency) 
CDA-34 P-Y. Daoust  and C. Caraguel , "The Canadian harp seal hunt: observations on the 
effectiveness of procedures to avoi d poor animal welfare outcomes", Animal Welfare (2012), 
Vol. 21, pp. 445-455  
CDA-47 EFSA, "Opinion of the Scientific Panel on  Animal and Welfare on a request from the 
Commission related to welfare aspects of the main systems of stunning and killing the main 
commercial species of animals" , The EFSA Journal  (2004), No. 45, pp. 1-29 
CDA-98 R. Munro, "Report on the Deer Industry in  Great Britain, 2002", prepared for DEFRA and the 
Food Standards Agency, available at: <http://www.dnr.illinois.gov/hunting/deer/Documents/IllinoisDeerHarvestReportFinal.2011.2
012.pdf > 
CDA-102 Nunavut Economy Fact Sheet 
CDA-122 Deer Commission for Scotland/Scottish Natural Heritage webpage, Best Practice Guide, 
"Reaction & follow-up", available at: <http://www.bestpracticeguide s.org.uk/culling/follow-up > (accessed 19 April 2013) 
CDA-123 DEFRA, Current and Future Deer Management Options , Report on behalf of DEFRA European 
Wildlife Division, December 2003, pp. 14-15, available at: 
<http://www.naturalengland.org.uk/Images/managementoptions_tcm6-4637.pdf > 
CDA-124 The British Deer Society webpage, "Learn about deer", available at: 
<http://www.bds.org.uk/learn_about_deer.html > (accessed 24 April 2013) 
JE-1 Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 
16 September 2009 on trade in seal products, Official Journal of the European Union , 
L Series, No. 286 (31 October 2009) 
JE-2 Commission 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, Official Journal of the European Union , L Series, No. 216 
(17 August 2010), pp. 1-10 
JE-4 Committee on the Internal Market and Consumer Protection, Report on the proposal for a 
regulation of the European Parliament and of the Council concerning trade in seals products  
(5 March 2009), A-0118/2009 
JE-8 European Commission webpage, "Implementatio n of Humane Trapping Standard in the EU  
– 1991-2005", available at: <http://ec.europa.eu/environment/biodiversity/animal_welfare/hts/index_en.htm > (accessed 
14 October 2012) 
JE-9 European Commission, Proposal for a regulation  of the European Parliament and the Council 
concerning trade in seal products (23 July 2008), COM(2008) 469 final 
JE-16 European Commission, "Commission Staff Wo rking Document accompanying document to the 
Proposal for a regulation of the European Par liament and of the council concerning trade in 
seal products – Impact Assessment on the pote ntial impact of a ban of products derived from 
seal species" (23 July 2008), COM(2008) 469 final 
JE-17 European Commission, Staff Working Paper, "Impact Assessment: accompanying the 
document, Communication from the Commission to the European Parliament, the Council and 
the European Economic and So cial Committee on the European Union Strategy for the 
Protection and Welfare of Animals 2012-2015" (19 January 2012), COM(2012) 6 final  
JE-20 COWI, Assessment of the potential impact of a ba n of products derived from seal species  
(April 2008) 
JE-21 COWI, Study on implementing measures  for trade in seal products , Final Report 
(January 2010) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Short Title Full Case Title and Citation 
JE-22 European Food Safety Authority, "Scienti fic Opinion of the Panel on Animal Health and 
Welfare on a request from the Commission on the Animal Welfare aspects of the killing and skinning of seals", The EFSA Journal  (2007), No. 610, pp. 1-122 
JE-24 North Atlantic Marine Mammal Commission, Report of the NAMMCO Expert Group Meeting on 
Best Practices in the Hunting and Killing of Seals  (February 2009) 
JE-26 Government of Greenland, Ministry of Fisheries, Hunting and Agriculture, Management and 
Utilization of Seals in Greenland  (revised April 2012) 
JE-27 Canadian Department of Fisheries and Oceans, Canadian Commercial Seal Harvest Overview 
2011, Statistical and economic analysis series (October 2012)  
JE-30 Nunavut Department of Environment, Fisheries and Sealing Division, Report on the Impacts 
of the European Union Seal Ban, (EC) No. 1007/2009, in Nunavut  (2012) 
JE-31 Norwegian Scientific Committee for Food Safety (VKM), Panel on Animal Health and Welfare, 
Scientific Opinion on animal welfare aspects of the killing and skinning in the Norwegian seal 
hunt (October 2007) 
EU-48 Report of the Royal Commission, Seals and Sealing in Canada  (1986), Vol. I, Chapter 11, 
"Public Opinion on Sealing" 
EU-49 Public opinion survey by Orb for Respect for Animals, 16 December 2008 (United Kingdom) 
EU-50 Public opinion survey by TNS Infratest for IFAW, February 2009 (Germany) 
EU-51 Public opinion survey by TNO NIPP, July 2006 (The Netherlands) 
EU-52 Public opinion survey by Ipsos-MORI for IFAW, 11 October 2007 (Portugal and Slovenia) 
EU-53 Public opinion survey by Dedicated Research for IFAW, May 2006 (Belgium) 
EU-54 Public opinion survey by IPSOS for IFAW, 18 October 2007 (France) 
EU-55 Public opinion survey by TNS Infratest for IFAW, August 2007 (Austria) 
EU-56 Public opinion survey by IPSOS-Mori for IFAW, January 2008 (Sweden) 
EU-57 Public opinion survey by TNS Aisa for IFAW, February 2008 (Czech Republic) 
EU-58 A summary of the results of various pu blic opinion surveys compiled by IFAW  
EU-59 Public opinion survey by IPSO-Mori for IFAW and HSI, June 2011 (Belgium, France, Germany, 
United Kingdom, Italy, Lithuania, Netherla nds, Poland, Romania, Spain and Sweden)  
EU-145 "European Commission representative visits Iqaluit on good-will trip", Nunatsiaq Online , 
23 April 2013  
 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  ABBREVIATIONS USED IN THESE REPORTS 
Abbreviation Description 
AGRI Committee on Agriculture and Rural Development of the European Parliament 
Basic Regulation Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 
16 September 2009 on trade in seal products, Official Journal of the 
European Union , L Series, No. 286 (31 October 2009) (Panel Exhibit JE-1) 
Canada Panel Report 
(DS400) Panel Report, European Communities – Measures Prohibiting the Importation and 
Marketing of Seal Products  (WT/DS400/R) 
Canadian Seal Harvest 
Overview Canadian Department of Fisheries and Oceans, Canadian Commercial Seal 
Harvest Overview 2011 , Statistical and economic analysis series (October 2012) 
(Panel Exhibit JE-27) 
Commission 2008 Impact 
Assessment European Commission, "Commission St aff Working Document accompanying 
document to the Proposal for a regulation  of the European Parliament and of the 
council concerning trade in seal products – Impact Assessment on the potential impact of a ban of products derived from seal species" (23 July 2008), COM(2008) 469 final (Panel Exhibit JE-16) 
Commission Proposal European Commission, Proposal for a regu lation of the European Parliament and 
the Council concerning trade in seal products (23 July 2008), COM(2008) 469 
final (Panel Exhibit JE-9) 
Complainants Canada and Norway 
COWI Danish-based international consulting group 
COWI 2008 Report COWI, Assessment of the potential impact of a ban of products derived from seal 
species  (April 2008) (Panel Exhibit JE-20) 
COWI 2010 Report COWI, Study on implementing measures  for trade in seal products , Final Report 
(January 2010) (Panel Exhibit JE-21) 
CSA poll Opinion poll conducted by the Canadian Sealers As sociation (Research 
Dimensions, 1985) (results printed in Royal Commission Report, pp. 151-152) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures  Governing the Settlement of Disputes 
EC Seal Pups Directive Council Directive No. 83/129 of 28 March 1983 concerning the importation into 
Member States of skins of certain seal  pups and products derived therefrom, 
Official Journal of the European Communities , L Series, No. 91 (9 April 1983), 
pp. 30-31 (Panel Exhibit CDA-12) 
EFSA European Food Safety Authority 
EFSA Scientific Opinion European Food Safety Authority, "Scien tific Opinion of the Panel on Animal 
Health and Welfare on a request from the Commission on the Animal Welfare 
aspects of the killing an d skinning of seals", The EFSA Journal  (2007), No. 610, 
pp. 1-122 (Panel Exhibit JE-22)  
ENVI Committee on the Environment, Public Health and Food Safety of the European 
Parliament 
EPA United States Environmental Protection Agency 
EU Seal Regime The Basic Regulation and the Implementing Regulation combined together 
GATS General Agreement on Trade in Services 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Greenland 2012 Seal 
Management Report Government of Greenland, Ministry of Fisheries, Hunting and Agriculture, 
Management and Utilization of Seals in Greenland  (revised April 2012) (Panel 
Exhibit JE-26) 
IC Inuit or other indigenous communities 
IC exception An exception under the EU Seal Regime for seal products obtained from seals 
hunted by Inuit or other indigenous communities  
IC hunts Hunts undertaken by Inuit or other indigenous communities  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Abbreviation Description 
Implementing Regulation Commission 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 Co uncil on trade in seal products, Official Journal 
of the European Union , L Series, No. 216 (17 August 2010), pp. 1-10 
(Panel Exhibit JE-2) 
ISO/IEC Guide International Organization for St andardization/Internatio nal Electrotechnical 
Commission, Guide 2:1991 – General terms and their definitions concerning 
standardization and related activities , 6th edn 
MFN Most favoured nation 
MRM Marine resource management 
MRM exception An exception under the EU Seal Regime for seal products obtained from seals 
hunted for purposes of mari ne resource management 
MRM hunts Hunts conducted for marine resource management purposes 
Norway Panel Report 
(DS401) Panel Report, European Communities – Measures Prohibiting the Importation and 
Marketing of Seal Products  (WT/DS401/R) 
Nunavut 2012 Report Nunavut Department of En vironment, Fisheries and Sealing Division, Report on 
the Impacts of the European Union Se al Ban, (EC) No. 1007/2009, in Nunavut  
(2012) (Panel Exhibit JE-30) 
Panel Reports Panel Reports, European Communities – Measures Prohibiting the Importation 
and Marketing of Seal Products  (WT/DS400/R / WT/DS401/R) 
Parliament Report Committee on the Inte rnal Market and Consumer Protection, Report on the 
proposal for a regulation of the Euro pean Parliament and of the Council 
concerning trade in seals products  (5 March 2009), A-0118/2009 (Panel Exhibit 
JE-4) 
PPMs Processes and production methods 
RC poll Opinion poll conducted by the Cana dian Royal Commission (Canadian Gallup Poll 
Limited, 1986a, 1986b) (results printed in Royal Commission Report, pp. 150-151) 
Royal Commission Report Report of the Royal Commission, Seals and Sealing in Canada  (1986), Vol. I, 
Chapter 11, "Public Opinion on Sealing" (Panel Exhibit EU-48) 
SCM Agreement Agreement on Subsid ies and Countervailing Measures 
SPS Agreement Agreement on the Application of Sa nitary and Phytosanitary Measures 
TBT Agreement Agreement on Technical Barriers to Trade 
Travellers exception An exception under the EU Se al Regime for seal produc ts brought by travellers 
into the European Union in limited circumstances 
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010 
WTO World Trade Organization 
WTO Agreement Marrakesh Agreement Esta blishing the World Trade Organization 
 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  WORLD TRADE ORGANIZATION  
APPELLATE BODY 
  
European Communities – Measures 
Prohibiting the Importation and Marketing of Seal Products (DS400 / DS401) 
 
Canada 
Appellant/Appellee  
Norway 
Appellant/Appellee  
European Union
1 
Other Appellant/Appellee 
 
Argentina, Third Participant 
China, Third Participant 
Colombia, Third Participant 
Ecuador, Third Participant 
Iceland, Third Participant  
Japan, Third Participant 
Mexico, Third Participant  
Namibia, Third Participant2 
Russian Federation, Third Participant  
United States, Third Participant  AB-2014-1 
AB-2014-2  
 
Appellate Body Division:   Graham, Presiding Member 
Chang, Member 
Zhang, Member  
  
1  INTRODUCTION 
1.1.  Canada, Norway, and the European Union each appeals certain issues of law and legal 
interpretations developed in the Panel Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products
3 (Panel Reports).4 The Panel was established5 to 
consider complaints by Canada6 and Norway7 (the complainants) with respect to a European Union 
measure dealing with seal products.8 
                                               
1 These disputes began before the Treaty of Lisbon entered into force in December 2009, which led to 
the replacement, for WTO purposes, of the "European Communities" with the "European Union". For this 
reason, the case title in these disputes is EC – Seal Products , rather than EU – Seal Products . Apart from the 
case title, the Panel referred throughout its Reports to the responding party in these disputes as the European Union or the EU. We follow this  practice in these Reports. 
2 In DS401 only. 
3 WT/DS400/R, 25 November 2013 (Canada Panel Report (DS400)); WT/DS401/R, 25 November 2013 
(Norway Panel Report (DS401)). 
4 The Panel issued its findings in th e form of a single document contai ning two separate reports, with a 
common cover page, table of contents , and sections 1 through 7 (including the Panel's findings), and with 
separate conclusions and recommendation s in respect of the dispute initiate d by Canada and in respect of the 
dispute initiated by Norway.  
5 At its meeting held on 25 March 2011, the Dispute Settlement Body (DSB) established a panel 
pursuant to the request of Canada in  document WT/DS400/4, in accordance with Article 6 of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes (DSU). At its meeting on 21 April 2011, the 
DSB established a panel pursuant to the request of Norway  in WT/DS401/5, in accordance with Article 6 of the 
DSU, and agreed, as provided for in Article 9 of the DS U in respect of multiple complainants, that the panel 
established to examine the complaint by Canada would also examine the co mplaint by Norway. (Panel Reports, 
para. 1.6) 
6 Request for the Establishment of  a Panel by Canada, WT/DS400/4. 
7 Request for the Establishment of  a Panel by Norway, WT/DS401/5. 
8 These disputes concern products either processed or unprocessed, deriving or obtained from seals, 
including meat, oil, blubber, organs, raw fur skins and ta nned fur skins, as well as articles (such as clothing 
and accessories, and omega-3 capsules) made from fur skins and oil. (P anel Reports, para. 2.6 (referring to 
Article 2(2) of the Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 
16 September 2009 on trade in seal products, Official Journal of the European Union , L Series, No. 286 
(31 October 2009); Canada's first writ ten submission to the Panel, paras.  61-70; and Norway's first written 
submission to the Panel, paras. 86-102)) WT/DS400/AB/R • WT/DS401/AB/R 
 
- 14 - 
 
  1.2.  The measure at issue in these disputes, as identified by the Panel9, consists of the following 
legal instruments: 
a. Regulation (EC) No. 1007/2009 of the Euro pean Parliament and of the Council of 
16 September 2009 on trade in seal products10 (Basic Regulation); and 
b. Commission 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 products11 (Implementing Regulation). 
1.3.  The Panel considered it appropriate to treat the Basic Regulation and the Implementing 
Regulation as a single measure, which it referred to as the "EU Seal Regime".12 We do the same in 
these Reports. 
1.4.  The EU Seal Regime prohibits the placing of seal products on the EU market unless they 
qualify under certain exceptions, consisting of the following: (i) seal products obtained from seals 
hunted by Inuit or other indigenous communities (IC exception); (ii) seal products obtained from seals hunted for purposes of marine resource management (MRM exception); and (iii) seal 
products brought by travellers into the European Union in limited circumstances (Travellers 
exception).
13 The EU Seal Regime lays down specific requirements in respect of each of these 
exceptions.14 
1.5.  Canada and Norway claimed before the Pa nel that the EU Seal Regime violates various 
obligations under the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the Agreement on Technical Barriers to Trade (TBT Agreement). The complainants alleged that the IC and MRM exceptions of the EU Seal Regime violate the non-discrimination obligations under 
Articles I:1 and III:4 of the GATT 1994 and, accord ing to Canada, also under Article 2.1 of the 
TBT Agreement. Both complainants contended, in essence, that the IC and MRM exceptions accord 
seal products from Canada and Norway less favourable treatment than that accorded to like seal 
products of domestic origin, mainly from Sweden and Finland, and those of other foreign origin, 
particularly from Greenland. The complainants also  asserted that the EU Seal Regime creates an 
unnecessary obstacle to trade, inconsistent with Article 2.2 of the TBT Agreement, because it is 
more trade restrictive than necessary to fulfil a legitimate objective. They further argued that 
certain procedural aspects of the measure violate the requirements for conformity assessment under Article 5 of the TBT Agreement. The compla inants additionally claimed that the IC, MRM, 
and Travellers exceptions impose quantitative restrictions on trade, in a manner inconsistent with 
Article XI:1 of the GATT 1994.
15 Norway also argued that, if the EU Seal Regime was found to 
violate Article XI:1 of the GATT 1994, then it wo uld also violate Article 4.2 of the Agreement on 
Agriculture. Finally, Canada and Norway both co ntended that the application of the EU Seal 
Regime nullifies or impairs benefits accruing to them under the covered agreements within the 
meaning of Article XXIII:1(b) of the GATT 1994.16 
1.6.  The Panel Reports were circulated to Members of the World Trade Organization (WTO) on 
25 November 2013. In its Reports, the Panel found it appropriate first to address the claims under 
the TBT Agreement, followed by those made under the GATT 1994.17 
                                               
9 Panel Reports, para. 7.7. 
10 Official Journal of the European Union , L Series, No. 286 (31 October 2009) (Panel Exhibit JE-1). 
11 Official Journal of the European Union , L Series, No. 216 (17 August 2010) (Panel Exhibit JE-2). 
12 Panel Reports, para. 7.8; see also para. 7.26 (ref erring to the parties' re sponses to Panel question 
No. 2). 
13 Panel Reports, para. 7.1. Apart from the reference to "conditions" in paragraphs 7.1 and 7.2, the 
Panel referred throughout its Reports to the IC, MRM, and Travellers "exceptions". (See e.g. ibid., para. 7.35) 
14 Panel Reports, para. 7.1. 
15 Panel Reports, para. 7.2. 
16 Panel Reports, para. 7.2. 
17 Panel Reports, para. 7.69. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  1.7.  With respect to Canada's and Norway's claims under the TBT Agreement, the Panel concluded 
that: 
a. the EU Seal Regime is a "technical regulation" within the meaning of Annex 1.1 to the 
TBT Agreement; 
b. with respect to Canada's claim under Article 2.1, the IC exception and MRM exception 
under the EU Seal Regime are inconsistent with Article 2.1 because the detrimental impact caused by these exceptions does not stem exclusively from legitimate regulatory 
distinctions and, consequently, the exceptions accord imported seal products treatment 
less favourable than that accorded to like  domestic and other foreign seal products; 
c. the EU Seal Regime is not inconsistent with Article 2.2 because it fulfils the objective of 
addressing EU public moral concerns regarding seal welfare to a certain extent, and no 
alternative measure has been demonstrated to make an equivalent or greater 
contribution to the fulfilment of th e objective of the EU Seal Regime; 
d. the European Union acted inconsistently with its obligations under Article 5.1.2 because 
the conformity assessment procedures under the EU Seal Regime were incapable of 
enabling trade in qualifying products to take place as from the date of entry into force of the EU Seal Regime; and 
e. Canada and Norway did not demonstrate that the European Union had acted 
inconsistently with its obligations under Article 5.2.1.
18 
1.8.  With respect to Canada's and Norway's claims under the GATT 1994, the Panel concluded 
that: 
a. the IC exception under the EU Seal Regime is inconsistent with Article I:1 because an 
advantage granted by the European Union to seal products originating in Greenland is not accorded immediately and unconditionally to  like seal products originating in Canada 
and Norway; 
b. the MRM exception under the EU Seal Regime is inconsistent with Article III:4 because it 
accords imported seal products treatment less favourable than that accorded to like 
domestic seal products; 
c. each of the IC, MRM, and Travellers exce ptions under the EU Seal Regime is not 
inconsistent with Article XI:1; 
d. the IC exception and the MRM exception under  t h e  E U  S e a l  R e g i m e  a r e  n o t  j u s t i f i e d  
under Article XX(a) because they fail to meet the requirements under the chapeau of 
Article XX; and 
e. the IC exception and the MRM exception under  t h e  E U  S e a l  R e g i m e  a r e  n o t  j u s t i f i e d  
under Article XX(b) because the European Union failed to make a prima facie case for its 
claim.
19 
1.9.  The Panel rejected Norway's claim under Article 4.2 of the Agreement on Agriculture20, and 
refrained from examining Canada's and Norway's non-violation claim under Article XXIII:1 of the 
GATT 1994.21 The Panel found that, pursuant to Article 3.8 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU), to the extent that the European Union 
had acted inconsistently with Article 2.1 (in the case of Canada) and Article 5.1.2 of the 
                                               
18 Canada Panel Report (DS400), para. 8.2; Norway Panel Report (DS401), para. 8.2. 
19 Canada Panel Report (DS400), para. 8.3; Norway Panel Report (DS401), para. 8.3. 
20 Norway Panel Report (DS401), para. 8.4. 
21 Canada Panel Report (DS400), para. 8.4; Norway Panel Report (DS401), para. 8.5. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 16 - 
 
  TBT Agreement, and Articles I:1 and III:4 of the GATT 1994, it nullified or impaired benefits 
accruing to Canada and Norway under these agreements.22 
1.10.  On 24 January 2014, Canada and Norway each notified the Dispute Settlement Body (DSB), 
pursuant to Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered 
in the Panel Reports and certain legal interpretations developed by the Panel, and each filed a 
Notice of Appeal23 and an appellant's submission pursuant to Rule 20 and Rule 21, respectively, of 
the Working Procedures for Appellate Review24 (Working Procedures). On 29 January 2014, the 
European Union notified the DSB, pursuant to Arti cles 16.4 and 17 of the DSU, of its intention to 
appeal certain issues of law covered in the Panel Reports and certain legal interpretations developed by the Panel and filed a Notice of Other Appeal
25 and an other appellant's submission 
pursuant to Rule 23 of the Working Procedur es. On 11 February 2014, the European Union, 
Canada, and Norway each filed an appellee's submission.26 On 14 February 2014, Iceland, Japan, 
Mexico, and the United States each filed a third participant's submission.27 On the same day, 
Namibia notified its intention to appear at the oral hearing as a third participant28 (in DS401 only), 
and Argentina, China, and Ecuador (on 17 February 2014), Colombia (on 19 February 2014), and 
Russia (on 21 February 2014) each notified its intention to appear at the oral hearing as a third participant.
29 
1.11.  On 29 January 2014, the Appellate Body re ceived a joint communication from Canada and 
Norway requesting that the oral hearing in these appellate proceedings be opened to public observation. Both complainants proposed that public observation be permitted via simultaneous closed-circuit television broadcasting with the option for the transmission to be turned off should a 
third participant indicate that it wished to keep its oral statement confidential. They further 
requested the adoption of additional procedures to ensure the security and orderly conduct of the proceedings. On the same date, the Appellate Body received a communication from the 
European Union, joining Canada and Norway's requ est for public observation of the hearing, and 
indicating that it had no objections to the proposed additional security arrangements. 
1.12.  On 30 January 2014, the Appellate Body Divi sion in these appellate proceedings invited the 
third parties to comment in writing on the participants' request for an open oral hearing. Japan, 
Mexico, and the United States submitted their responses on 3 February 2014. In its communication, Japan indicated that it had no objection to the request for public observation or the proposed logistical arrangements. Mexico also did not object, but nevertheless stated that its 
position in these appeals was without prejudice to its systemic views on the public observation of 
oral hearings. The United States articulated its support for the request to open the hearing to the public, and suggested that the Division accommodate the participants' logistical requests to the 
extent possible. 
1.13.  On 5 February 2014, the Division issued a Procedural Ruling authorizing the request of 
Canada, Norway, and the European Union to open the hearing to public observation and adopting 
additional procedures for the conduct of the hearing. The Procedural Ruling is attached as Annex 4 
to these Reports. 
1.14.  The oral hearing in these appeals was originally scheduled for 3-5 March 2014. On 
30 January 2014, the Appellate Body received letters from Canada, Norway, and the European 
Union, requesting the postponement of the dates for the oral hearing due to logistical difficulties 
faced by the parties during the week of 3 March 2014. The participants requested that the oral hearing be postponed to no earlier than th e week of 17 March 2014. On 31 January 2014, the 
Division invited the third parties to comment in wr iting on the request for postponement of the oral 
hearing. Japan, Mexico, and the United States submitted their comments on 4 February 2014, indicating that they had no objection to the partic ipants' request. On 5 February 2014, the Division 
                                               
22 Canada Panel Report, para. 8.5 (DS400); Norway Panel Report (DS401), para. 8.6. 
23 WT/DS400/8 (Canada), WT/DS401/9 (Norway) (atta ched as Annexes 1 and 2 to these Reports, 
respectively). 
24 WT/AB/WP/6, 16 August 2010.  
25 WT/DS400/9, WT/DS401/10 (attached as Annex 3 to these Reports). 
26 Pursuant to Rules 22 and 23(4) of the Working Procedures.  
27 Pursuant to Rule 24(1) of the Working Procedures. 
28 Pursuant to Rule 24(2) of the Working Procedures. 
29 Pursuant to Rule 24(4) of the Working Procedures. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  issued a Procedural Ruling rescheduling the oral hearing for 17 to 19 March 2014. The Procedural 
Ruling is attached as Annex 5 to these Reports. 
1.15.  On 19 February30, 6 March31, and 17 March 201432, the Appellate Body received unsolicited 
amicus curiae  briefs. The participants and third particip ants were given an opportunity to express 
their views on the admissibility and substance of thes e briefs at the oral hearing, if they so wished. 
We note that the brief of 17 March 2014 was received on the first day of the oral hearing. In the light of its late filing, and mindful of the requ irement to ensure that participants and third 
participants are given an adequate opportunity fully to consider any written submission filed with 
the Appellate Body, the Division deemed this br ief inadmissible. The Division did not find it 
necessary to rely on the other two amicus curiae  briefs in rendering its decision. 
1.16.  The oral hearing in these appeals was held from 17 to 19 March 2014. Public observation 
took place via simultaneous closed-circuit television broadcast to a separate viewing room. The 
participants and Ecuador, Japan, Mexico, Namibia, and the United States made opening statements. The participants and third participan ts responded to questions posed by the Members 
of the Division hearing the appeals. 
1.17.  On 24 March 2014, the Chair of the Appellate  Body informed the Chair of the DSB that, due 
to the requests made by the participants to postpone the date for the oral hearing and the 
subsequent rescheduling of the oral hearing fr om 3-5 March 2014 to 17-19 March 2014, and also 
due to the size of these appeals and the other appeal by the European Union, including the 
number and complexity of the issues raised by the participants, it was expected that the Appellate Body Reports in these appeals would be circulated to WTO Members no later than Tuesday, 
20 May 2014.
33 Subsequently, by letter dated 16 May 2014, the Chair of the Appellate Body 
informed the Chair of the DSB that due to the time  required for translation and the caseload of the 
Appellate Body, the Reports in these appeals woul d be circulated on Thursday, 22 May 2014 in all 
official languages.34 
2  ARGUMENTS OF THE PARTICIP ANTS AND THIRD PARTICIPANTS 
2.1  Claims of error by Canada – Appellant 
2.1.1  Article 2.1 of the TBT Agreement 
2.1.  Canada submits that the Panel erred by formulating and applying the wrong legal test under 
Article 2.1 of the TBT Agreement. Canada further challenges the Panel's intermediate conclusion, in the context of its analysis under Article 2.1, that the regulatory distinction between commercial 
hunts and hunts undertaken by Inuit or other indigenous communities (IC hunts) is justified. 
Canada requests the Appellate Body to complete the legal analysis under Article 2.1 by applying 
the correct "even-handedness" test; and to uphold the Panel's ultimate finding that the 
detrimental impact of the EU Seal Regime does not stem exclusively from a legitimate regulatory 
distinction under Article 2.1, but on the modified  grounds that the distinction between commercial 
and IC hunts is arbitrary and unjustifiable. 
2.2.  Canada submits that the Panel committed a legal error by articulating the wrong test to 
determine whether the detrimental impact of the EU Seal Regime on the competitive opportunities of Canadian seal products stems exclusively from a legitimate regulatory distinction. Specifically, Canada takes issue with the Panel's framing of the test as consisting of three distinct elements. 
According to Canada, this is contrary to the Appellate Body's framing of the test, in three previous 
disputes under the TBT Agreement, as "a determin ation of whether the regulatory distinction that 
                                               
30 From a group of animal welfare organizations. These organizations include Anima, Animal Rights 
Action Network, Asociación Nacional para la Defensa de los Animales, Bont  Voor Dieren, Compassion in World 
Farming, Djurens Rätt, Eurogroup for Animals, Fondatio n Brigitte Bardot, Fondation Franz Weber, Four Paws, 
GAIA, Humane Society of the United States/Humane So ciety International, Intern ational Fund for Animal 
Welfare, Lega Anti Vivisezione, Prij atelji živontinja, Respect for Animals,  Royal Society for the Prevention of 
Cruelty to Animals, Svoboda zví řat, and World Society for the Protection of Animals. 
31 From the Internatio nal Fur Federation. 
32 From Professor Robert Howse, Joanna Langille, and Professor Katie Sykes.  
33 This letter was circulated as document WT/DS400/10, WT/DS401/11. 
34 This letter was circulated as document WT/DS400/11, WT/DS401/12. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 18 - 
 
  resulted in the detrimental impact was desi gned or applied in an even-handed manner."35 Canada 
submits that the Panel erred in treating the first two elements of its test – i.e. whether the regulatory distinction was rationally connected to the objective and, if not, whether there was another cause or rationale that could justify the di stinction – as distinct from the third element – 
i.e. whether the regulatory distinction was designed and applied in an even-handed manner.
36 In 
support of its argument, Canada points to the Appellate Body's findings in US – Clove Cigarettes  
and US – COOL . Canada argues that, in both of these cases, "the absence of [a] rationale 
explaining or justifying the regulatory distinction played a central role in the Appellate Body finding 
that there had been a lack of even-handedness in  how the distinction was designed and applied."37 
Hence, in Canada's view, "the presence or absence of a rationale that explains or justifies the regulatory distinction is a critical aspect in determining whether a regulatory distinction is 
even-handed."
38 
2.3.  Canada further submits that the Panel committed a number of legal errors in finding that the 
regulatory distinction between non-conforming Canadian seal products and Greenlandic Inuit seal 
products was justifiable. First, Canada asserts th at the Panel erred in finding that the distinction 
was justifiable despite evidence demonstrating that the rationale for the distinction "goes against" the objective of the EU Seal Regime.
39 Canada highlights that, in its assessment of the EU Seal 
Regime's contribution to its objective, the Panel found that the IC exception actually "diminishes" 
the overall contribution of the EU Seal Regime to that objective.40 Canada submits that a 
regulatory distinction that undermines the objective of a measure cannot be justified, as it would constitute arbitrary or unjustifiable discrimination. Canada argues that, in Brazil – Retreaded 
Tyres , the finding that the rationale for the di scrimination undermined the objective of the 
measure at issue was determinative for the finding of arbitrary and unjustifiable discrimination.
41 
Given the similarities between the test under Arti cle 2.1 of the TBT Agreement and the chapeau of 
Article XX of the GATT 1994, Canada argues that th e fact that the rationale for the discrimination 
completely undermines the objective of the measure must play a determinative role under both provisions. Canada further clarifies its view that the Panel committed an error in attempting to 
distinguish the Appellate Body's reasoning in Brazil – Retreaded Tyres .
42 Canada notes that, 
according to the Panel, the Appellate Body's conclusion of arbitrary and unjustifiable discrimination in that case was based on a finding that the rationale for the exception was not sufficient to justify the exception in the face of the rational disconne ction to the objective of the measure. Canada 
submits that this is not correct. In Canada's view, the Appellate Body's conclusion was based 
solely on its determination that there was no rational connection between the exception and the objective of the ban, and did not involve a balancing of the objective of the exception with the 
rational disconnection. 
2.4.  Second, Canada alleges that the Panel committed a legal error "by relying on international 
instruments extraneous to the case" to justify the distinction between IC and commercial hunts.
43 
Canada notes that the international agreements ci ted by the European Union before the Panel do 
not require the European Union to protect the interests of Inuit or other indigenous communities by discriminating against the products of non-indigenous peoples. Canada further argues that "the merits of according preferential treatment to indigenous peoples must still be balanced with how 
such treatment accords with the objective of the measure."
44 Canada recalls the Appellate Body's 
observation in Brazil – Retreaded Tyres  that, even if a rationale is not capricious or random, it can 
still be found to be arbitrary or unjustifiable because it bears no relationship to the objective of the 
measure or goes against it.45 Canada submits that the existence of international agreements that 
                                               
35 Canada's appellant's submission, para. 51 (referring to Appellate Body Reports, US – Clove 
Cigarettes , paras. 182 and 215; US – Tuna II (Mexico) , paras. 216 and 225; and US – COOL , paras. 271, 272, 
and 341).  
36 Canada's appellant's submission, para. 52 (referring to Panel Reports, para. 7.259).  
37 Canada's appellant's submission, para. 77.  
38 Canada's appellant's submission, para. 77.  
39 Canada's appellant's submission, para . 78 (quoting Appellate Body Report, Brazil – Retreaded Tyres , 
para. 228). 
40 Canada's appellant's submission, para. 78 (referring to Panel Reports, para. 7.448). 
41 Canada's appellant's submission, paras. 80-82 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 227).  
42 Canada's opening statemen t at the oral hearing. 
43 Canada's appellant's submissi on, heading B.a), at p. 27.  
44 Canada's appellant's submission, para. 89. 
45 Canada's appellant's submission, para. 89 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 232).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  recognize, in general terms, the interests of indigenous people cannot be a determining factor in 
assessing whether the rationale for the regulatory distinction is justified. 
2.5.  The third legal error that Canada identifies  is the Panel's failure to examine whether giving 
effect to the distinction will actually fulfil its rationale. Canada points to the Appellate Body's 
discussion of the rationales for the distinction between clove and menthol cigarettes that the 
United States put forward in the US – Clove Cigarettes  case. According to Canada, the Appellate 
Body in that case dismissed the rationales on the basis that "it was not clear" that the alleged 
consequences of not making the distinction – namely, the impact on the US health care system 
associated with banning menthol and the risk of the development of a black market for menthol cigarettes – would materialize.
46 Canada argues that, in the present disputes, it is equally "not 
clear" that the IC exception will serve to protect Inuit or other indigenous communities' (IC) 
interests. Canada notes that Inuit communities were opposed to the EU Seal Regime as a whole 
despite the IC exception because they believe that it will have a negative impact on the market for all seal products.
47 Canada submits that the Panel's failure to consider the lack of fulfilment of the 
regulatory distinction's purpose constitutes legal error.48 
2.6.  Canada further alleges that the Panel erred by focusing on the wrong comparison in its 
assessment of whether the regulatory distinction is even-handed. According to Canada, the Panel 
erroneously applied the "even-handedness" test by  analysing different Inuit hunts rather than the 
regulatory distinction between commercial and IC hunts, which it had found to be causing the detrimental impact. Canada notes that, in assessing the legitimacy of a regulatory distinction for the purposes of Article 2.1 of the TBT Agreemen t, the Appellate Body has focused only on the 
distinction that accounts for the detrimental impact on imported products as compared to domestic 
products.
49 Canada submits that, by not focusing on th e proper regulatory distinction, the Panel 
failed to follow the guidance provided by the Appellate Body in previous TBT disputes. Canada 
argues that, had the Panel directed its attent ion towards the regulatory distinction between 
commercial and IC hunts, it would have had the correct basis to conclude that this regulatory distinction was designed and applied in an arbitrary manner because the IC hunt in Greenland 
exhibits the characteristics of a commercial hunt. As Canada sees it, the fact that the application of 
the IC exception results in differentiated benefits amongst the Inuit is not germane to the question of whether the regulatory distinction between commercial and IC hunts is even-handed. As a 
result, Canada argues, the Panel failed to determine whether the regulatory distinction between 
commercial and IC hunts is even-handed.  
2.7.  Canada further submits that the Panel erred by failing to examine the arbitrary aspects of the 
regulatory distinction between commercial and IC hunts.
50 In Canada's view, the Panel should 
have taken into account its finding that the Inuit hunt in Greenland has "characteristics that are 
closely related to that of commercial hunts" in examining whether the regulatory distinction between commercial and IC hunts was designed and applied in an arbitrary or unjustifiable 
manner.
51 For Canada, the Panel's findings regarding the similarities between the Inuit hunt in 
Greenland and commercial hunts are relevant to the application of the test under Article 2.1, not because they show that the IC exception was not designed or applied in an even-handed manner, 
but because they demonstrate that the distinctio n between Inuit and commercial hunts is "illusory 
in practice", and is thus designed in an arbitrary manner.
52 According to Canada, it is, therefore, 
the distinction between commercial and IC hunts, ra ther than the IC exception as such, that is 
                                               
46 Canada's appellant's submission, para . 90 (quoting Appellate Body Report, US – Clove Cigarettes , 
para. 225).  
47 Canada's appellant's submission, para. 91 (refer ring to Nunavut Department of Environment, 
Fisheries and Sealing Division, Report on the Impacts of the European Union Seal Ban, (EC) No. 1007/2009, in 
Nunavut  (2012) (Panel Exhibit JE-30) (Nunavut 2012 Report), p. 3; Government of Greenland, Ministry of 
Fisheries, Hunting and Agriculture, Management and Utilization of Seals in Greenland  (revised April 2012) 
(Panel Exhibit JE-26) (Greenland 2012 Seal Management Report), pp. 31-36; and Canada's first written submission to the Panel, paras. 526-532). 
48 Canada's appellant's submission, para. 92.  
49 Canada's appellant's submission, para. 94 (referring to Appellate Body Report, US – Tuna II (Mexico) , 
para. 286).  
50 Canada's appellant's submission, para. 99. 
51 Canada's appellant's submission, para. 99 (quoting Panel Reports, para. 7.313). 
52 Canada's appellant's submission, para. 102 (referring to Canada's second written submission to the 
Panel, paras. 280-284). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  designed in an arbitrary manner.53 Canada submits that the Panel's analysis of the 
even-handedness of the regulatory distinction between commercial and IC hunts was misdirected 
and constitutes an error of law. 
2.8.  Canada further submits that the factual findings made by the Panel in its analysis of the 
even-handedness of the EU Seal Regime with resp ect to different IC hunts support the conclusion 
that the Greenlandic seal hunt is not primarily driven by subsistence considerations.54 Therefore, 
Canada argues, the application of the regulatory distinction between Canada's commercial hunt 
and the Greenlandic hunt is arbitrary, even if the distinction between commercial hunts and Inuit 
hunts, generally, may not be. 
2.9.  Canada further argues that the Panel acted inconsistently with its duties under Article 11 of 
the DSU in failing to assess Canada's evidence demonstrating that the commercial hunts in Canada 
possess characteristics that are similar to the characteristics of subsistence hunts. According to 
Canada, this evidence was "highly material" to Canada's claims pertaining to the legitimacy of the regulatory distinction between commercial and IC hunts.
55 Canada asserts that, in its assessment 
of commercial hunts, the Panel selectively highlighted certain characteristics that are not similar to 
those of IC hunts, and did not respond to Canada's claims regarding the long-standing tradition of seal hunting on the east coast of Canada, the generation of income for small seal-hunting 
communities from the seal hunt, as well as the use of seal by-products in those communities.
56 
Canada submits that, even if examining this evidence would not have changed the Panel's ultimate finding on the uniqueness of IC hunts, the Pane l had a duty under Article 11 of the DSU to 
consider this evidence and explain why this information did not affect its finding. 
2.10.  Canada, therefore, requests the Appellate Body to complete the legal analysis under 
Article 2.1 by applying the correct "even-handedness" test; and to uphold the Panel's ultimate finding that the detrimental impact of the EU Seal Regime does not stem exclusively from a 
legitimate regulatory distinction under Article 2.1 of the TBT Agreement, but on the modified 
grounds that the distinction between commercial and IC hunts is arbitrary and unjustifiable.
57 
2.1.2  Article 2.2 of the TBT Agreement 
2.11.  Canada claims that the Panel erred in finding that the EU Seal Regime is more trade 
restrictive than necessary within the meaning of Article 2.2 of the TBT Agreement. Canada submits 
that the Panel erred in its analysis of the degree of contribution that the EU Seal Regime makes to 
the identified objective, in failing to assess the risk non-fulfilment would create and to conduct a 
"relational" analysis, and in its analysis of whether the alternative measure makes at least an 
equivalent or greater contribution to the objective. Canada requests that the Appellate Body reverse the Panel's finding and complete the legal analysis and find that the EU Seal Regime is 
inconsistent with Article 2.2. 
2.1.2.1  The Panel's analysis of the contributi on of the EU Seal Regime to its objective 
2.12.  Canada argues that the Appellate Body has stressed the importance of "clear and precise" 
panel findings in considering the three elem ents of the test under Article 2.2 of the 
TBT Agreement.
58 Without clear and precise findings regarding the degree of contribution of the 
measure to the objective, Canada argues, "a panel cannot complete the relational analysis or the comparison of the challenged measure with an alternative measure as it will not have a sufficiently 
accurate benchmark degree of contribution for comparison."
59 
                                               
53 Canada's appellant's submission, para. 102 (referring to Canada's second written submission to the 
Panel, paras. 280-284).  
54 Canada's opening statemen t at the oral hearing. 
55 Canada's appellant's submission, para. 111. 
56 Canada's appellant's submission, paras. 110 and 111 (r eferring to Canada's first written submission to 
the Panel, paras. 25-31).  
57 Canada's appellant's submission, para. 112. 
58 Canada's appellant's submission, para. 158 (quoting Appellate Body Reports, US – COOL , para. 479). 
59 Canada's appellant's submission, para. 158. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.13.  Canada claims that the Panel erred in its "contribution" analysis in several respects. Canada 
submits that the Panel erred in its analysis of the contribution of the EU Seal Regime to the first aspect of the identified objective, namely, prev enting the EU public from being exposed to or 
purchasing products derived from seals killed inhumanely. Canada argues that the Panel's 
consideration of the prohibitive part of the measure is "immaterial" because its permissive aspect 
allows unlimited amounts of products from IC hunts and hunts conducted for marine resource management purposes (MRM hunts).
60 Because the Panel found that the EU public is exposed to 
and may be purchasing seal products derived fr om inhumanely killed seals under the EU Seal 
Regime, Canada states that the Panel "should have found that the EU Seal Regime, as a whole, fails to contribute to the first aspect of the objective because the EU public may still purchase seal products derived from seals killed inhumanely".
61 
2.14.  Moreover, Canada argues that, even if the Panel correctly found that the ban contributes to 
the first aspect of the objective, it erred "by failin g to make an overall conclusion that the EU Seal 
Regime as a whole makes a net positive contribution to preventing the EU public from being 
exposed to or purchasing seal products from inhumanely killed seals".62 Canada maintains that the 
degree of contribution is a key factor in assessing the necessity of a measure under Article 2.2. In Canada's view, the Panel's failure to articulate a "clear or precise" finding of the extent of a 
positive or negative contribution to the first aspect of the objective of the EU Seal Regime and to 
provide an overall conclusion on the degree of contribution to that objective as a whole constitutes legal error.
63 Canada adds that, if the Panel had proper ly articulated the extent of the degree of 
contribution of the prohibitive and permissive aspects to the first aspect of the objective, there 
were factual findings in other sections of the Panel Reports "that [led] to the conclusion that 
products allowed access under the IC exception in particular, include a much higher risk of being derived from inhumanely killed seals".
64 Canada maintains that, based on the Panel's findings, 
"there is an increased likelihood of seal products being derived from inhumanely killed seals" in 
Greenlandic versus Canadian hunts, and "a high likelihood of an increase in supply of seal products from Greenland in the absence of seal products from Canada and Norway".
65 In Canada's view, not 
only are EU citizens being exposed to and po ssibly purchasing seal products derived from 
inhumanely killed seals under the EU Seal Regime, but the extent to which this occurs is higher under the EU Seal Regime and increases the negati ve contribution of the exceptions to the first 
aspect of the objective. If the Panel had applied the "degree of contribution" test correctly to the 
facts, Canada argues, it would have found that "the EU Seal Regime as a whole fails completely to 
make a contribution to the first aspect of the objective."
66 
2.15.  Canada submits that the Panel erred in its analysis of the contribution of the EU Seal 
Regime to the second aspect of the identified objective, namely, reducing the incidence of the 
inhumane killing of seals. Canada argues that the Panel sought to determine whether the measure contributed to a "proxy objective" of reducing demand for seal products in the EU and globally 
without assessing whether this then contributed to a reduction in the incidence of the inhumane 
killing of seals.
67 Canada states that, in failing to assess this second step, the Panel failed to 
demonstrate that there was "a genuine relation ship of ends and means between the objective 
pursued and the measure at issue".68 Canada moreover states that this finding was made on the 
basis of its examination of trade data, despite finding that "the extent of the connection between 
the ban aspect of the measure and the reduction in the number of seals killed is not clearly 
discernible".69  
                                               
60 Canada's appellant's submission, para. 161. 
61 Canada's appellant's submission, para. 162. 
62 Canada's appellant's submission, para. 163. 
63 Canada's appellant's submission, para. 168. 
64 Canada's appellant's submission, para. 169. 
65 Canada's appellant's submission, para. 174. 
66 Canada's appellant's submission, para. 175. 
67 Canada's appellant's submission, para. 177. 
68 Canada's appellant's submission, para. 178 (quoting Appellate Body Report, Brazil – Retreaded Tyres , 
para. 145). 
69 Canada's appellant's submission, para. 184 (quoting Panel Reports, para. 7.458). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.16.  In Canada's view, the Panel erred because it "failed to provide a clear and precise 
articulation of an actual contribution and the extent  of the contribution or the capability of making 
a contribution to the proxy objective".70 Canada adds that the Panel then "failed to undertake an 
examination of whether a reduction in demand for seal products in the EU or globally would 
consequently result in a reduction in the incidence of inhumane killing of seals".71 Canada argues 
that findings made by the Panel in other parts of its Reports would not support such a showing since "the incidence of inhumane killing under the exceptions would be greater despite the 
possibility of fewer overall seals being killed."
72 Canada further alleges that the Panel compounded 
its error by referring to the "'incidence' of i nhumane killing" without clarifying whether it was 
referring to the "proportion of seals being killed inhumanely or a total number of seals killed inhumanely".
73 Canada also contends that the Panel acted contrary to Article 11 of the DSU by 
failing to refer to any evidence that supports its finding that, by reducing global demand for seal 
products resulting from commercia l hunts, fewer seals will be killed in an inhumane way.  
2.17.  Canada argues that the Panel erred because its findings with respect to the contribution that 
the EU Seal Regime makes to the identified objective "are insufficiently specific or detailed to 
provide an accurate assessment of the 'degree' of contribution and a benchmark for comparison with the alternative measure".
74 Relying on the Appellate Body reports in US – COOL , Canada 
contends that a panel needs to present "clear and pr ecise" findings that enab le identification of the 
degree of contribution made to the objective.75 In Canada's view, however, the Panel failed to 
articulate what degree of contribution the EU Seal Regime as a whole makes to the identified objective "beyond vague references to 'some' contribution, 'a contribution' and 'contributes to a 
certain extent'".
76 Moreover, Canada considers that the Panel's finding that one part of the EU Seal 
Regime is capable of making and does make some contribution to the objective, while finding that 
the contribution is diminished and further negati vely affected by other parts of the measure, 
provides an insufficient basis on which to identify  the overall degree to which the EU Seal Regime 
makes a contribution to the objective. Canada argues that, without a finding of the overall degree of contribution of the measure to the objective, "it is not possible to compare the degree of 
contribution of the EU Seal Regime with that of the alternative measure."
77 
2.18.  Canada further explains that its argument is not that imports from Greenland will replace 
imports from Canada, but rather that imports from Greenland can and do have access to the EU market despite the fact, as found by the Panel, that these products may be derived from seals 
killed inhumanely
78 Similarly, with respect to reducing the incidence of inhumanely killed seals, 
Canada notes that its contention is not that imports from Greenland will replace imports from Canada, but rather that they could, because there is no limit on the number of imports under the 
IC exception that can be placed on the EU market. Thus, Canada maintains, a reduction in demand 
for seal products in the European Union would not necessarily result in a decrease in the incidence of inhumanely killed seals since imports from Greenland are derived from hunting practices that 
have been recognized as creating poor animal welfare outcomes. 
2.19.  Finally, Canada claims that the Panel erred in two respects in its application of the legal 
standard under Article 2.2. First, the Panel failed properly to assess the risks non-fulfilment would create. According to Canada, although the Panel determined that the level of protection actually 
achieved by the measure is not as high as the European Union had claimed, the Panel then failed 
"to continue its analysis to assess the 'nature of the risks at issue' and the 'consequences of non-fulfilment' of the objective under the EU Seal Regime".
79 Second, Canada considers that the 
Panel compounded this error by failing to undertake a "relational" analysis between the risks 
non-fulfilment would create under the EU Seal Regime, the trade-restrictiveness of the EU Seal Regime, and the contribution of the EU Seal Regi me to the identified objective. Had the Panel 
completed this analysis, Canada asserts, the Panel would have concluded that "a very 
                                               
70 Canada's appellant's submission, para. 186. 
71 Canada's appellant's submission, para. 187. 
72 Canada's appellant's submission, para. 189 (referring to, inter alia , Panel Reports, paras. 7.164, 
7.216, 7.220, 7.250, 7.268, 7.269, 7.310, 7.314, and 7.315). 
73 Canada's appellant's submission, para. 194. 
74 Canada's appellant's submission, para. 209. 
75 Canada's appellant's submission, para. 213 (quoting Appellate Body Reports, US – COOL , para. 479). 
76 Canada's appellant's submission, para. 215. 
77 Canada's appellant's submission, para. 215. 
78 Canada's opening statemen t at the oral hearing. 
79 Canada's appellant's submission, para. 309. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  trade-restrictive measure that does not make a significant contribution to the objective and has 
relatively low consequences of nonfulfillment of the objective is not 'provisionally' necessary pending confirmation by comparison with a less trade-restrictive alternative".
80 
2.1.2.2  The Panel's analysis of the alternative measure 
2.20.  Canada claims that the Panel erred in several respects in its assessment of the alternative 
measure. Canada argues that the Panel erred by  comparing the contribution of the alternative 
measure against only the prohibitive aspect of the EU Seal Regime. Canada notes that, unlike the 
Panel's analysis of the contribution of the EU Se al Regime, in which it assessed both positive and 
negative contributions to the objective, the Panel made no reference to the manner in which the exceptions, both implicit and explicit, diminish and undermine the contribution to the objective. 
Canada argues that the Panel erred by "ignoring its own findings" and establishing an improper 
benchmark for analysis of the alternative measure that considered the EU Seal Regime as "only a 
prohibition without the explicit or implicit exceptions".
81  
2.21.  Canada maintains that, by failing to assess the alternative measure against the actual 
contribution of the EU Seal Regime, the Panel "assessed the alternative measure against the 
standard of complete fulfilment of the objective".82 Canada considers that such an approach 
created an improper standard against which to co mpare the alternative measure. With regard to 
the first aspect of the objective, Canada argues that it appears the Panel was requiring that the 
alternative measure "would have to limit market access to only those seal products that were, in fact, derived from humanely killed seals"
83, and thus "prescribe adequate animal welfare standards 
and a certification and labelling scheme that would succeed in limiting access to the EU market 
exclusively to seal products derived from humanely killed seals".84 And although the Panel also 
concluded that less stringent animal welfare standards and verification requirements would 
diminish the degree of contribution to the fulfilment  of the objective, Canada argues that the Panel 
"fail[ed] to reconcile this with its finding that the IC and MRM exceptions 'diminish' the extent of 
the contribution that the 'ban' makes to both aspects of the objective and that the 'implicit exceptions' undermine the objective".
85 
2.22.  With regard to the second aspect of the objective – namely, reducing the number of 
inhumanely killed seals – Canada observes that, on the one hand, the Panel found that the alternative measure may subject a greater number of seals to the risks of poor animal welfare by "restoring the potential market" in the European Union.
86 On the other hand, the Panel considered 
that the imposition of animal welfare requirements may also promote the humane killing practices 
in seal hunts that could reduce the number of inhumanely killed seals to some extent. Canada argues, however, that the Panel here also "failed to  make an overall determination of the extent of 
contribution that the alternative measure makes to this aspect of the objective".
87 Canada 
considers that, by comparing the alternative measure to a standard of complete fulfilment of the objective and its two aspects, a standard that the EU Seal Regime itself failed to meet, the Panel 
erred in the application of the "necessity" test under Article 2.2.
88 
2.23.  Canada also argues that the Panel erred by adopting the incorrect legal standard of 
complete fulfilment of the objective with respec t to determining the degree of contribution the 
alternative measure would need to make and thus the reasonable availability of the alternative 
measure on that basis. In Canada's view, "[s]ince complete fulfilment of the objective is a higher 
degree of contribution than what was found under the EU Seal Regime, the Panel erred in finding that the alternative measure is not reasonably available."
89 Canada argues that, when the Panel 
considered whether the EU Seal Regime was reasonably available, it sought to determine whether 
the alternative measure reflected a high level of animal welfare. In doing so, Canada contends, the Panel erred "by basing its conclusion that the alternative measure was not reasonably available on 
                                               
80 Canada's appellant's submission, para. 322. 
81 Canada's appellant's submission, para. 244. 
82 Canada's appellant's submission, para. 246. 
83 Canada's appellant's submission, para. 250. 
84 Canada's appellant's submission, para. 251. (emphasis original) 
85 Canada's appellant's submission, para. 253. 
86 Canada's appellant's submission, para. 256 (quoting Panel Reports, para. 7.484). 
87 Canada's appellant's submission, para. 257 (referring to Panel Reports, para. 7.485). 
88 Canada's appellant's submission, para. 259. 
89 Canada's appellant's submission, para. 261. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  the requirement that it meet this level of animal welfare".90 Canada argues that the Panel also 
wrongly concluded that certification at the country or hunter level is insufficient because it would fail to convey accurate information in respect of seal welfare. Canada thus maintains that the Panel 
erred because its conclusion that the stringent version of the alternative measure imposes the sort 
of prohibitive costs and technical difficulties th at can prevent an alternative measure from being 
considered to be reasonably available was "premised on the alternative measure being required to completely fulfil the objective".
91  
2.24.  Canada submits that the Panel's error in evaluating the alternative measure against 
complete fulfilment of the objective led it to err in its reliance on certain jurisprudence and to disregard other relevant considerations. Canada argues, for instance, that the Panel's misconception about the standard against which to compare the alternative led it to err in its 
reliance on the Appellate Body report in EC – Asbestos .
92 According to Canada, it was not 
appropriate for the Panel to rely on the Appella te Body's analysis of whether the alternative 
measure led to a continuation of asbestos-related health risks because, in contrast to the measure 
in EC – Asbestos , the EU Seal Regime does not achieve the level of protection asserted by the 
European Union.  
2.25.  Canada maintains that the Panel further erred in its interpretation and application of the 
jurisprudence by dismissing the evidence regarding other wildlife hunts and abattoirs. Canada 
points to the Appellate Body's statements in Korea – Various Measures on Beef  as support for 
examining measures applicable to other related product areas in assessing the reasonable availability of a proposed alternative measure.
93 Canada argues that, because the Panel found that 
the EU public's specific moral concern with respect to the inhumane killing of seals was rooted in 
animal welfare generally being an issue of public morals in the EU, "the same regulatory actions applied in the cases of other animals relied on by the EU to support its assertion of a public moral 
on seal welfare are relevant to the issue of wh ich types of regulatory responses are reasonably 
available."
94 In Canada's view, if the Panel had correctly interpreted and applied the jurisprudence, 
it would have found that the types of measures applied with respect to the welfare of other 
animals – including setting animal welfare requirements, certification, labelling, monitoring, and 
enforcement – raise doubts with respect to the ne cessity of the more restrictive EU Seal Regime. 
Furthermore, Canada argues that, because the Panel misinterpreted and misapplied the jurisprudence to the facts of this case, it "erred in considering the costs and logistical demands on 
hunters and marketers of seal products if a strict certification scheme were to be adopted by 
the EU".
95 C a n a d a  a l s o  a r g u e s  t h a t  i t  i s  t h e  b u r d ens and costs imposed by compliance with an 
alternative measure on the responding WTO Member , not on the industry, that are relevant for a 
finding that the alternative measure is reasonably available. 
2.26.  For these reasons, Canada requests the Appellate Body to reverse the Panel's finding, and 
to complete the legal analysis and find that the EU Seal Regime is inconsistent with Article 2.2 of 
the TBT Agreement.96 
2.27.  Canada also asserts a claim under Article 11 of the DSU regarding the Panel's finding that 
the alternative measure could result in an increa se in the number of seals killed inhumanely. In 
particular, Canada argues that the Panel's finding was based on an assertion of the European 
Union, which is itself a restatement of an unsupported assertion made in an amicus curiae  
submission. According to Canada, the Panel thus found that "a stringent animal welfare standard would lead to more seals being killed inhumanely … without any evidentiary support."
97 
                                               
90 Canada's appellant's submission, para. 263. 
91 Canada's appellant's submission, para. 269. 
92 Canada's appellant's submission, paras. 270 and 271 (referring to Appellate Body Report, EC – 
Asbestos , para. 174). 
93 Canada's appellant's submission, paras. 281 and 282 (referring to Appellate Body Report, Korea – 
Various Measures on Beef , paras. 170 and 168, respectively). 
94 Canada's appellant's submission, para. 284. 
95 Canada's appellant's submission, para. 291. 
96 Canada's appellant's submission, para. 335. 
97 Canada's appellant's submission, para. 334. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.1.3  Article XX of the GATT 1994 
2.1.3.1  Scope of Article XX(a) 2.28.  Canada appeals the Panel's finding that the EU Seal Regime was designed to protect public 
morals and therefore falls within the scope of application of Article XX(a) of the GATT 1994. 
Relying on the Panel report in US – Gambling , Canada notes that the first element of the test 
under Article XX(a) is to determine whether a given measure is designed "to protect" public morals.
98 C a n a d a  h i g h l i g h t s  t h a t  t h e  p h r a s e  " t o  p r o t e c t "  i s  a l s o  u s e d  i n  A r t i c l e  X X ( b ) .  I n  EC – 
Asbestos , the panel observed that "the use of the word 'protection' implies the existence of a 
risk."99 In Canada's view, "[g]iven the close similarity between Articles XX(a) and XX(b), the 
interpretive reasoning of the panel in EC – Asbestos is highly relevant to this dispute".100 For these 
reasons, Canada "extrapolate[s] that the test to be applied" in determining whether a measure 
falls within the scope of application of Article XX(a)  includes three elements: (i) "identification of a 
public moral"; (ii) "identification of a risk to that public moral"; and (iii) "establishing that a nexus exists between the challenged measure and the protection of the public moral against that risk in 
the sense that the measure is capable of making a contribution to the protection of that public 
moral".
101 
2.29.  With respect to the first element of its test, Canada argues that the Panel failed to "inquire 
what the content of the [relevant] moral norm is" by evaluating "the standard of right and wrong 
conduct in the European Union with respect to animal welfare".102 According to Canada, "[s]uch an 
inquiry must focus on the content of animal welfare laws, policies and practices" in the European Union.
103 Instead, Canada argues, the Panel "merely po inted to the existence of EU animal welfare 
legislation while noting that the presence of animal welfare policies in a variety of EU and 
EU Member State legislation supports the idea that animal welfare is a moral matter".104 
2.30.  Turning to the second element of its test, Canada asserts that, in order to ascertain whether 
a "risk" to the public morals identified above ex ists, the Panel should have considered "whether 
there is evidence to show that the animal welfare practices with which the measure is concerned fall below that standard."
105 According to Canada, a "risk" to public morals in the European Union 
exists only if the evidence leads to the conclusion that "the commercial seal hunts targeted by the 
ban exhibit a degree or incidence of animal suffering  that falls below the standard or norm of right 
and wrong conduct in the context of animal we lfare shown to prevail within the [European 
Union]."106 Canada recalls that it had presented ev idence before the Panel to show that 
"EU policies and practices with respect to animal welfare included a tolerance for a certain degree 
of animal suffering, both for slaughterhouses and wildlife hunts", and that the welfare risks associated with commercial seal hunts are "'commonplace' in situations that involve the killing of 
animals, especially in the context of wild life hunts".
107 On this basis, Canada argues that the Panel 
failed to consider whether the risks associated with commercial seal hunts "exceeded the accepted level of risk of compromised animal welfare, as reflected in the EU's policies and practices in this 
field".
108  
                                               
98 Canada's appellant's submission, para. 386 and fn 470 thereto (quoting Panel Report, US – Gambling , 
para. 6.455). 
99 Canada's appellant's submission, para. 388 (quoting Panel Report, EC – Asbestos , para. 8.184). 
100 Canada's appellant's submission, para. 389. 
101 Canada's appellant's submission, para. 390. 
102 Canada's appellant's submission, para. 392. 
103 Canada's appellant's submission, para. 392. 
104 Canada's appellant's submission, para. 393 (referring to Panel Reports, para. 7.409). 
105 Canada's appellant's submission, para. 394. 
106 Canada's appellant's submission, para. 396. 
107 Canada's appellant's submission, para. 395 (referring to Canada's first written submission to the 
Panel, paras. 146-162 and 198-213; second written submission to the Panel, paras. 45-49; opening statement at the second Panel meeting, paras. 44-50; response to Panel question No. 60, paras. 248-250; and the following Exhibits submitted by Canada before the Panel: Panel Exhibits CDA-29; CDA-34, p. 453; CDA-47; 
CDA-98; CDA-122; CDA-123, p. 14; CDA-124; JE-8; JE-17; and JE-22, p. 88 (see list of Panel Exhibits, 
pp. 9-10). 
108 Canada's appellant's submission, para. 397. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.31.  Canada also challenges the Panel's findings under Article 11 of the DSU, specifically in 
respect of the Panel's finding "that the circumstances and conditions of seal hunts present certain specific challenges to the humane killing of seals".
109 Canada argues that, by characterizing seal 
hunts as "unique", and by disregarding the evidence relating to other situations involving the 
killing of animals, the Panel "failed to provide th e comparative basis that would have allowed it to 
evaluate whether the commercial seal hunt failed to satisfy prevailing animal welfare standards in the European Union that provide the foundation for the alleged public moral concern".
110  
2.32.  Canada asserts that "[t]he Panel did not pr ovide any analysis based on the evidence before 
it to support its finding that the physical environment of seal hunts was distinguishable from wildlife hunts."
111 While the Panel did consider the European Food Safety Authority's Scientific 
Opinion on Animal Health and Welfare112 (EFSA Scientific Opinion) that compared the conditions 
between seal hunts and abattoirs, it did not refer to any part of the EFSA Scientific Opinion that 
looked at other wildlife hunts.113 Canada argues that much of the evidence regarding seal hunts, 
including the EFSA Scientific Opinion, provided comparison with other hunts "for the purpose of 
making qualified conclusions regarding the seal hunt", and such comparisons were necessary for 
the findings in the EFSA Scientific Opinion.114 Because the Panel "felt that the other wildlife hunts 
were not comparable", Canada argues, the Panel "deviated from the proper scientific method 
employed by the experts to arrive at their conclusion on the seal hunt".115 According to Canada, 
the Panel, "[a]t a minimum", should have provided "a thorough assessment of the findings in the EFSA Scientific Opinion regarding other wildlife hunts."
116 Canada argues that the Panel acted 
inconsistently with Article 11 of the DSU when it failed to provide reasons why environmental 
conditions between seal hunts and other wildlife hunts "are so different as to make the animal 
welfare aspects of the respective hunts incomparable", and when it did not objectively assess the evidence before it, "particularly evidence that  goes to the heart of Canada's arguments".
117 
2.33.  Canada also argues that the Panel did not properly compare the risks to animal welfare that 
arise from other terrestrial hunts. In particular, Canada points out that the Panel failed to take into account its evidence and arguments with respect to poor animal welfare outcomes in deer hunts, 
and, therefore, failed to recognize and compar e the poor animal welfare outcomes in other 
terrestrial hunts.
118 According to Canada, the particular characteristics of seal hunts identified by 
the Panel "that pose 'various risks to the welfare of seals' including things such as ineffective stunning, delays in the killing process and struck an d lost rates are all equally evident in wildlife 
hunts".
119 Canada recalls that it "had shown that the shooting of wildlife such as deer pose similar 
risks due to poor marksmanship, wounding as opposed to killing of deer as well as the inordinate delay between a shot and when a hunter checks the animal".
120 The Panel, however, "failed to 
disclose why this evidence that is of utmost relevance for Canada's arguments did not have a 
bearing on its determination regarding the particular risks to seal hunting".121 
                                               
109 Canada's appellant's submission, para. 400 (quoting Panel Reports, para. 7.222). 
110 Canada's appellant's submission, para. 400.  
111 Canada's appellant's submission, para. 401. 
112 European Food Safety Authority, "Scientific Opinio n of the Panel on Animal Health and Welfare on a 
request from the Commission on the Animal Welfare aspects of the ki lling and skinning of seals", The EFSA 
Journal  (2007), No. 610, pp. 1-122 (Panel Exhibit JE-22). 
113 Canada's appellant's submission, para. 401 (referring to Panel Reports, fn 254 to para. 7.187). 
114 Canada's appellant's submission, para. 403 (referring to the following Exhibits submitted by Canada 
before the Panel: Panel Exhibits JE-20; JE-21; JE-22; JE-24; JE-31; and CDA-34 (see list of Panel Exhibits, pp. 9-10). 
115 Canada's appellant's submission, para. 403. 
116 Canada's appellant's submission, para. 403. (fn omitted) 
117 Canada's appellant's submission, para. 402. 
118 Canada's appellant's submission, para. 404 (referring to  DEFRA, Current and Future Deer 
Management Options , Report on behalf of DEFRA European Wildlife Division, December 2003, pp. 14-15, 
available at: < http://www.naturalengland.org.uk/Images/managementoptions_tcm6-4637.pdf > (Panel Exhibit 
CDA-123)). 
119 Canada's appellant's submission, para. 406. 
120 Canada's appellant's submission, para. 406 (referring  to Canada's oral statement at the second Panel 
meeting, paras. 42-49). 
121 Canada's appellant's submission, para. 406. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.1.3.2  The Panel's analysis of "necessity" 
2.34.  Canada claims that the Panel also erred in its interpretation and application of the 
"necessity" test under Article XX(a) of the GATT 1994. To the extent that the Panel relied upon its analysis under Article 2.2 of the TBT Agreement, Canada puts forth the same claims of error with 
respect to the Panel's "necessity" analysis under Article XX(a) as Canada's claims of error with 
respect to Article 2.2 of the TBT Agreement.
122 Additionally, Canada presents a "specific claim of 
legal error" concerning the Panel's interpretation of the "material contribution" test established by 
the Appellate Body in Brazil – Retreaded Tyres .123 
2.35.  Canada takes issue with the Panel's conclusion that "for a preliminary finding that 'the 
measure as a whole is "necessary"' the contribution 'made by the "ban" to the identified objective must be shown to be at least material given the extent of its trade-restrictiveness'."
124 According 
to Canada, in taking this approach, the Panel appears to have relied on the statement of the 
Appellate Body in Brazil – Retreaded Tyres , that refers to "restrictive effects" "as severe as those 
resulting from an import ban".125 Canada highlights, however, that in that dispute the panel 
analysed the import ban on retreaded tyres as a measure on its own and the MERCOSUR exception 
as a separate measure because of the structure of the complainant's request for the establishment of a panel in that case.
126 Relying on the Appellate Body's observations in Brazil – Retreaded 
Tyres , Canada argues that "the jurisprudence does not provide a basis upon which only the ban, 
which is not the aspect of the measure found inconsistent with the other provisions of the GATT 1994, is examined for the purposes of determining whether the measure makes a material contribution to the objective."
127 For these reasons, Canada contends that the Panel erred in its 
interpretation and application of the "contribution" test by only considering the "ban" aspect of the 
EU Seal Regime when considering whether the me asure makes a "material" contribution to its 
identified objective.128 
2.36.  Next, Canada argues that, had the Panel a pplied the contribution element of the "necessity" 
test correctly, it would have found that the EU Seal Regime failed to make a material contribution to its objective. Canada recalls that, under its Article XX(a) analysis, the Panel referred to its 
findings in the context of Article 2.2 of the TBT Ag reement to conclude that "[o]verall, with respect 
to the EU Seal Regime as a whole … we found that it contributed to a certain extent to its objective."
129 T h e  P a n e l ' s  c o n c l u s i o n  t h a t  t h e  E U  S e a l  R e g i m e  m a k e s  " s o m e  c o n t r i b u t i o n "  o r  
"contributes to a certain extent" does not provide a "sufficient or meaningful articulation" of the 
degree of contribution of the measure to the objective.130 For a measure to be considered 
"necessary", "it should fall significantly closer to the pole of 'indispensable' rather than the opposite pole of 'simply making a contribution to'."
131 However, the EU Seal Regime's "degree of 
contribution" identified by the Panel, "fall[s] clos er to the 'simply making a contribution to' end of 
the spectrum rather than the indispensable end".132 For these reasons, Canada contends that the 
Panel erred in characterizing "some contribution" and "makes a contribution to" the identified 
objective as equivalent to making a "material contribution", as suggested by the Appellate Body in 
Brazil – Retreaded Tyres .133 
                                               
122 Canada's appellant's submission, paras. 407 an d 408 (referring to Panel Reports, paras. 7.634 
and 7.637-7.639).  
123 Canada's appellant's submission, para. 409 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 150). 
124 Canada's appellant's submission, para. 416 (quoting Panel Reports, para. 7.636). 
125 Canada's appellant's submission, para. 418 (quoting Panel Reports, para. 7.635). 
126 Canada's appellant's submission, para. 418 (quoting Appellate Body Report, Brazil – Retreaded 
Tyres , para. 123). 
127 Canada's appellant's submission, paras. 419 and 420 (referring to Appellate Body Report, Brazil – 
Retreaded Tyres , para. 126). 
128 Canada's appellant's submission, para. 421 (quoting Panel Reports, para. 7.637). 
129 Canada's appellant's submission, para. 428 (quoting Panel Reports, para. 7.638). 
130 Canada's appellant's submission, para. 429. 
131 Canada's appellant's submission, para. 423 (quoting Appellate Body Report, Korea – Various 
Measures on Beef , para. 161). 
132 Canada's appellant's submission, para. 429. 
133 Canada's appellant's submission, paras. 430 and 424, respectively (referring to Appellate Body 
Report, Brazil – Retreaded Tyres , para. 150). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.37.  Canada also takes issue with the Panel's statement: "[w]e consider, and the parties do not 
dispute, that … such public moral concern [with regard to the protection of animals] is indeed an important value or interest."
134 Specifically, Canada refers to its second written submission to the 
Panel to assert that it "did not agree that the specific public moral concern[s] in issue [were] 
considered important or presented a serious risk".135 For this reason, Canada asserts that the 
Panel erred in stating that Canada did not dispute the importance of the public moral concerns at 
issue in this case, and thus erred in making an objective assessment of the matter, contrary to 
Article 11 of the DSU. 
2.38.  Canada, therefore, requests the Appellate Body to reverse the Panel's intermediate findings 
under Article XX(a) of the GATT 1994 that: (i) the measure falls within the scope of application of Article XX(a); (ii) the EU Seal Regime as a whole makes a contribution to the identified objective; 
and (iii) the alternative measure advanced by Canada is not reasonably available.
136 Canada also 
requests the Appellate Body to complete the lega l analysis and find that the EU Seal Regime 
cannot be provisionally justified under Article XX(a).137 
2.1.3.3  The Panel's analysis under the chapeau of Article XX 
2.39.  Canada argues that, although the Panel came to the correct conclusion, it erred in its 
reasoning under the chapeau of Article XX of th e GATT 1994 by finding that the discrimination 
against Canadian "non-Inuit" seal products is justifiable. Canada takes issue with the Panel's 
"exclusive" reliance on its legal analysis and find ings under Article 2.1 of the TBT Agreement to 
determine whether the EU Seal Regime is applied in a manner that constitutes "arbitrary or unjustifiable discrimination" within the meaning of the chapeau of Article XX.
138 Canada argues 
that, by "relying solely on the ['legitimate regulatory distinction'] test it had devised under 
TBT Article 2.1", the Panel committed an "error in law".139 Canada maintains that the general 
overlap in scope and similarities in the obje ctives between the GATT 1994 and the TBT Agreement 
are not sufficient to "import the results of the ['legitimate regulatory distinction'] test directly into 
the analysis of the chapeau requirements", while "ignor[ing] crucial elements of the test for arbitrary or unjustifiable discrimination" under the chapeau.
140 According to Canada, although the 
text of the chapeau of Article XX is similar to the text of the sixth preambular recital of the 
TBT Agreement, there is no reason why "the word ing of the sixth recital of the preamble of the 
TBT Agreement, created in 1994, should affect th e interpretation of the chapeau requirements of 
Article XX, which dates back to 1947."141 Canada asserts that the Panel "did not have a proper 
basis under the customary international law rules of treaty interpretation to read into the text of 
the chapeau requirements the ['legitimate regulatory distinction'] test applicable to another agreement".
142 Canada also argues that, by relying on its analysis under Article 2.1, the Panel 
erred by failing to apply the test la id down by the Appellate Body in Brazil – Retreaded Tyres . In 
that case, the Appellate Body ended its analysis under the chapeau of Article XX after finding that 
"there was no rational connection between the discrimination in the Brazilian measure and its 
objective".143 Canada argues that, "[a]t a minimum", the Panel should have referred to the 
"rational connection" test that is directly applicable to the chapeau and provided an explanation why it did not apply the test in its chapeau analysis.
144 
2.40.  Canada asserts that "[t]he ['legitimate regulatory distinction'] test developed by the Panel 
for TBT Article 2.1 did not properly assess the just ifiability of the rationale for the regulatory 
distinction in the light of the identified objective of the measure."145 According to the Appellate 
Body, Canada adds, "a rationale that purports to explain discrimination cannot be justified under 
                                               
134 Canada's appellant's submission, para. 431 (referring to Panel Reports, para. 7.632). 
135 Canada's appellant's submission, para. 434 (referring to Canada's second written submission to the 
Panel, paras. 176, 179, and 181-183; and Panel Report, US – Gambling , paras. 6.489-6.492). 
136 Canada's appellant's submission, para. 467. 
137 Canada's appellant's submission, para. 467. 
138 Canada's appellant's submission, paras. 447 and 450. 
139 Canada's appellant's submission, para. 449. 
140 Canada's appellant's submission, para. 450. 
141 Canada's appellant's submission, para. 452. 
142 Canada's appellant's submission, para. 453. 
143 Canada's appellant's submission, para. 456 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 228). 
144 Canada's appellant's submission, para. 457. 
145 Canada's appellant's submission, para. 460. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Article XX where there is no rational connection to the objective or if it goes against the 
objective."146 In Canada's view, the chapeau analysis "is not designed to assess whether a WTO 
Member has properly put forward a policy rationale that is not covered by one of the paragraphs of 
Article XX".147 Canada argues that the Panel erred "by finding that discrimination arising from a 
regulatory distinction was justified despite the fact that the objective of that distinction had not 
been assessed to determine whether it fell within the scope of application of any of the paragraphs under Article XX".
148 Canada further argues that the Panel also erred "by failing to take into 
account the fact that, not only is there no rational connection between the discrimination and the 
policy objective of addressing the EU public moral concerns regarding seal welfare", but also that the exceptions in fact "go against that objective by enabling IC and MRM-sourced seal products to be sold on the EU market".
149 
2.41.  In the event that the Appellate Body does not agree with Canada that the EU Seal Regime is 
not provisionally justified under Article XX(a) of  the GATT 1994, Canada requests the Appellate 
Body to reverse the Panel's intermediate finding that the discrimination against Canadian 
commercial seal products arising from the IC exception is justifiable.150 Canada requests the 
Appellate Body to complete the legal analysis on this specific point by applying the test set out in Brazil – Retreaded Tyres and to find that the discrimination between Canadian commercial seal 
products and IC seal products arising from the application of the EU Seal Regime is "arbitrary and 
unjustifiable".
151 Should the Appellate Body disagree with its requests, Canada clarifies that its 
challenge under the chapeau of Article XX of the GATT 1944 is restricted to the Panel's reasoning thereunder, and not its ultimate finding that the EU Seal Regime does not meet the requirements 
of the chapeau.
152 
2.2  Claims of error by Norway – Appellant 
2.2.1  Article 2.2 of the TBT Agreement 
2.2.1.1  The Panel's identification of the objective of the EU Seal Regime 
2.42.  Norway contends that the Panel erred in finding that the protection of the interests of 
indigenous communities, as reflected in the IC exception, and the promotion of the sustainable 
management of marine resources, as reflected in the MRM exception, do not amount to 
"objectives" of the EU Seal Regime for purposes  of Article 2.2 of the TBT Agreement. Norway 
challenges the Panel's findings on several grounds. 
2.2.1.1.1  Reasons provided by the Panel 
2.43.  Norway argues that the Panel gave erroneous  reasons for finding that the protection of the 
IC and MRM interests do not amount to an objective of the EU Seal Regime within the meaning of Article 2.2 of the TBT Agreement. Norway submit s that, even assuming that the Panel properly 
assessed the evidence before it, it nevertheless erred in its application of the law to the facts in 
finding that the IC and MRM interests do not amount to an objective of the EU Seal Regime within the meaning of Article 2.2. Specifically, Norway takes issue with four aspects of the Panel's 
reasoning that led the Panel to conclude that the interests accommodated in the IC and 
MRM exceptions do not amount to objectives of the EU Seal Regime.  
2.44.  First, Norway agrees that the public conc erns regarding seal welfare must be distinguished 
from the policy interests targeted by the Euro pean Union in allowing the marketing of seal 
products derived from IC and MRM hunts. However, Norway emphasizes that "the mere fact that 
the three different policy interests pursued by the legislation (public concerns on seal welfare; protection of IC communities; and promoting sust ainable marine resource management) must be 
distinguished is not a valid reason for considering that two of the three interests do not amount to 
                                               
146 Canada's appellant's submission, para. 461 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 228). 
147 Canada's appellant's submission, para. 464. 
148 Canada's appellant's submission, para. 463. 
149 Canada's appellant's submission, para. 466.  
150 Canada's appellant's submission, para. 468. 
151 Canada's appellant's submission, para. 468. 
152 Canada's appellant's submission, para. 468. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  'objectives'."153 According to Norway, "the need to distinguish the three legislative interests 
pursued by the measure was merely an organizational issue  for the Panel in structuring its analysis 
and reasoning" and not a substantive reason to find that two of the interests are not objectives.154 
2.45.  Second, Norway suggests that the Panel erred in assuming that, for an interest to amount 
to a regulatory objective, it must be "grounded in the concerns of citizens".155 Norway emphasizes 
that this need not necessarily be the case. For ex ample, an interest "may be grounded in policy 
interests raised by legislators or regulators that enjoy limited or no public support and do not 
address citizens' concerns".156  
2.46.  Third, according to Norway, the Panel erre d by assuming that the IC and MRM exceptions 
could not amount to objectives of the EU Seal Regime given that they were "included in the course of the legislative process".
157 Norway submits instead that "it is to be expected that the objectives 
of the legislative or regulating entity responsible for adopting the measure would arise 'in the 
course of the legislative process'."158  
2.47.  Fourth, Norway alleges that the Panel erre d by relying on the Appellate Body report in 
Brazil – Retreaded Tyres  to support its conclusion that the IC and MRM interests were not 
"objectives". Norway notes in particular that the exception at issue in Brazil – Retreaded Tyres  "did 
not form part of the measure itself" but was "made effective through the application of the 
measure" and followed from a ruling of the MERCOSUR tribunal.159 According to Norway, "[t]he 
factual circumstances surrounding the adoption of that exception were, therefore, very different 
from the circumstances surrounding the adoption of the IC and [M]RM 'exceptions', which were included by the legislator at the time it adopted the measure."
160 Norway adds that "[t]he mere 
fact that the respondent in a different dispute did not argue that an exception under a different 
measure, adopted in unusual circumstances in a different country, had distinct policy objectives, does not mean that exceptions cannot have distinct policy objectives."
161 Nor does it mean, 
according to Norway, that "the IC and MRM requirem ents – even if they were 'exceptions' – do not 
evidence distinct policy objectives."162 Norway adds that, if a regulator adopts exceptions to 
general rules, there is usually a policy reason for doing so – "the exception will have some aim, 
target or goal, just as the IC and MRM requirements do".163 
2.48.  On this basis, Norway claims that the Pa nel erred under Article 2.2 of the TBT Agreement by 
providing "invalid reasons" for concluding that the interests accommodated by EU legislators in the 
IC and MRM exceptions do not amount to objectives  of the EU Seal Regime, and therefore requests 
the Appellate Body to reverse the Panel's findings under Article 2.2 of the TBT Agreement.164  
2.2.1.1.2  The Panel's legal characteriza tion of the objective of the measure 
2.49.  In addition to challenging the reasoning provided by the Panel in paragraph 7.402 of the 
Panel Reports, Norway contends, as a separate matter, that the evidence before the Panel, as well 
as the Panel's own findings and the Panel's findings relating to the legislative history, text, and 
structure, design, and expected operation of th e measure, do not support the Panel's overall 
conclusion that "the EU Seal Regime pursues a single objective, and does not pursue objectives 
relating to the IC and [M]RM requirements".165 According to Norway, since the task of the Panel 
under Article 2.2 consisted of assessing the eviden ce before it for the purpose of identifying the 
objectives of the measure, the Panel's errors in this regard constitute errors in the legal 
characterization of the facts. Norway challenges several aspects of the Panel's analysis. 
                                               
153 Norway's appellant's submission, para. 83. 
154 Norway's appellant's submission, para. 84. (emphasis original) 
155 Norway's appellant's submission, para. 85. (emphasis omitted) 
156 Norway's appellant's submission, para. 87. 
157 Norway's appellant's submission, para. 91 (quoting Panel Reports, para. 7.402). 
158 Norway's appellant's submission, para. 94. 
159 Norway's appellant's submission, para. 98 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 122 and fn 163 thereto; and quotin g Panel Reports, fn 659 to para. 7.402). 
160 Norway's appellant's submission, para. 98. 
161 Norway's appellant's submission, para. 99. 
162 Norway's appellant's submission, para. 99. 
163 Norway's appellant's submission, para. 100. 
164 Norway's appellant's submission, paras. 108 and 109. 
165 Norway's appellant's submission, para. 114. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.50.  First, with regard to the Panel's analysis of the legislative history of the EU Seal Regime, 
Norway argues that the Panel erred in finding that  addressing EU public moral concerns regarding 
seal welfare was the "principal" objective of the EU Seal Regime, when, according to Norway, the legislative history of the measure indicated that "the interests of indigenous communities and 
sustainable resource management were also priorities in the minds of legislators when developing 
the measure."
166 In support of its position, Norway refers to the legislative proposal by the 
European Commission for a regulation concerning trade in seal products167 (Commission Proposal), 
which not only makes reference to public concerns regarding seal welfare, but also includes 
protecting IC interests as one of the "[g]rounds for and objectives of the proposal".168 According to 
Norway, the Panel failed to take this into account in its analysis. Norway also refers to the report of the Committee on the Internal Market and Consumer Protection on the Commission Proposal
169 
(Parliament Report) and an opinion provided th erein by the Committee on Agriculture and Rural 
Development of the European Parliament (AGRI), which, in Norway's view "indicated the importance to EU legislators of the policy objectives underlying the IC and [M]RM objectives".
170 
Norway further explains that the Committee on the Environment, Public Health and Food Safety of 
the European Parliament (ENVI) proposed, in the Parliament Report, "a full ban on trade in seal products with a limited exemption for Inuit communities"
171 and the Rapporteur of AGRI also 
supported restrictions that excluded Inuit communities from the scope of the regulation.172 In 
addition, referring to remarks made by Finland and Sweden within the Council of the European 
U n i o n ,  N o r w a y  a r g u e s  t h a t  " t h e  a d o p t i o n  o f  t h e  E U  S e a l  R e g i m e  i n  t h e  p r e c i s e  f o r m  i t  t o o k  reflected a compromise attempt to incorporate a mult itude of 'policy' aims and objectives proposed 
by the various stakeholders in the European Union's institutions: the Parliament, the Commission 
and the Council."
173 For Norway, these goals were animal welfare, protection of Inuit interests, and 
marine resource management.  
2.51.  Norway submits that, despite this evidence, "the vast majority of the Panel's reasoning on 
objectives examines whether the evidence supported the objective asserted by the European Union, namely that the measure addressed public concerns about seal welfare."
174 Moreover, when 
it came to the objectives asserted by the complainants, the Panel made only "selective" references 
to some of the above evidence.175 For example, according to Norway, the Panel "did not … 
consider the role played by passages from the same  Proposal on the need to 'ensur[e]' that the 
regulation protected the Inuit interests, in inform ing the objective of the EU measure" and did not 
mention the Parliament Report.176 
2.52.  Regarding the Panel's analysis of the text of the EU Seal Regime, Norway asserts that the 
Basic Regulation reflects the fact that the IC an d MRM interests "are prominently reflected in the 
measure in a manner that gives rise to a hierarchy of interests established in favour of" the 
interests accommodated in those exceptions.177 In Norway's view, the design and structure of 
those exceptions indicate that the legislator "prioritized market access for products from qualifying 
hunts".178 Norway further alleges that the Panel "entirely overlooked" the Implementing 
Regulation, noting simply that, "while providing practical details necessary for the enforcement of the Basic Seal Regulation, the Implementing Regulation does not in itself assist us in identifying the objective of the measure."
179 Norway points out that the Implementing Regulation is an 
"integral part" of the EU Seal Regime, and that "detail with which the permissive elements are 
                                               
166 Norway's appellant's submission, para. 120. 
167 European Commission, Proposal for a regulati on of the European Parliament and the Council 
concerning trade in seal products (23 July 2008), COM(2008) 469 final (Panel Exhibit JE-9). 
168 Norway's appellant's submission, para. 121 (quoting Commission Proposal, p. 5). 
169 Committee on the Internal Market and Consumer Protection, Report on the proposal for a regulation 
of the European Parliament and of the Co uncil concerning trade in seals products  (5 March 2009), 
A6-0118/2009 (Panel Exhibit JE-4). 
170 Norway's appellant's submission, para. 123. 
171 Norway's appellant's submission, para. 124 (quoting Parliament Report, Opinion of ENVI, Short 
Justification, p. 33). 
172 Norway's appellant's submission, para. 125 (referring to Parliament Report, Opinion of AGRI, Short 
Justification, pp. 56 and 62). 
173 Norway's appellant's submission, para. 129. 
174 Norway's appellant's submission, para. 130. 
175 Norway's appellant's submission, para. 130. 
176 Norway's appellant's submission, para. 131. 
177 Norway's appellant's submission, para. 149. 
178 Norway's appellant's submission, para. 153. 
179 Norway's appellant's submission, para. 157 (quoting Panel Reports, fn 633 to para. 7.388). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  described and provided for illustrate that the IC and [M]RM concerns were prominent in the minds 
of the legislators."180 
2.53.  Further, Norway claims that the Panel failed to consider and give appropriate weight to its 
own findings  in other sections of the Panel Reports regarding the design, structure, and expected 
operation of the EU Seal Regime, which indicates that the IC and MRM exceptions amount to 
objectives of the EU Seal Regime. In particular, Norway recalls that the Panel noted earlier in its Reports that the EU Seal Regime is expected "to operate in such a way that most of the products 
from Greenland and Sweden qualify under the IC requirements and are therefore permitted into 
the EU market, whereas practically none of the seal products from Norway and Canada are permitted".
181 Norway adds that Greenland is expected to supply large quantities of the imported 
seal products and has the capacity to meet all of the European Union's demand. Thus, through the 
design and operation of the EU Seal Regime, seal products are  not banned, but are instead 
allowed, through the IC and MRM exceptions. According to Norway, "[t]he expected operation of the measure therefore fulfills the aim of the regulators to ensure that products meeting the IC and 
[M]RM requirements have access to the EU market."
182 Norway further claims that the Panel 
"failed to draw the relevant legal conclusion, namely, that the operation of the measure reinforces its aim or goal of pursuing the IC, [M]RM,  and personal use interests, and in fact undermines  the 
degree to which the measure addresses public concerns about seal welfare".
183 
2.54.  Norway further emphasizes that, in any event, the issue is not whether the IC and 
MRM interests are more or less important than seal welfare; the issue is simply whether the objectives of the measure include promoting IC and MRM interests.
184 To be an objective, a policy 
interest must form a regulatory goal or target, whether it is more, less, or equally important 
compared to other goals. Norway argues that a panel may have regard to the ways in which different interests are pursued and balanced, but it need not conclude that there is some absolute 
hierarchy among different objectives. 
2.2.1.1.3  Claims under  Article 11 of the DSU 
2.55.  Norway further claims that, through its tr eatment of the evidence relating to the design, 
structure, and legislative history of the EU Seal  R e g i m e ,  t h e  P a n e l  f a i l e d  t o  m a k e  a n  o b j e c t i v e  
assessment of the facts, as required under Articl e 11 of the DSU, in finding that the interests 
pursued by the IC and MRM exceptions do not amo unt to separate and independent objectives of 
the EU Seal Regime. Norway's claim that the Panel acted inconsistently with its obligations under 
Article 11 of the DSU is based on four grounds. 
2.56.  Norway contends, first, that the Panel di sregarded evidence provid ed by Norway showing 
that the legislative objectives of the EU Seal Regime included protecting the economic and social 
interests of indigenous communities, and separately promoting the sustainable management of 
marine resources.
185 Instead, the Panel undertook a "selec tive" and "unbalanced" review of the 
evidence of the legislative history, dedicating mo st of its analysis to addressing evidence that 
supported the public morals objective asserted by the European Union.186 In contrast, the Panel's 
"discussion and consideration of the IC and [M]RM objectives asserted by Norway receive[d] a few 
cursory lines of commentary".187 Norway emphasizes, however, that "[a]n objective assessment of 
the facts requires substantially more than 'notice' by a panel."188 Norway further asserts that the 
Panel's "imbalanced treatment of the evidence is highlighted by its selective reliance" on the 
Commission Proposal.189 In this regard, Norway notes that "[t]he Panel referred to the 
Commission's Proposal to support the view that public concerns regarding seal welfare were to be 
addressed in the measure, quoting two full paragraphs of that Proposal."190 Yet, according to 
                                               
180 Norway's appellant's submission, para. 158. 
181 Norway's appellant's submission, para. 164.  
182 Norway's appellant's submission, para. 164. (emphasis original) 
183 Norway's appellant's submission, para. 165. (emphasis original) 
184 Norway's opening statemen t at the oral hearing. 
185 Norway's appellant's submission, para. 180 (referring to Norway's first written submission to the 
Panel, paras. 591-630; and second written submission to the Panel, paras. 166-170). 
186 Norway's appellant's submission, para. 182. 
187 Norway's appellant's submission, para. 183. 
188 Norway's appellant's submission, para. 184. 
189 Norway's appellant's submission, para. 188 (referring to Commission Proposal, p. 5). 
190 Norway's appellant's submission, para. 188. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Norway, "the Panel failed to attribute equal (or for that matter any) weight in its discussion to 
other objectives highlighted in that very same  document"191, namely that "[t]he fundamental 
economic and social interests of Inuit communities traditionally engaged in the hunting of seals should not be adversely affected."
192 
2.57.  Second, Norway asserts that the Panel failed adequately to take into account the text of the 
EU Seal Regime, and in particular the Implementi ng Regulation for purposes of identifying the 
objective of the EU Seal Regime. Norway argues that , in its consideration of the text of the EU Seal 
Regime, the Panel erred because it failed to appreciate the import of its own finding that the 
preamble of the Basic Regulation sets out three main considerations with  equal  prominence, which 
included those relating to IC and MRM interests. According to Norway, the Panel's failure to explain 
why, in the light of that finding, "it still gave prom inence singularly to the seal welfare concerns of 
the EU public, constitutes further error".193 
2.58.  Third, according to Norway, the Panel failed to account for the relevance of the measure's 
operation to discern the objective of the EU Seal Regime. More specifically, the Panel failed entirely 
to consider and give probative weight to its own findings in other sections of its Reports. According 
to Norway, these show that the EU Seal Regime will operate to allow into the EU market "all, or virtually all" seal products from Greenland under the IC exception, and that seal products from 
certain EU countries, including Sweden, would "likely qualify" under the MRM exception.
194 Norway 
posits that this evidence concerning the expected  operation of the EU Seal Regime "confirms that 
the goals expressed in the legislative history, and reflected in the text and hierarchy of the 
measure, are implemented in the measure's operation to a considerable practical extent".195 Thus, 
Norway contends that, together "with the remainin g evidence, these findings should have revealed 
to the Panel that the EU Seal Regime pursues objectives relating to the protection of IC and [M]RM interests".
196 
2.59.  Fourth, Norway alleges that the Panel's reasoning in paragraph 7.402 of its Reports lacks 
coherence to a degree that falls short of basic standards required under Article 11 of the DSU and is not supported by the evidence that was before the Panel. In this regard, Norway recalls its 
argument that the reasons given by the Panel for finding that protecting the IC and MRM interests 
were not objectives of the EU Seal Regime were: (i) that the three interests pursued in the measure "must be distinguished"; (ii) that the IC and MRM interests are not grounded "in the concerns of EU citizens"; (iii) that the IC and MRM "exceptions" were "included in the legislative 
process"; and (iv) that the exception in Brazil – Retreaded Tyres  was not argued to constitute an 
"objective".
197 In Norway's view, "these reasons do not provide a coherent basis for the Panel's 
conclusion."198 Moreover, according to Norway, the Panel's reasoning fails to address the 
"considerable evidence" on the Panel record showin g that protection of the IC and MRM interests 
were objectives of the measure.199 
2.2.1.2  The Panel's analysis of the contributi on of the EU Seal Regime to its objective 
2.60.  Norway claims that the Panel erred in finding that the EU Seal Regime was more trade 
restrictive than necessary within the meaning of Article 2.2 of the TBT Agreement. Norway first 
directs its challenge at the Panel's finding regarding the degree of contribution made by the EU Seal Regime to the protection of EU public mo rals. Norway asserts that the Panel's findings on 
contribution were insufficiently clear and precise, and were not properly substantiated.  
                                               
191 Norway's appellant's submission, para. 188. (emphasis original) 
192 Norway's appellant's submission, para. 188 (quoting Commission Proposal, p. 5).  
193 Norway's appellant's submission, para. 198. 
194 Norway's appellant's submission, para. 204 (q uoting Panel Reports, paras. 7.164 and 7.351, 
respectively). 
195 Norway's appellant's submission, para. 205. 
196 Norway's appellant's submission, para. 206. 
197 Norway's appellant's submission, para. 208 (quoting Panel Reports, para. 7.402). 
198 Norway's appellant's submission, para. 209. 
199 Norway's appellant's submission, para. 209. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.2.1.2.1  Degree of contribution 
2.61.  Norway contends that the Panel was required "to state with sufficient clarity and precision  
the degree or extent  of the net overall positive contribution  it found to be made by the EU Seal 
Regime" to its objective.200 Recognizing that a panel enjoys flexibility in conducting its analysis of 
the degree of the contribution, Norway observes that "the Panel opted for a methodology in which 
it considered the degree of positive, then negati ve, contribution made by the measure to each 
aspect of the EU public morals objective" before "reaching an overall conclusion that there is a net 
positive contribution to the objective of the measure".201 Norway maintains that "the Panel was 
[thus] required to articulate sufficiently clearly and precisely the degree of the contribution made by the measure to each aspect of the objective, so that it could conclude with sufficient precision and clarity" that the measure made an overall net positive contribution to its objective.
202 Because 
the prohibitive and permissive aspects of the measure at issue "counteract each other"203, Norway 
considered it particularly important that the Panel "articulate with clarity and precision the degree  
to which the positive contributions made by the prohibitive elements exceeded  the negative 
contributions made by the permissive elements".204 This, Norway adds, would provide an objective 
basis on which to conclude that the measure makes an overall net positive contribution to its objective, and provide a benchmark for purposes of comparison with the contribution of alternative 
measures. 
2.62.  Norway maintains that the Panel failed to establish the degree of contribution made by 
either of the two aspects of the public morals ob jective of the EU Seal Regime identified by the 
Panel, namely: (i) whether the measure ensures that EU citizens do not participate as consumers 
in products derived from seals killed inhumanely; and (ii) reducing the incidence of the inhumane 
killing of seals. Regarding the first aspect of the objective, Norway argues that, although the Panel 
concluded that the prohibitive element of the measur e prevents the EU public from purchasing seal 
products to the "extent" that the banned produc ts include products derived from seals killed 
inhumanely, the Panel never considered to what extent these hunts actually involved inhumane killing.
205 Moreover, Norway contends that the Panel failed in its assessment of the negative 
contribution of the IC and MRM hunts by not articulating with any clarity the extent of the risk of 
inhumane killing in these hunts, particularly in relation to the banned hunts. Norway concludes 
that the Panel, having failed to articulate the degree of the positive and negative contributions 
made, "had no basis to conclude that the measure actually makes a net positive contribution to 
that aspect of the objective".206 Although the Panel concluded that the ban is capable of making a 
contribution to the measure's objective, Norway argues that it never determined "in what circumstances will the capability  of contributing be converted into an actual  contribution".
207 
2.63.  With regard to the second aspect of the ob jective, Norway first criticizes the Panel for failing 
to explain the basis for treating a reduction in demand for seal products as a proxy for a reduction in inhumane killing. According to Norway, "[e]ven if demand were to fall, inhumane killing could 
increase if the measure favours supply from a hunt with poorer animal welfare outcomes."
208 
Norway contends that, under these circumstances, the supply of seal products derived from inhumanely killed seals would increase, which is what occurs under the EU Seal Regime. Norway argues that the Panel failed to articulate the ex tent of the positive contribution made by the 
prohibitive elements of the measure to this as pect of the objective. In particular, Norway 
maintains that the EU Seal Regime is incapable of affecting consumer demand, and that the Panel itself acknowledged that it was unable to draw any concrete conclusions based on the available 
data. Moreover, Norway considers that the Panel's conclusion that the measure "may have 
contributed" to reducing EU demand is nothing more than a "possibility" that the measure did 
so.
209  
                                               
200 Norway's appellant's submission, para. 262. (emphasis original) 
201 Norway's appellant's submission, para. 263. 
202 Norway's appellant's submission, para. 263. 
203 Norway's appellant's submission, para. 265. 
204 Norway's appellant's submission, para. 266. (emphasis original) 
205 Norway's appellant's submission, para. 273. 
206 Norway's appellant's submission, para. 281. 
207 Norway's appellant's submission, para. 284. (emphasis original) 
208 Norway's appellant's submission, para. 291. 
209 Norway's appellant's submission, para. 301 (quoting Panel Reports, para. 7.459). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.64.  Norway argues that the Panel's articulation of the negative contribution made to the second 
aspect of the measure is also inadequate. According to Norway, the Panel did not set out the extent of the negative contribution, or the extent to which that contribution is minimized by the inability of certain indigenous communities to benefit from the IC exception, or by commercial 
activity occurring under one of the implicit exceptions. As it did in respect of the contribution of the 
first aspect of the measure, Norway concludes that the Panel had no basis to conclude that the measure actually makes an overall net contribution to that aspect of the objective, and in fact 
never even stated that there was such a contribution. 
2.65.  With regard to the Panel's conclusion concerning the measure as a whole, Norway echoes 
the concerns it raises in respect of the Panel's intermediate findings. As Norway argues, the Panel's contribution findings "are so beset with equivocation, vagueness, and imprecision that it is 
impossible to form an understanding  as to how the findings justify the overall conclusion that there 
is even ' some ' contribution, much less what the Panel itself considered to be the degree or extent 
of that contribution".
210 Norway adds that there is, therefore,  no basis for the Panel's finding that 
the EU Seal Regime makes a contribution to its public morals objective, and requests that the 
Panel's finding be reversed.211 
2.66.   Norway further argues that the fact that  a qualitative assessment is chosen does not mean 
that the specification of the extent of the contri bution may be vague and imprecise, as suggested 
by the European Union.212 Norway maintains that, despite the existence of qualitative assessments 
in Brazil – Retreaded Tyres  and US – Tuna II (Mexico) , the panels in both of those cases 
nevertheless offered detailed qualitative explanations in support of their findings that a 
contribution existed. 
2.2.1.2.2  Basis for a fi nding of contribution 
2.67.  Norway claims that the Panel also erre d in applying Article 2.2 of the TBT Agreement 
"to arrive at the conclusion that the measure makes 'some' net overall contribution to that 
objective".213 Norway focuses this aspect of its appeal on two features of the Panel's overall 
conclusion: (i) that the Panel undervalued the negative contribution of the permissive elements; 
and (ii) that it overvalued the positive contribu tion of the prohibitive elements. Norway considers 
that "neither the evidence before the Panel, nor its own findings, support the conclusion that the EU Seal regime makes a net overall positive contribution to the objective."
214 Norway considers 
that the Panel's errors constitute errors in the legal characterization of the facts, but also makes 
claims under Article 11 of the DSU with respect to  limited aspects of the Panel's assessment of the 
issue. 
2.68.  Norway identifies six points that it considers the Panel undervalued in assessing the 
negative contribution of the EU Seal Regime to the public morals objective. First, Norway refers to 
the Panel's conclusions that virtually all seal products from Greenland and the European Union are likely to be introduced on the EU market by virt ue of the IC and MRM exceptions, whereas the vast 
majority of Canadian and Norwegian seal products do not meet the requirements of either of these 
exceptions. Norway observes that these except ions "impose no animal welfare conditions 
whatsoever"
215, and recalls the Panel's finding that seal products may be sold on the EU market 
under the IC and MRM exceptions "regardless of wh ether they derive from seals killed humanely" 
and without any quantitative limits.216  
2.69.  Second, Norway takes note of the Panel's conclusion that EU public moral concerns 
regarding seal welfare appear to be related to seal hunts in general, not to particular types of seal 
hunts. Although the European Union had argued that  certain interests prevailed over concerns in 
respect of seal welfare, Norway claims that the Panel rejected this argument because it was unsupported by the evidence of record on the scope and content of the relevant public moral.
217 
                                               
210 Norway's appellant's submission, para. 315. (emphasis original) 
211 Norway's appellant's submission, para. 315.  
212 Norway's opening statemen t at the oral hearing. 
213 Norway's appellant's submission, para. 316. 
214 Norway's appellant's submission, para. 317. 
215 Norway's appellant's submission, para. 325. 
216 Norway's appellant's submission, para. 325 (quoting Panel Reports, para. 7.447). 
217 Norway's appellant's submission, para. 333 (referring to Panel Reports, para. 7.442). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Thus, Norway argues, "the moral standard found by the Panel applies to the IC and [M]RM hunts 
conducted in Greenland and the European Union as much as it does to other seal hunts."218 
2.70.  Third, Norway criticizes the Panel for faili ng to make an assessment of the animal welfare 
risks presented by the Greenlandic hunt in relati on to the banned hunts. Norway points to the 
Panel's conclusions that "the use of rifles from boats in 'open water hunting' or trapping and 
netting appear to be the main hunting methods for Greenlandic Inuit", and that those hunting methods contribute to seal welfare concerns.
219 Norway also points to differences in compliance 
monitoring efforts as between Greenland, and Canada and Norway. Norway argues that the Panel, 
however, "failed to make any assessment of the an imal welfare risks presented by the Greenlandic 
hunt in relation to the banned hunts".220 
2.71.  Fourth, Norway points to Panel findings and record evidence that, in its view, support the 
conclusion that the EU Seal Regime would lead to the substitution of Greenlandic seal products for 
imports previously derived from commercial hunt s in Canada and Norway. Norway argues that 
these Panel findings and record evidence demonstrate that Greenlandic trade could by itself satisfy 
EU demand.221 Norway further argues that the data relied on by the European Union to show levels 
of Canadian imports into the European Union were overstated because they also include transit goods that do not enter the EU market.
222 
2.72.  Fifth, Norway argues that the Panel wron gly concluded that indigenous communities have 
not been able to benefit from the IC exception, a factor that the Panel considered to limit the negative impact of the exceptions. Norway asserts that the Panel's finding was "disingenuous"
223 
because no Greenlandic imports were possible under  the IC exception until a Greenlandic body to 
certify imports was recognized in April 2013, four days before the second Panel meeting.224 
Norway argues that the Panel's conclusion demons trates a selective treatment of the evidence and 
a failure to refer to or reconcile its findings, in violation of Article 11 of the DSU.  
2.73.  Sixth, Norway accuses the Panel of failing to assess the impact of the implicit exceptions 
under the EU Seal Regime. Norway contends that, despite the fact that the Panel's findings demonstrate that the implicit exceptions have commercial importance, and thus make an 
important negative contribution to countering the measure's objective, its significance "is nowhere 
properly taken into account or characterized by the Panel in arriving at its overall conclusion".
225 
2.74.  In addition, Norway asserts two errors of the Panel that demonstrate its overvaluing of the 
positive contribution of the EU Seal Regime to th e public morals objective. First, Norway considers 
that the Panel committed a "recurring error" by failing properly "to characterize the consequences 
of the explicit and implicit 'exceptions' for the capa bility of the 'ban' to make an overall net positive 
contribution".226 Norway asserts that the Panel failed to reconcile the effects of the prohibitive and 
permissive aspects of the measure, and that it is impossible to understand on this basis how and 
why the Panel concluded that there is a net positive contribution to the measure's objective. Moreover, Norway asserts that, in terms of Articl e 11 of the DSU, "the imprecision of the Panel's 
analysis means that the Panel provide[d] an inadequate statement on how it weighed , balanced , 
and reconciled  the competing evidence of positive and negative contributions".
227 Norway adds 
that, "[a]s the Panel failed to explain and reconcile the evidence in arriving at its conclusion, including in making its intermediate factual findings, there is no objective basis to comprehend 
how it arrived at its net overall conclusion".
228 This, Norway contends, demonstrates a lack of 
objectivity by the Panel, in violation of Article 11 of the DSU. 
                                               
218 Norway's appellant's submission, para. 334. 
219 Norway's appellant's submission, para. 337 (quoting Panel Reports, para. 7.268). 
220 Norway's appellant's submission, para. 344. 
221 Norway's appellant's submission, para. 356 (referring to Panel Reports, para. 7.315, in turn referring 
to COWI, Study on implementing measures for trade in seal products , Final Report (January 2010) (Panel 
Exhibit JE-21) (COWI 2010 Report), p. 84). 
222 Norway's opening statemen t at the oral hearing. 
223 Norway's appellant's submission, para. 363. 
224 Norway's appellant's submission, para. 365 (referring to Panel Reports, fn 220 to para. 7.164). 
225 Norway's appellant's submission, para. 374. 
226 Norway's appellant's submission, para. 376. 
227 Norway's appellant's submission, para. 415. (emphasis original) 
228 Norway's appellant's submission, para. 418. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.75.  Second, Norway maintains that the Panel erroneously found that the ban reduces demand 
for seal products within the European Union and globally. With respect to the decline in demand within the European Union, Norway contends that "[t]he Panel did not identify any features of the measure, by design or otherwise", that affect the demand for seal products.
229 In Norway's view, 
the exceptions of the EU Seal Regime will ensure "sufficient quantities of seal products … in the 
EU market to meet the entirety of EU demand".230 Norway also contends that the reasons given by 
the Panel for finding that the direct impact of  the ban is a reduction of demand within the 
European Union "do not withstand scrutiny".231 Norway further asserts that, in terms of Article 11 
of the DSU, the Panel failed to substantiate its findings and engaged in selective treatment of the evidence demonstrating a lack of objectivity. Moreover, Norway argues that the Panel relied for its conclusion on trade data that do not pertain to EU or global demand, and that the Panel itself 
stated did not provide it with a basis to reach concrete conclusions. Accordingly, Norway argues, 
the Panel's findings lack objectivity. 
2.2.1.2.3  Other issues regarding contribution 
2.76.  Norway further contends that the Panel acted inconsistently with Article 11 of the DSU when 
it failed to address Norway's claim that the so-called "non-profit", "non-systematic", and "sole purpose" conditions of the MRM exception are unnecessary to the achievement of the seal welfare 
considerations underlying the public moral concerns found by the Panel, or to the achievement of 
sustainable resource management. As Norway argues, these three conditions "establish a barrier to trade in seal products from Norway"
232 and thus form a critical part of Norway's claim under 
Article 2.2 of the TBT Agreement. Norway maintains that, "[b]y completely ignoring  this element 
of Norway's claim", the Panel failed in  its duty under Article 11 of the DSU.233 
2.77.  Finally, Norway contends that the Panel failed to address "arbitrary or unjustifiable 
discrimination" in its analysis of whether the EU Seal Regime is more trade restrictive than 
necessary under Article 2.2. Norway contends that  the sixth recital of the TBT Agreement reflects 
that WTO Members "have consciously carried over the qualifications in the chapeau to the disciplines that regulate technical regulations".
234 Norway adds that, because the Appellate Body 
previously found relevant contextual support in the sixth recital for its interpretation of Article 2.2, 
to "give effect to this context", a panel must as sess whether there is "arbitrary or unjustifiable 
discrimination", in the pursuit of the justifying objective, in determining whether trade restrictions are necessary to fulfil an objective.
235 Norway claims that the Panel erred in its interpretation and 
application of the legal standard under Article 2.2 of the TBT Agreement, and, by failing to address 
Norway's arguments in this regard, acted inconsistently with its duty under Article 11 of the DSU. 
2.2.1.3  The Panel's analysis of the alternative measure 
2.78.  Norway then addresses the Panel's analysis of the proposed alternative measure. Norway 
claims that, although the Panel identified the corre ct question in examining the contribution of a 
less trade-restrictive alternative measure, the Panel erred by "focus[ing] on whether the 
alternative could fulfil completely  the identified objective, as if the contested measure being 
compared against the alternat ive were a comprehensive ban ".236 Norway contends that the Panel 
thus erred by holding the alternative measure up to a benchmark level of contribution that was higher than the contribution achieved by the EU Seal Regime. This error, Norway argues, 
compromised the Panel's analysis of whether the contribution of the alternative was equal to or 
greater than the level actually achieved by the EU Seal Regime, and of whether the alternative 
was reasonably available.  
2.79.  Norway considers that the Panel's assessm ent is erroneously premised on a requirement 
that the less-trade-restrictive alternative effectiv ely prevents exposure to products from seals 
killed inhumanely. Norway finds evidence of the Pane l's error in its conclusion that, even if market 
                                               
229 Norway's appellant's submission, para. 381. 
230 Norway's appellant's submission, para. 382. 
231 Norway's appellant's submission, para. 384. 
232 Norway's appellant's submission, para. 507. 
233 Norway's appellant's submission, para. 508. (emphasis original) 
234 Norway's appellant's submission, para. 534. 
235 Norway's appellant's submission, para. 542.  
236 Norway's appellant's submission, para. 583. (emphasis original) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  access were limited to seal products that meet animal welfare requirements, those seal products 
"would originate in hunts that may have caused poor animal welfare outcomes for some other number of seals".
237 Norway contends that the "logical implication" of this rationale is that "the 
current EU Seal Regime performs better than the alternative  in this respect".238 According to 
Norway, the IC and MRM exceptions allow the market ing of seal products irrespective of animal 
welfare considerations, and admit seal products from seal hunts, such as the Greenlandic hunt, that permit and commonly use inhumane killing methods, such as netting. Norway thus argues 
that "unlimited quantities of seal products are already  admitted to the EU market" from hunts that 
have caused poor animal welfare outcomes.
239 In Norway's view, an alternative that conditions 
EU market access on a requirement that seal products be derived from seal hunts applying strict animal welfare requirements "can only be an im provement" on the EU Seal Regime, since it has 
exceptions that admit seal products regardless of animal welfare outcomes.  
2.80.  Norway also considers that the Panel similarly erred in its statement that the alternative 
may "have the consequence of subjecting a greate r number of seals to the animal welfare risks 
incidental to seal hunting".
240 In doing so, the Panel relied on a report that rejected a proposed 
amendment during the legislative process on th e grounds that it did not meet EU citizens' 
demands to end the trade in seal products.241 As Norway argues, the Panel overlooked its own 
findings since the EU Seal Regime focused not on ending the trade in seal products, but rather on 
addressing concerns about the welfare of seals. No rway considers that the Panel's approach "holds 
the alternative measure up to a standard of contribution that is much higher than that actually achieved by the EU Seal Regime".
242 
2.81.  With respect to the availability of the al ternative measure, Norway argues that the Panel 
erred by considering the feasibility of an alternative measure that would completely fulfil the objective at issue. Norway points to the Panel's consideration of the level of stringency required 
from animal welfare standards "in order to genuinely assuage  [animal welfare] concerns".
243 
In Norway's view, the Panel's findings on the contribution of the EU Seal Regime show that the measure at issue does not genuinely assuage animal welfare concerns, because consumers are 
exposed to unlabelled seal products imported unde r the IC and MRM exceptions. By way of further 
example, Norway considers that the Panel's assertion that stringent animal welfare standards are not a reasonably available alternative because stringent standards might not be met relies on an inappropriate benchmark. In Norway's view, "animal welfare requirements are already not being 
met in the IC and [M]RM hunts".
244 According to Norway, "the proposed alternative actually 
imposes animal welfare requirements, whereas the measure imposes none."245 Norway points to 
other errors it argues the Panel made in respec t of certification, labelling, and costs. Norway, 
moreover, criticizes the Panel for its reliance on EC – Asbestos  for the proposition that a 
responding Member cannot be expected to employ an alternative measure that involves a continuation of the risk that the challenged measure seeks to halt.
246 In Norway's view, this 
reliance by the Panel was misplaced, because the EU  Seal Regime itself "does not even 'seek to 
halt' the animal welfare risks associated with seal hunting", given that it admits seal products under the IC and MRM exceptions. 
2.82.  Finally, Norway submits that the Panel misapplied WTO jurisprudence, in particular by 
indicating that the significance of costs and tech nical difficulties relates to those borne by WTO 
Members, not industry. Norway argues that efficien t suppliers will have an incentive to meet any 
costs they bear, because they still are permitted to  trade. In Norway's view, "compliance costs do 
not make the measure less 'reasonably available' to the regulating Member , since the cost of 
                                               
237 Norway's appellant's submission, para. 593 (quoting Panel Reports, para. 7.480). 
238 Norway's appellant's submission, para. 593. (emphasis original) 
239 Norway's appellant's submission, para. 594. (emphasis original) 
240 Norway's appellant's submission, para. 596 (quoting Panel Reports, para. 7.482). 
241 See Panel Reports, fn 772 to para. 7.482 (referring to Parliament Report, Justification for 
Amendment, p. 21). 
242 Norway's appellant's submission, para. 596. 
243 Norway's appellant's submission, para. 601 (quoti ng Panel Reports, para. 7.496). (emphasis added 
by Norway) 
244 Norway's appellant's submission, para. 602 (refe rring to Panel Reports, para. 7.496). (emphasis 
original) 
245 Norway's appellant's submission, para. 603. (emphasis original)  
246 Norway's appellant's submission, para. 611 (referring to Panel Report, EC – Asbestos , para. 7.502). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  compliance could be borne by industry."247 Moreover, Norway contends that the Panel 
"fundamentally misunderstood" the relevance of costs and technical difficulties addressed by the Appellate Body in Brazil – Retreaded Tyres  and US – Gambling  and, in doing so, "laid down an 
improper standard for less-restrictive alternatives to meet".
248 In Norway's view, it is clear from 
these decisions that the Appellate Body "was addressing the relevance of costs and technical 
difficulties that would be borne by the responding Member  under a proposed alternative measure", 
and "was not addressing the cost to be borne by industry".249 
2.83.  Norway further submits that the Panel acted in violation of Article 11 of the DSU by ignoring 
two further alternative measures it had proposed du ring the course of the Panel proceedings. First, 
Norway proposed an alternative that consisted of the removal of the restrictive conditions of the EU Seal Regime. Under this alternative, trad e would be permitted from hunts that, under the 
measure at issue, "could not meet the conditions for market access under the IC, [M]RM or 
Travellers 'exceptions'".
250 The second alternative was the removal of three contested conditions 
for access to the MRM exception – namely, the "not-for-profit", "non-systematic", and "sole 
purpose" conditions – leaving all the other el ements of the EU Seal Regime undisturbed.251 In 
Norway's view, "this alternative could include animal welfare, certification, and labelling requirements on seal products that meet the two remaining [M]RM conditions".
252 According to 
Norway, "these alternatives were completely ignored  by the Panel".253 Norway contends that the 
Panel's failure to address the second alternative was "egregious" since the three conditions were found to restrict access to the EU market.
254 Norway asserts that "the Panel's failure to assess 
whether Norway's proposed alternative – which excludes these three restrictive conditions, but 
adds animal welfare requirements and labelling – could make an equivalent contribution to the 
public morals objective is manifestly inadequate."255 
2.2.1.4  Request for completion of the analysis 
2.84.  Finally, Norway requests, if the Appellate Body reverses the Panel's finding that the EU Seal 
Regime is not inconsistent with Article 2.2 of the TBT Agreement, that the Appellate Body complete the legal analysis. Norway explains that "there may not be a sufficient basis in the Panel 
findings and record to complete the analysis on all aspects of Norway's claim".
256 Norway thus 
requests that the Appellate Body make "limited findings" in relation to the objectives of the EU Seal Regime and the legitimacy of the objectives, as well as a "narrow finding" of inconsistency in relation to certain conditions for market access under the MRM exception.
257 
2.85.  Norway requests the Appellate Body to complete the legal analysis in relation to three 
specific points. First, Norway requests the Appellate  Body to find that, in addition to addressing 
EU public moral concerns regarding seal welfare, the EU Seal Regime also includes two additional 
objectives: protecting IC interests, and promoting marine resource management.258 Second, 
Norway requests the Appellate Body to find that the MRM objective is legitimate, although it does not request completion as to whether the objective of protecting IC interests is legitimate.
259  
Third, Norway requests the Appellate Body to find that the EU Seal Regime is more trade 
                                               
247 Norway's appellant's submission, para. 614. (emphasis original) 
248 Norway's appellant's submission, para. 614. 
249 Norway's appellant's submission, para. 616. (emphasis original) 
250 Norway's appellant's submission, para. 621 (referring to Norway's first written submission to the 
Panel, paras. 776-778). 
251 Norway's appellant's submission, para. 622 (referring to Norway's first written submission to the 
Panel, paras. 782 and 912-917; opening statement at the first Panel meeting, para. 138; second written submission to the Panel, paras. 313-315; opening statem ent at the second Panel meeting, paras. 70-77; and 
response to Panel question No. 114, para. 81). 
252 Norway's appellant's submission, para. 622 (referring to Norway's opening statement at the second 
Panel meeting, para. 77; and responses to Panel ques tion No. 114, para. 81, and Panel question No. 145, 
fn 204 to para. 214). 
253 Norway's appellant's submission, para. 623. (emphasis original) 
254 Norway's appellant's submission, para. 624. 
255 Norway's appellant's submission, para. 625. 
256 Norway's appellant's submission, para. 632. (emphasis original) 
257 Norway's appellant's submission, para. 632. 
258 Norway's appellant's submission, paras. 641-671. 
259 Norway's appellant's submission, paras. 672-680. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  restrictive than necessary by virtue of three contested conditions of the MRM exception: namely, 
the "not-for-profit", "non-systematic", and "sole purpose" conditions.260 
2.2.2  Article XX of the GATT 1994 2.2.2.1  Aspects of the measure to  be justified under Article XX(a) 
2.86.  Norway asserts that the Panel identified two precise aspects of the EU Seal Regime that 
violated the substantive provisions of the GATT 1994, namely, the IC exception and the 
MRM exception. According to Norway, although th e Panel purported to agree with the parties and 
the relevant WTO jurisprudence that it is these "specific provisions"
261 – i.e. the IC and 
MRM exceptions found to be GATT-inconsistent – that have to be provisionally justified under 
Article XX(a), the Panel departed from this approach by expressly finding that " the EU Seal Regime  
can be provisionally deemed 'necessary' within the meaning of Article XX(a)."262 Norway highlights 
that the Panel sought to draw a distinction betwee n "justifying" the IC and MRM exceptions, on the 
one hand, and "considering" or "analysing" the EU Se al R e g ime  as  "a whole " in the  proc e s s  of 
"justifying" the IC and MRM exceptions, on the other hand.263 Norway does not consider such 
distinction objectionable to the limited extent th e Panel "consider[ed]" and "analy[sed]" the "ban" 
aspect of the EU Seal Regime to "better underst and[]" the IC and MRM exceptions, all with the 
ultimate aim of assessing the provisional justification of these exceptions.264 However, Norway 
points out that the Panel instead assessed and found the EU Seal Regime "as a whole" to be 
provisionally justified on the basis of the positive contribution of the ban, which allowed the Panel to "mask" and "overcome" the negative contribution of the exceptions.
265 In this way, the Panel's 
consideration of the ban went well beyond "better understanding"266 the exceptions, as it allowed 
aspects of the EU Seal Regime found to be WTO-consistent (i.e. the ban) to "shield from scrutiny" 
under Article XX(a) those aspects of the measure found to be WTO-inconsistent (i.e. the exceptions).
267  
2.87.  Norway makes three arguments in support of its position. First, Norway refers to the 
GATT Panel report in US – Section 337 Tariff Act  and the Appellate Body reports in Thailand – 
Cigarettes (Philippines)  and US – Gasoline  to show "consistent" GATT and WTO jurisprudence that 
it is the "particular aspect of the measure found to be inconsistent that must be justified under 
Article XX".268 With respect to US – Section 337 Tariff Act , Norway recalls that the GATT panel 
found that "the part of the measure found to be inconsistent with GATT obligations is the part that must be justified".
269 The panel noted that, otherwise, contracting parties could introduce 
GATT-inconsistent provisions that are not "necessary", simply by making them part of a measure 
that contained other elements that are "necessary".270 Norway considers that this approach  
was affirmed by the Appellate Body in Thailand – Cigarettes (Philippines)  when it observed that, 
"when Article XX(d) is invoked to justify an inconsistency with Article III:4, what must be shown to 
be 'necessary' is the treatment giving rise to discrimination".271 Finally, with respect to  
US – Gasoline , Norway notes that only the WTO-inconsistent part of the measure at issue in that 
case – i.e. the "baseline establishment rules"  – were found by the Appellate Body to be 
provisionally justified under Article XX(g).272 Norway maintains that, in that dispute, "[t]he 
WTO-consistent non-degradation requirements were treated merely as 'context' for understanding  
whether the WTO-inconsistent baseline establishmen t rules were 'related to' conservation" within 
                                               
260 Norway's appellant's submission, paras. 681-746. 
261 Norway's appellant's submission, para. 787. 
262 Norway's appellant's submission, para. 788 (quoti ng Panel Reports, para. 7.639). (emphasis added 
by Norway) 
263 Norway's appellant's submission, para. 792 (referring to Panel Reports, paras. 7.618 and 7.624). 
264 Norway's appellant's submission, paras. 793 and 794. 
265 Norway's appellant's submission, para. 795. 
266 Norway's appellant's submission, para. 794. 
267 Norway's appellant's submission, para. 795. 
268 Norway's appellant's submission, para. 823.  
269 Norway's appellant's submission, para. 806 (referring to GATT Panel Report, US – Section 337 Tariff 
Act, para. 5.27). 
270 Norway's appellant's submission, para. 806 (referring to GATT Panel Report, US – Section 337 Tariff 
Act, para. 5.27). 
271 Norway's appellant's submission, para. 809 (quoting Appellate Body Report, Thailand – Cigarettes 
(Philippines) , para. 177). 
272 Norway's appellant's submission, para. 818. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  the meaning of Article XX(g).273 In Norway's view, "although the Appellate Body considered the 
non-degradation requirements as context, it asse ssed, and found, that the baseline establishment 
rules were themselves provisionally justified."274 Norway submits that these cases establish that 
the WTO-consistent parts of a measure play a "limited role", and can do no more than "shed light" 
on understanding whether the WTO-inconsistent parts are justified under Article XX. 
2.88.  Second, Norway takes issue with the Panel's finding that "an exception to a general rule, by 
definition, would hardly be considered as 'necessa ry', when considered on its own, to achieve a 
policy objective of the general rule".275 Norway sees no reason why a properly characterized 
exception, even if found to be WTO-inconsistent, cannot be justified as "necessary" to achieve a policy objective as set out in one of these subparagraphs of Article XX, even if it is different from the objective of the measure as a whole. For ex ample, Norway suggests that the European Union 
could have sought to justify the MRM exception on the ground that they relate to the conservation 
of exhaustible natural resources. According to Norway, "an unnecessary WTO- inconsistent 
provision does not become necessary to achieve an objective, simply because the WTO- consistent  
provisions are necessary to achieve that objective."
276 If such a "flawed approach" were permitted, 
it would remove multilateral scrutiny of WTO-inconsistent provisions under Article XX only because they are formally characterized as "exceptions".
277 
2.89.  Norway argues that the Panel's reliance on its findings under the TBT Agreement to justify 
its approach under Article XX of the GATT 1994 was misplaced, because the Panel did not explain the precise relevance of these findings to the "distinct analysis" under Article XX.
278 Specifically, 
Norway challenges the Panel's reliance on its fi ndings under Article 2.2 of the TBT Agreement, 
because the subject matter of the examinations under Article 2.2 and Article XX(a) are different. 
Under Article 2.2, the Panel considered whether the technical regulation "as a whole" is more trade restrictive than necessary.
279 In so doing, the Panel weighed the positive contribution made by the 
ban against the negative contribution made by the explicit and implicit exceptions of the measure. 
By contrast, Norway submits that, under Article XX(a), the Panel was required to assess whether 
the "discriminatory IC and [M]RM 'exceptions' are 'necessary' to protect EU public morals", and 
therefore the necessity of the prohibitive ba n element and the contribution it makes are 
"irrelevant" to the analysis under Article XX(a).280 Since the Panel found that the IC and 
MRM exceptions are "rationally disconnected" from the public moral concerns, and undermine its achievement, the exceptions cannot be found to be necessary to protect public morals.
281 Norway 
requests the Appellate Body to reverse the Panel's finding that the EU Seal Regime, as a whole, 
should be provisionally justified under Article XX(a), and to complete the legal analysis to find that the IC and MRM exceptions cannot be provisionall y justified under Article XX(a) of the GATT 1994. 
Specifically, Norway argues that, since the Pane l found that the IC and MRM exceptions are not 
"rationally connected" to the objective of addressing the EU public moral concerns regarding seal welfare
282, and since the requirements under the two exceptions "counteract and prejudice" the 
achievement of the EU Seal Regime's objective283, the IC and MRM exceptions " could  never  
contribute, much less be 'necessary', to protect the public moral at issue".284  
                                               
273 Norway's appellant's submission, para. 818 (referring to Appellate Body Report, US – Gasoline , 
p. 19, DSR 1996:I, pp. 17-18). 
274 Norway's appellant's submission, para. 818. 
275 Norway's appellant's submission, para. 826 (quoting Panel Reports, para. 7.624). 
276 Norway's appellant's submission, para. 831. (emphasis original) 
277 Norway's appellant's submission, para. 833. 
278 Norway's appellant's submission, para. 835. 
279 Norway's appellant's submission, para. 857. (emphasis omitted) 
280 Norway's appellant's submission, para. 838. (emphasis omitted) 
281 Norway's appellant's submission, para. 839 (referring to Panel Reports, paras. 7.275 (IC exception) 
and 7.340 (MRM exception). 
282 Norway's appellant's submission, para. 845 (quoti ng Panel Reports, para. 7.340, and referring to 
para. 7.298). 
283 Norway's appellant's submission, para. 845 (referring to Panel Reports, paras. 7.447, 7.448, 7.451, 
7.452, 7.459, 7.460, and 7.638). 
284 Norway's appellant's submission, para. 848. (emphasis original) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.2.2.2  The Panel's analysis of "necessity" 
2.90.  In the event that the Appellate Body disa grees with Norway and finds that the Panel was 
correct in finding that it was the EU Seal Regime "as a whole" that should be provisionally justified as "necessary" under Article XX(a), Norway argues that the Panel erred in its finding that the 
EU Seal Regime contributes to the objective of protecting public morals regarding seal welfare.
285 
The Panel considered that only "the 'contribution' made by the ' ban' aspect of the measure needed 
to be ' material ', and that it was sufficient for the measure as a whole  to contribute to ' a certain 
extent ' to its objective of addressing EU public moral concerns".286 Norway highlights that, 
assuming that the Panel was correct in "considering the provisional justification of the measure as 
a whole (quod non), it was required to consider whether the contribution of the measure as a 
whole was 'material '".287 A "material" contribution is a "signi ficant degree of contribution that 
exceeds the minimal level of contribution reflected in the Panel's finding that there is contribution 
'to a certain extent '".288 Although the Panel referred to "materiality" as regards the "ban" aspect of 
the measure, it did not consider that "its task was to determine whether the measure as a whole 
made a 'material' contribution to [the protection of] public morals."289 
2.91.  Norway asserts that the Panel's findings "reflect error in the application of the proper legal 
standard under Article XX(a) for two reasons".290 First, the Panel's statement of the level of 
contribution of the EU Seal Regime lacks clarity and precision. The Panel's conclusion that the 
EU Seal Regime as a whole contributes to a "certain extent"291 to the protection of EU public 
morals lacks the "clarity and precision that is indispensable to a finding of contribution under the 'necessity' analysis in Article XX".
292 According to Norway, as with the analysis under Article 2.2 of 
the TBT Agreement, a "clear and precise" articulati on of the degree of contribution of the EU Seal 
Regime was required in order to establish whether the contribution meets the "required legal standard of contribution", reflected in the notion of "materiality", and to provide an "operable and 
objective benchmark" against which the contribution of Norway's less trade-restrictive alternative 
measures could be assessed.
293 
2.92.  Norway also contends that the factual find ings of the Panel do not support the conclusion 
that the EU Seal Regime "contributes either 'to a certain extent' – as the Panel found – or 
'materially' – as it was required to find under the proper legal standard".294 For the same reasons 
as its appeal with respect to the Panel's analysis  under Article 2.2 of the TBT Agreement, Norway 
asserts that the Panel both overvalued the positive contribution of the ban aspect of measure and 
undervalued the negative contribution made by the permissive aspects of the measure. For the 
same reasons as provided in its Article 2.2 appeal, Norway submits that the Panel's conclusion that the EU Seal Regime contributes "to a certain extent" to its objective "cannot be sustained".
295 
Moreover, as with its appeal under Article 2.2, Norway submits that the Panel's intermediate 
findings with respect to the contributions of the prohibitive and permissive aspects, as well as the 
overall contribution of the EU Seal Regime, are "not grounded in an objective assessment of the 
facts" and, therefore, are inconsistent with Article 11 of the DSU.296 For these reasons, Norway 
contends that "there is simply no basis for a finding that the EU Seal Regime makes a 'material' contribution to [the protection of] EU public morals."
297 
                                               
285 Norway's appellant's submission, para. 851. 
286 Norway's appellant's submission, para. 854 (referring to Panel Reports, paras. 7.635-7.638). 
(emphasis original) 
287 Norway's appellant's submission, para. 855 (refe rring to Panel Reports, para. 7.636). (emphasis 
original) 
288 Norway's appellant's submission, para. 856 (quoti ng Panel Reports, para. 7.638). (emphasis added 
by Norway) 
289 Norway's appellant's submission, para. 856. 
290 Norway's appellant's submission, para. 857. 
291 Norway's appellant's submission, para. 857 (quoting Panel Reports, para. 7.638). 
292 Norway's appellant's submission, para. 859. 
293 Norway's appellant's submission, para. 859. (emphasis omitted) 
294 Norway's appellant's submission, para. 857. 
295 Norway's appellant's submission, para. 863. 
296 Norway's appellant's submission, para. 864. 
297 Norway's appellant's submission, para. 865. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.93.  Norway notes that, having concluded that the EU Seal Regime contributed to "a certain 
extent" to its objective, the Panel recalled its "less trade-restrictive alternative" analysis under Article 2.2 of the TBT Agreement, wherein it conc luded that the alternative measure proposed by 
the complainants was not reasonably available to the European Union.
298 For the same reasons set 
out in its appeal under Article 2.2 of the TBT Ag reement, Norway asserts that the Panel erred: 
(i) in concluding that the less trade-restrictive alternatives proposed by Norway were not reasonably available; and (ii) in failing to make an objective assessment of the facts, as required 
by Article 11 of the DSU. 
2.2.2.3  The Panel's analysis under the chapeau of Article XX 2.94.  In the event that the Appellate Body disagr ees with Norway that the Panel was incorrect in 
determining whether the EU Seal Regime as a whole was justified under Article XX(a) of the 
GATT 1994, Norway argues that, al though it reached the correct conclusion, the Panel erred in the 
reasoning underpinning its finding that the EU Seal Regime is inconsistent with the requirements of the chapeau of Article XX. Specifically, Norway submits that the Panel erred in its analysis under 
the chapeau because it failed to: (i) articulate the relevant legal standards under the chapeau; and 
(ii) apply the proper standard to the IC and MRM exceptions. As to the Panel's failure to articulate the proper legal standard, Norway argues that th e Panel erroneously applied the same test under 
the chapeau that it had adopted to address the "legitimate regulatory distinction" under Article 2.1 
of the TBT Agreement. Although  the Appellate Body has explained that the GATT 1994 and the 
TBT Agreement are "similar", Norway asserts th at, "when seeking to understand how the legal 
standards under each Agreement are to be interprete d and applied, a panel must be faithful to the 
independence of the analysis to be conducted under each Agreement."
299  
2.95.  Moreover, the legal standard developed by  the Panel under Article 2.1 and applied by the 
Panel under the chapeau is contrary to the "wel l-accepted" jurisprudence on the requirements 
under the chapeau.300 According to Norway, WTO jurisprudence is clear that, in considering 
whether WTO-inconsistent provisions of a measure comply with the chapeau, "a panel must assess whether there is any discrimination that runs counter to, or is otherwise rationally disconnected 
from, the objective that the measure pursues under one of the sub-paragraphs of Article XX ."
301 
Norway adds that, if the rationale or reason for discrimination " goes against , or otherwise bears 
no rational relationship to, even to a small extent, the objective assessed under one of the 
sub-paragraphs , it is arbitrary and unjustifiable."302 Norway argues that, instead of applying this 
legal standard, the Panel erroneously applied its "three-step test" developed in the context of its 
"legitimate regulatory distinction" analys is under Article 2.1 of the TBT Agreement.303 Norway 
notes that "step 1" of the Panel's analysis under Article 2.1 – namely, that the regulatory 
distinctions drawn between commercial and IC/MRM hunts must be rationally connected to the 
objective of the EU Seal Regime – "bears some resemblance" to the legal test developed by the Appellate Body under the chapeau.
304  
2.96.  By contrast, Norway argues that "step 2" of the Panel's analysis under Article 2.1 – "which 
serve[d] for the Panel to justify a regulatory distinction in a measure that is rationally 
disconnected to the objective of the measure" – "represents a subversion of the structure of 
Article XX".305 Norway highlights that the Appellate Bo dy has "never allowed the discrimination 
under the chapeau to be justified by reference to an objective (cause or rationale) that had not 
provided the basis for provisional justification under one of the sub-paragraphs of Article XX".306 
Norway notes that, although the Panel rejected the European Union's argument that the IC and 
MRM exceptions were also provisionally justified under Article XX(a), rather than drawing the 
"obvious consequence" from the European Union's failure to secure provisional justification of the IC and MRM exceptions under one of the subparagrap hs of Article XX, the Panel's "step 2" analysis 
                                               
298 Norway's appellant's submission, para. 866 (quoting Panel Reports, para. 7.638). 
299 Norway's appellant's submission, para. 897 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 405). 
300 Norway's appellant's submission, para. 898. 
301 Norway's appellant's submission, para. 891. (emphasis original) 
302 Norway's appellant's submission, para. 891. (emphasis original) 
303 Norway's appellant's submission, para. 876 (referring to Panel Reports, paras. 7.649 and 7.650). 
304 Norway's appellant's submission, para. 904 (referring to Appellate Body Report, Brazil – Retreaded 
Tyres , para. 227). 
305 Norway's appellant's submission, para. 906. (emphasis original) 
306 Norway's appellant's submission, para. 911 WT/DS400/AB/R • WT/DS401/AB/R 
 
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  "simply excused the European Union from that burden ".307 Such an approach, in Norway's view, 
undermines the "interpretive harmony" between th e chapeau and the subparagraphs of Article XX, 
which requires that the discrimination be rationally connected " to the objective that provides the 
basis for provisional justification under a sub-paragraph ", since, under the chapeau analysis, a 
panel must "verify" whether the provisional justification under a given subparagraph of Article XX 
is "not lost because the Member seeks … 'abuse or  illegitimate use of the exceptions' to justify the 
WTO-inconsistent aspects".308 
2.97.  Turning to "step 3" of the Panel's analys is under Article 2.1, which sought to determine 
whether the discriminatory aspects of the measure are applied in an even-handed manner with regard to the additional cause or rationale used to "justify" it under "step 2", Norway submits that, although a panel may consider even-handedness with  respect to the pursuit of the objective found 
to be provisionally justified under a subparagraph of  Article XX, "there is simply no basis for the 
consequential third step of assessing whether this additional objective (cause or rationale) is 
pursued in an even-handed manner."
309 For these reasons, Norway asserts that the three-step test 
developed by the Panel under Article 2.1 of the TB T Agreement is "erroneous" in the context of the 
chapeau of Article XX of the GATT 1994.310  
2.98.  As a consequence of the erroneous legal standard adopted by the Panel for its Article XX 
analysis, Norway argues that the Panel erred in its reasoning as to why the IC and MRM exceptions 
do not meet the chapeau requirements. To the ex tent that Norway acknowledges the similarities 
between "step 1" of the Panel's analysis under  Article 2.1 and the legal standard under the 
chapeau of Article XX, Norway asserts that the Panel should have found that the distinction 
between the IC and MRM hunts, on the one hand, and the commercial hunts subject to the ban, on 
the other hand, was not rationally connected to the objective of the EU Seal Regime.311 For these 
reasons, Norway requests the Appellate Body to mo dify the Panel's reasoning and to find that the 
IC and MRM exceptions are not justified under th e chapeau of Article XX of the GATT 1994 for the 
aforementioned reasons.312 
2.3  Arguments of the European Union – Appellee 
2.3.1  Article 2.1 of the TBT Agreement 
2.99.  In response to Canada's argument th at the Panel articulated the wrong test under 
Article 2.1 of the TBT Agreement, the European Un ion argues that the Panel in fact conducted a 
proper two-step analysis. According to the Europe an Union, the Panel first examined whether the 
regulatory distinction between commercial and IC hunts was "'justifiable' in the abstract", "without 
looking into the particular features of the IC exception as contained in the EU Seal Regime".313 
Having found this to be the case, the Panel then turned to examine whether that regulatory 
distinction between commercial and IC hunts "was 'indeed' designed and applied in an 
even-handed manner and did not reflect discrimination".314 According to the European Union, the 
Panel thus sought to establish whether the objective or rationale pursued by the regulatory 
distinction was justifiable, and in that case, whether the measure at issue was designed and 
applied in an even-handed manner. The Europe an Union emphasizes that the Panel did not 
consider these two elements in isolation, but instead conducted an overall analysis as to whether the detrimental impact stemmed from a legitimate regulatory distinction. The European Union 
argues that the Panel did not err in structuring its analysis in this way. The European Union 
submits that the analysis of the rationale of a regulatory distinction "could be made in the abstract … or in the context of examining the design and application of the particular measure at 
issue".
315 For the European Union, "[t]he key point is that such an analysis of the alleged rationale 
                                               
307 Norway's appellant's submission, para. 913. (emphasis original) 
308 Norway's appellant's submission, paras. 917-922 (referring to Appellate Body Report, US – Gasoline , 
p. 25, DSR 1996:I, p. 23; and Panel Report, Brazil – Retreaded Tyres , para. 7.221). (emphasis original) 
309 Norway's appellant's submission, para. 926. (emphasis original) 
310 Norway's appellant's submission, para. 927. 
311 See Norway's appellant's submission, paras. 929-932 (referring to Panel Reports, paras. 7.274, 
7.275, and 7.337-7.339). 
312 Norway's appellant's submission, para. 934. 
313 European Union's appellee' s submission, para. 56.  
314 European Union's appellee' s submission, para. 57.  
315 European Union's appell ee's submission, para. 61. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  or justification must be conducted as part of the analysis."316 Thus, the European Union 
characterizes Canada's arguments as "formalistic and rigid".317 
2.100.  The European Union responds to Canada's appeal of the Panel's finding that the distinction 
between commercial and IC hunts is justifiable even  though the rationale of the distinction "goes 
against" the objective of the EU Seal Regime318 by highlighting the case-specific nature of the 
Panel's finding.319 The European Union submits that the Panel's conclusion is both legally correct 
and reasonable on substantive terms, given that "exceptions are precisely 'exceptions' because 
they go against the general rule".320 The European Union acknowledges that an exception "may 
pursue an objective that detracts from the main objective of the general rule in view of other legitimate regulatory concerns or rational explanations/justifications".
321 The European Union 
considers that, where a measure "clearly shows the weighing of opposing interests with the main 
objective", the regulatory distinction embodied in  the measure could be found to be non-arbitrary 
and justifiable "even if the exception under mines the main objective of the measure".322 The 
European Union notes that this view finds support in the Appellate Body report in US – Clove 
Cigarettes,  where the Appellate Body examined the ju stifications provided by the defending 
Member, even though it had already found that there was no rational connection between the objective of the measure at issue and the exception.
323 
2.101.  In response to Canada's argument that the Panel improperly relied on "international 
instruments extraneous to the case"324 to justify the distinction between IC and commercial hunts, 
the European Union recalls that the Panel did not rely only on the existence of international 
instruments recognizing the interests of indigenous peoples, but also found such recognition in the 
legislative history of the EU Seal Regime and in measures adopted by other WTO Members, 
including Canada.325 Moreover, the European Union submits that the Panel was referring to 
international instruments as "evidence" – in line with the practice of the Appellate Body – and not 
as instruments setting out legal obligations that would conflict with the WTO agreements.326 The 
European Union further argues that, in finding that the distinction between commercial and IC hunts was justifiable, the Panel took into account the balance between the protection of 
IC interests and the principal objective of the measure as reflected in the EU Seal Regime. 
According to the European Union, it was only logical for the Panel to assess the merits of 
protecting the interests of indigenous peoples by reference to international instruments. Finally, 
the European Union notes that the Appellate Body has recognized that a technical regulation may 
pursue several purposes, including purposes which are not listed in the sixth recital of the 
TBT Agreement.
327 
2.102.  With respect to Canada's allegation that the Panel failed to examine whether giving effect 
to the IC exception will actually fulfil the rational e of protecting Inuit interests, the European Union 
notes that, while the Panel found evidence that I nuit communities have been adversely affected by 
the EU Seal Regime as a whole, the Panel also found that Greenland was currently benefiting from 
the IC exception. According to the European Union,  this shows that the IC exception does serve to 
protect the interests of the Inuit communities engaged in seal hunting. The European Union further argues that, in any event, the opposition of some  Inuit communities to the EU Seal Regime does 
not demonstrate that the purpose of the IC exception, i.e. to protect IC interests, is not fulfilled by 
the regulatory distinction, given that, without the IC exception, seal products derived from 
IC hunts would fall under the general ban and would thus not be permitted to be placed on the EU market. The European Union acknowledges that Inuit sealing communities would be better off 
                                               
316 European Union's appellee' s submission, para. 61.  
317 European Union's appell ee's submission, para. 66. 
318 European Union's appellee's submission, para. 176 (referring to Canada's appellant's submission, 
paras. 78 and 79). 
319 European Union's appellee' s submission, para. 76.  
320 European Union's appell ee's submission, para. 79. 
321 European Union's appellee' s submission, para. 79.  
322 European Union's appellee' s submission, para. 80.  
323 European Union's appellee's submission, para . 82 (referring to Appellate Body Report, US – Clove 
Cigarettes , paras. 225 and 236).  
324 Canada's appellant's submissi on, heading B.a), at p. 27. 
325 European Union's appellee's submission, para. 88 (r eferring to Panel Reports, paras. 7.292-7.298). 
326 European Union's appellee's submis sion, para. 90 (referring, as exampl es, to Appellate Body Reports, 
US – Shrimp , para. 168; and US – Shrimp (Article 21.5 – Malaysia) , paras. 127 and 128).  
327 European Union's appellee's submission, para . 92 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 213).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  absent any regulation of the placing on the EU market of seal products; however, the IC exception 
seeks to mitigate the necessarily adverse impact of the EU Seal Regime on the Inuit and other indigenous communities.  
2.103.  The European Union submits that Canada's argument that the Panel focused its analysis of 
even-handedness on the wrong comparison and fa iled to examine the arbitrary aspects of the 
distinction between commercial and IC hunts is ba sed on a misreading of how the Panel conducted 
the analysis of whether the detrimental impact that it had found to exist stemmed from a 
legitimate regulatory distinction. As the European Union sees it, the Panel had already examined 
the arguments raised by Canada in the context of its analysis of whether the regulatory distinction 
is justified.
328 To the European Union, it appears logical that the Panel did not need to repeat the 
same analysis in the context of its assessment of  the even-handedness of the distinction. At the 
same time, the European Union recalls that, in its other appellant's submission, it expresses the 
view that the Panel misinterpreted and misa pplied Article 2.1 of the TBT Agreement when 
examining the even-handedness in the desi gn and application of the IC exception.329 According to 
the European Union, the Panel should have examin ed whether the IC exception under the EU Seal 
Regime was designed and applied in a reasonable, impartial, and harmonious manner, having regard to the objective it pursues.  
2.104.  With respect to Canada's argument that the distinction between commercial and Inuit 
hunts is "illusory" in the light of the strong commercial dimension of the Inuit hunt in Greenland, the European Union maintains that the extent of development of the commercial aspect in the marketing of by-products from Inuit communities in Greenland is irrelevant for assessing the 
even-handedness of the IC exception. The European Union submits that, as long as the relevant 
criteria to qualify as a legitimate indigenous subsistence activity are met and subsistence thus remains the primary objective of the hunts, the exte nt to which some of the by-products of these 
hunts are sold through commercial channels is irrelevant for assessing even-handedness. Hence, 
this does not show any arbitrariness in the de sign and application of the IC exception. The 
European Union also argues that the Panel did not find Greenland's hunt to be commercial in 
nature. Rather, the Panel found that, while the commercial aspect of seal hunting in Greenland has 
been developed to a degree that is comparable to that of commercial hunts, Greenland's hunts remain "subsistence"/IC hunts. The European Union underscores that seal hunts in Greenland are primarily conducted for subsistence purposes, "even if they may have a commercial aspect".
330  
2.105.  For the aforementioned reasons, the Europe an Union requests the Appellate Body to reject 
Canada's allegations that the Panel erred in its findings relating to Canada's claim under Article 2.1 of the TBT Agreement.
331 
2.106.  The European Union further submits that Canada's allegations of error under Article 11 of 
the DSU should be dismissed for several reasons. First, the European Union argues that Canada 
has failed to explain how the Panel's alleged failure to consider the evidence put forward by 
Canada affected the objectivity of the Panel's as sessment. Second, the European Union notes that 
the Panel summarized the arguments raised by Canada in the Panel Reports332, and that the Panel 
distinguished commercial and IC hunts on the basis of their "primary purpose".333 Third, the 
European Union submits that the alleged simila rities between Canada's east coast hunt and 
IC hunts are irrelevant. The European Union notes that Canada never contested that the majority 
of seal hunts conducted in Canada are commercial hunts with the sole or primary purpose of making a profit. Finally, the European Union recalls the Panel's finding that the type of the hunter 
(Inuit versus non-Inuit) is also relevant for the regulatory distinction at issue. According to the 
European Union, the similarities between commercial and IC hunts mentioned by Canada "are irrelevant insofar as the hunter in question does not belong to the Inuit or other indigenous 
communities".
334 
                                               
328 European Union's appellee's submission, para. 101 (referring to Panel Reports, paras. 7.256-7.300). 
329 European Union's appellee's submission, para. 102 (r eferring to European Union's other appellant's 
submission, section 4). 
330 European Union's appellee's submission, para. 104; see also fn 92 thereto. 
331 European Union's appellee's submission, para. 121. 
332 European Union's appellee's submission, para. 113 (referring to Panel Reports, paras. 7.226-7248). 
333 European Union's appellee's submission, para. 114.  
334 European Union's appellee's submission, para. 118.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.3.2  Article 2.2 of the TBT Agreement 
2.3.2.1  The Panel's identification of the objective of the EU Seal Regime 
2.107.  The European Union maintains that the Panel correctly found that the main objective of the 
EU Seal Regime is to address EU public moral concerns regarding seal welfare.335 The European 
Union explains that, as found by the Panel, the te xt of the Basic Regulation, its drafting history, 
and its design and structure, establish that the EU  Seal Regime was adopted in order to respond to 
EU public moral concerns regarding seal welfare. 
2.108.  The European Union agrees with the Panel's finding that the objectives of the IC exception 
and the MRM exception are not "independent" of the main objective of the EU Seal Regime.336 
Instead, they seek to accommodate other interests that the EU legislators deemed "morally superior to the welfare of seals in certain circumstances and under certain conditions" identified by 
the EU legislators.
337 By providing for such exceptions, the EU legislators were hence not 
undermining the public morals objective of the EU Seal Regime, "but instead giving effect to the 
basic moral standard that underlies the EU Seal Regime and, more generally, all EU legislation on 
animal welfare".338 The European Union adds that the scope  of the IC and MRM exceptions was, 
nevertheless, "carefully circumscribed, so as to preserve, to the extent possible, the contribution of the EU Seal Regime to the objective of improving the welfare of seals".
339 
2.109.  The European Union submits that, if the EU  legislators' objective had been "to protect the 
interests of the Inuit and other indigenous communities or the objective that Norway ascribes to the MRM exception, they would have refrained fr om adopting the EU Seal Regime in the first 
place".
340 According to the European Union, "[t]hose objectives would be best served by removing 
all restrictions to the marketing of seal products."341  
2.110.  The European Union further emphasizes that  "[t]he IC exception does not seek to promote 
exports of seal products by the Inuit and other indigenous communities, but rather to mitigate the 
necessary adverse effects of the EU Seal Regime on those communities to the extent compatible 
with the main objective of addressing the public moral concerns with regard to the welfare of seals."
342 According to the European Union, there is evidence of such adverse effects.343 The 
European Union further recalls that the IC exception was part of the Commission Proposal for a 
regulation concerning trade in seal products, and a similar exception is found in the European Council Directive concerning imports of certain seal pup skins and products
344 (EC Seal Pups 
Directive), in the national bans enacted by some EU member States prior to the EU Seal Regime, 
and in the measures banning trade in seal products adopted by other Members, both before and 
after the adoption of the EU Seal Regime.345 According to the European Union, this shows the 
existence of a "broad consensus" regarding the duty  to take into account the special needs of the 
Inuit and other indigenous communities.346 In all those legal instruments, however, the provisions 
in favour of the Inuit and other indigenous communities operate as "exceptions from the restrictions generally applied with regard to the marketing of seal products".
347 
                                               
335 European Union's appellee's submission, para. 138. 
336 European Union's appellee's submission, para. 140 (referring to Panel Reports, para. 7.402). 
337 European Union's appellee's submission, para. 140. 
338 European Union's appellee's submission, para. 140. 
339 European Union's appellee's submission, para. 140. 
340 European Union's appellee's submission, para. 141. 
341 European Union's appellee's submission, para. 141 (referring to Norway's appellant's submission, 
para. 621). 
342 European Union's appellee's submission, para. 142. 
343 European Union's appellee's submission, para. 142 (r eferring to Canadian Department of Fisheries 
and Oceans, Canadian Commercial Seal Harvest Overview 2011 , Statistical and econom ic analysis series 
(October 2012) (Panel Exhibit JE-27) (Canadian Seal Harvest Overview), Table 14; Greenland 2012 Seal Management Report, pp. 31-36, and Table 4, at p. 33; and Nunavut 2012 Report, p. 3). 
344 Council Directive No. 83/129 of 28 March 1983 concerning the importation into Member States of 
skins of certain seal pups and products derived therefrom, Official Journal of the European Communities , 
L Series, No. 91 (9 April 1983), pp. 30-31 (Panel Exhibit CDA-12). 
345 European Union's appellee's submission, para. 142. 
346 European Union's appellee's submission, para. 142. 
347 European Union's appellee's submission, para. 142. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 48 - 
 
  2.111.  The European Union further notes that, un like the IC exception, the MRM exception was 
not envisaged in the Commission Proposal. Nor is a similar exception provided for in the EC Seal Pups Directive or in any of the measures taken by the EU member States or other WTO Members in order to restrict trade in seal products. Instead, the MRM exception was introduced in the 
EU Seal Regime towards the end of the legislative process in response to the concerns raised by 
some EU member States with regard to small- scale hunts conducted exclusively for MRM purposes. 
The European Union further explained that "the MRM exception was subjected to strict conditions 
that define very narrowly its scope" in order to avoid creating a loophole allowing the marketing of 
products from large-scale commercial hunts.
348 The European Union adds that, in 2011, only 
96 seals qualified for the MRM exception. On this basis, the European Union does not agree with Norway that the objective pursued by the MRM exception would be more "prominent" than the 
objective of addressing EU public moral concerns regarding seal welfare.
349 
2.112.  For the European Union, although "it is in the nature of all exceptions to derogate from the 
general rule", this does not mean that, "for that  reason, the objective of the exception should be 
regarded as being equally important, or even mo re important, than the objective of the general 
rule."350 
2.113.  As a separate matter, the European Union argues that, having found that the objectives of 
the IC and MRM exceptions are not "independent" of the main objective of the EU Seal Regime, 
the Panel should have proceeded to find that both objectives are "rationally connected" because they stem from the same standard of morality.
351 In the European Union's view, it was 
"contradictory" for the Panel to maintain that the objective pursued by the IC exception is not 
"independent" of the public morals objective pursued by the EU Seal Regime and, at the same 
time, that the IC exception does not bear any "rational relationship" to that objective.352 Thus, in 
the event that the Appellate Body were to reject the European Union's other appeal concerning this 
aspect of the Panel's findings353, the European Union submits th at the Appellate Body should 
uphold Norway's claim that the Panel erred by fa iling to identify the objective pursued by the 
IC exception as one of the objectives of the EU Seal Regime to be examined under Article 2.2 of 
the TBT Agreement.354 The European Union explains in this regard that "the mere fact that the 
public morals objective is the 'main' objective of a measure does not have the implication that other, less important, but 'rationally disconnected' objectives of the same measure become irrelevant under Article 2.2 of the TBT Agreement."
355 Thus, on the assumption that the objective 
of the IC exception was not "rationally connected" to the public morals objective of the EU Seal 
Regime, it should, according to the European Union, have been identified by the Panel as a separate objective of the EU Seal Regime, albeit one of lesser importance than the public morals 
objective. 
2.3.2.2  The Panel's analysis of the contributi on of the EU Seal Regime to its objective 
2.114.  The European Union submits that Cana da's and Norway's arguments are "unfounded"
356, 
because the TBT Agreement does not prescribe the manner in which the contribution to the 
fulfilment of the measure's legitimate objective should be assessed, nor how specific that assessment should be.
357 The European Union argues that the Appellate Body in Brazil – Retreaded 
Tyres  clarified that there is no requirement to quan tify the contribution to the achievement of the 
measure's objective, and that panels may rely on a qualitative analysis.358 The European Union 
maintains that the Panel's analysis is in line with this guidance, and that, because the quantitative 
                                               
348 European Union's appellee's submission, para. 143. 
349 European Union's appell ee's submission, para. 143. 
350 European Union's appellee's submission, para. 144. 
351 European Union's appellee's submission, para. 145. 
352 European Union's appellee's submission, para. 145. 
353 European Union's appellee's submission, para. 146 (r eferring to European Union's Notice of Other 
Appeal, paras. 5-8). 
354 European Union's appellee's submission, para. 147. 
355 European Union's appellee's submission, para. 148. 
356 European Union's appellee's submission, para. 165. 
357 European Union's appellee's submission, para. 166. 
358 European Union's appellee's submission, paras. 167 and 168 (referring to Appellate Body Report, 
Brazil – Retreaded Tyres , paras. 145-147). WT/DS400/AB/R • WT/DS401/AB/R 
 
- 49 - 
 
  evidence available did not permit a precise quanti fication of the contribution, "the Panel had no 
alternative but to resort to qualitative reasoning."359  
2.115.  The European Union contends that the Pane l's findings were no less specific than those 
reached by other panels conducting a "necessity" test.360 The European Union further contends 
that the analysis by the Appellate Body in US – COOL  contradicts the position of the complainants 
in these disputes. In particular, the European Union refers to the Appellate Body's reliance on the fact that the measure in those disputes contributed to the objective "at least to some  degree".
361 
The European Union adds that, although the Appellate Body alluded to the panel's failure to specify 
the degree of contribution among the reasons that prevented it from completing the legal analysis, 
this was not the only obstacle cited by the Appe llate Body. According to the European Union, the 
Appellate Body's analysis in US – COOL  "shows that it is not possible to determine, in the abstract, 
whether a finding of contribution is sufficiently specific ", and that such a determination "can only 
be made taking into account the circumstances of each dispute".362 
2.116.  The European Union argues that the complainants' claim that the Panel's contribution 
finding was unsubstantiated is premised entirely on the contention that imports from Norway and 
Canada will be replaced by imports from Green land under the IC exception. As a preliminary 
matter, the European Union submits that the errors alleged by the complainants raise factual 
issues and should have been submitted under Ar ticle 11 of the DSU, and requests the Appellate 
Body to consider whether these claims should be examined as a legal characterization of the facts or under Article 11.
363  
2.117.  The European Union argues that the complainants' main piece of evidence – a statement 
by the Danish-based international consulting grou p COWI that "[t]he Greenlandic trade is more 
than enough to cover EU demand364 – "is not supported by any evidence or reasoning and it is not 
possible to know on what basis COWI came to that view".365 The European Union identifies other 
facts that, in its view, contradict the complainants' position: (i) the number of seals hunted in 
Canada and Norway has traditionally exceeded the number of catches in Greenland; (ii) unlike in Canada and Norway, a large part of the seal skin s in Greenland are consumed domestically rather 
than traded internationally; (iii) a large part of  the seal skins are exported from Greenland to 
markets outside the European Union; (iv) Greenland can also export seal skins under Inuit exceptions to seal product bans in other countries; (v) the assumption that global demand for seal products will remain unchanged at currently depressed levels; (vi) the IC exception is subject to 
conditions that constrain Greenland's ability to expand supply more than traditional levels; 
(vii) Greenland's supply capacity is declining; and (viii) Greenlandic export data show declining exports to the European Union.
366  
2.118.  The European Union contends that this evidence demonstrates that, due to depressed 
global demand and prices produced in part by the EU Seal Regime, imports from Greenland "have 
not even returned to their usual level" before seal product bans were first introduced in the 
European Union in 2007.367 The European Union also maintains that Norway's assertion that 
Greenland's supply of 80,000 seal skins per year can easily supply the European Union's average imports of 20,000 skins "is deeply flawed".
368 These data, the European Union argues, only cover 
tanned skins, whereas Canada's principal exports to the European Union consisted of raw skins. 
Noting that Canada exported more than 100,000 raw skins to the European Union in 2006, the 
                                               
359 European Union's appellee's submission, para. 170. 
360 European Union's appellee's submission, paras. 171-173 (referring to Appellate Body Reports, 
Brazil – Retreaded Tyres , paras. 136 and 137; US – Tuna II (Mexico) , para. 327; and US – Gambling , 
para. 301; each referring in turn to the respective Panel Reports, Brazil – Retreaded Tyres , para. 7.148; US – 
Tuna II (Mexico) , para. 7.563; and US – Gambling , para. 6.494). 
361 European Union's appellee's submission, para. 174 (quoting Appellate Body Reports, US – COOL , 
para. 473). (emphasis added by the European Union) 
362 European Union's appellee's submission, para. 175. (emphasis original) 
363 European Union's appellee's submission, para. 180.  
364 European Union's appellee's submission, para. 184 (quoting COWI 2010 Report, p. 84). 
365 European Union's appellee's submission, para. 184. 
366 European Union's appellee's submission, paras. 186-195. 
367 European Union's appellee's submission, para. 196. 
368 European Union's appellee's submission, para. 199. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 50 - 
 
  European Union asserts that Norway's own estimates show that "Greenland could not supply that 
volume on its own, even if it were to discontinue its exports to all other countries."369 
2.119.  The European Union also argues that th e evidence before the Panel supports the finding 
that the Inuit have been adversely affected by the EU Seal Regime and have not always been able 
to benefit from the IC exception. According to the European Union, the EU Seal Regime has a 
depressing effect on global prices and demand, including on seal products from the IC hunts, and "this negative impact is one of the main reasons why the Complainants' speculative allegations 
that imports from Greenland will simply replace imports into the European Union from Canada and 
Norway are unfounded."
370 The European Union also challenges as "thoroughly misguided" 
Norway's assertion that the only reason the indigenous communities have not been able to benefit from the IC exception, as the Panel found, was because Greenland did not have an established 
recognized body at the time of the Panel proceedings.
371 Noting that the Panel was "well aware 
that Greenland had benefitted effectively from the IC exception since 2010", the European Union argues that the Panel must be understood as refe rring to difficulties faced by Inuit and other 
indigenous communities in Canada, not Greenland.
372  
2.120.  The European Union submits that, contrary to the complainants' allegations, the evidence 
before the Panel supported the Panel's finding that  the EU Seal Regime contributes to reducing 
EU demand for seal products, as well as global demand. The European Union asserts that "[i]t is 
beyond dispute that the EU Seal Regime has effectively limited imports of seal products resulting from the commercial hunts in Canada and Norway."
373 Although the Panel found that the statistics 
are incomplete because they do not track separately all categories of seal products, the European 
Union considers that "this does not mean that those statistics are unreliable."374 The European 
Union thus considers that the Panel was correct in concluding that the statistics "show a general trend that seal product imports from the comp lainants into the EU Market have decreased 
significantly over the last few years".
375 The European Union again rejects the "speculative 
prediction" underlying the complainants' arguments that the EU Seal Regime does not contribute to reduce the demand for seal products within the EU market because imports from Canada and 
Norway will be replaced by imports from Greenland.
376  
2.121.  The European Union further maintains that , because EU demand for seal products is a 
component of the global demand for such products, reducing EU demand also contributes to reducing global demand. Accordingly, while othe r factors may contribute to reducing global 
demand, "the reduction in EU demand would still entail a reduction in potential  global demand."
377 
According to the European Union, this is supported by trade statistics that showed a decline in Canada's exports and a "precipitous reduction in the number of seals hunted".
378 The European 
Union moreover observes that Canada acknow ledged the "negative impacts" and "depressing 
effects" of the EU Seal Regime on the EU seal product market, and that the Panel found that a connection exists, even if it could not be precisel y quantified, between the EU Seal Regime and the 
number of seals hunted.
379 
2.122.  The European Union considers wrong on two counts the complainants' allegations that the 
Panel failed to establish any link between a reduction in global demand and the number of inhumanely killed seals. First, the European Union maintains that neither it nor the Panel ever 
sought, in referring to the "incidence of inhumane killing" of seals, to ascribe any meaning to that 
term other than that relating to the number of such inhumanely killed seals.
380 Second, the 
European Union argues that "the Panel was entitled to assume that a reduction in the number of 
                                               
369 European Union's appellee's submission, para. 199. 
370 European Union's appellee's submission, para. 205. 
371 European Union's appell ee's submission, para. 206. 
372 European Union's appellee's submission, para. 206 (referring to Panel Reports, para. 7.452). 
373 European Union's appellee's submission, para. 208. 
374 European Union's appellee's submission, para. 209 (referring to Norway's appellant's submission, 
para. 442). 
375 European Union's appellee's submission, pa ra. 209 (quoting Panel Reports, para. 7.456). 
376 European Union's appellee's submission, para. 212. 
377 European Union's appellee's submission, para. 214. (emphasis original) 
378 European Union's appell ee's submission, para. 219. 
379 European Union's appellee's submission, paras. 220 and 221, respectively. 
380 European Union's appellee's submission, para. 224 (referring to Canada's appellant's submission, 
para. 193). WT/DS400/AB/R • WT/DS401/AB/R 
 
- 51 - 
 
  seals killed would entail necessarily a reduction of the number of seals being killed inhumanely" on 
the basis of its factual findings regarding the welfare risks inherent in all seal hunts.381 
2.123.  The European Union also rebuts the compla inants' claims under Article 11 of the DSU. The 
European Union does not separately address most of these claims, as it considers them "largely 
duplicative of those previously made" by the complainants in their claims of error in the legal 
application of Article 2.2 of the TBT Agreement.382 With regard to Norway's claim that the Panel 
acted inconsistently with Article 11 of the DSU by  failing to examine the contribution of certain 
conditions of the MRM exception to meeting the EU public moral concerns regarding seal welfare, 
the European Union argues that "this claim is entirely dependent" on Norway's previous appeal of the Panel's finding that MRM interests are not an objective of the EU Seal Regime. The European Union adds that, by examining the contribution of the EU Seal Regime as a whole to the objective 
of addressing EU public moral concerns with re gard to seal welfare, the Panel "examined the 
contribution of the conditions attached to the MRM exception to that objective".
383 
2.124.  The European Union rejects Canada's contenti on that the Panel failed to assess the risks of 
non-fulfilment and to conduct a "relational" analysis before considering the proposed less 
trade-restrictive alternative. The European Union maintains that the Panel conducted its assessment of the risks of non-fulfilment at para graphs 7.465 and 7.466 of its Reports before 
proceeding to assess the less trade-restrictive alternative. The European Union contends that the 
comparison with a proposed less trade-restrictive alternative "is a more sophisticated and reliable conceptual tool for assessing the necessity of a measure in the light of the relevant weighing factors than the type of relational analysis" suggested by Canada.
384 Given that the Appellate Body 
stated in US – Tuna II (Mexico)  that a comparison with the proposed less trade-restrictive 
alternative is required in most cases, the European Union argues that panels are not required to make an explicit and motivated finding justif ying why they proceed to such a comparison.
385 The 
European Union adds that such a justification "is required only in the exceptional cases where a 
panel decides not to perform a comparison with the proposed [less trade-restrictive 
alternative]".386 
2.125.  The European Union also rejects Norway's argument that the Panel erred by failing to 
consider "arbitrary or unjustifiable discrimination" under Article 2.2. According to the European Union, Norway's interpretation has no basis in the text of Article 2.2 or in recent Appellate Body reports concerning Article 2.2.
387 The European Union further contends that the proviso in the last 
part of the sixth recital alludes to Article 2.1, but "does not justify reading the same requirement 
into Article 2.2".388 The European Union considers that Norway's interpretation would be 
"superfluous because it would prohibit what is already prohibited by Article 2.1".389 The 
European Union goes on to reject the distinction Norway draws between origin-based 
discrimination under Article 2.1 versus other types of discrimination captured under Article 2.2. As the European Union explains, Article 2.2 is designed to address measures "that are not 
discriminatory, but nevertheless create unnecessary obstacles to trade".
390 Moreover, the 
European Union explains, "if a measure found justified under Article 2.2 is applied in a discriminatory manner, such discriminatory application can be challenged under Article 2.1."
391 
                                               
381 European Union's appell ee's submission, para. 226. 
382 European Union's appellee's submission, para. 232. 
383 European Union's appellee's submission, para. 235. 
384 European Union's appellee's submission, para. 300. 
385 European Union's appellee's submission, paras. 300 and 302 (referring to Appellate Body Report, 
US – Tuna II (Mexico) , para. 322). 
386 European Union's appellee's submission, para. 302. (emphasis original) 
387 European Union's appellee's submission, para. 315 (referring to Appellate Body Reports, US – 
Tuna II (Mexico) ; US – COOL ; and US – Clove Cigarettes ). 
388 European Union's appellee's submission, para. 317.  
389 European Union's appellee's submission, para. 318. 
390 European Union's appellee's submission, para. 321. 
391 European Union's appellee's submission, para. 321. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 52 - 
 
  2.3.2.3  The Panel's analysis of the alternative measure 
2.126.  The European Union argues that the comp lainants' allegations that the Panel assessed the 
contribution made by the proposed less trade-restrictive alternative against the wrong benchmark "misrepresent the analysis conducte d by the Panel and are unfounded".
392 The European Union 
contends that the Panel did not ignore its findings regarding the exceptions, and that, even if it did 
not expressly repeat its findings with regard to the exceptions, "those findings are reflected in the Panel's overall assessment of the contribution".
393 The European Union maintains that, because the 
complainants failed to articulate a sufficiently precise less trade-restrictive alternative, the Panel 
"had to assess instead the degree of contribution and the reasonable availability of two distinct 
hypothetical regimes within the scope of the broad [less trade-restrictive alternative] proposed by 
the Complainants".394 The European Union recalls the Panel's conclusions that, while "more 
stringent regimes" would make a positive contribution to the objective, they were not "reasonably 
available"; by contrast, "more lenient regimes" we re "reasonably available", but would "call into 
question the degree to which the alternative meas ure can contribute to the welfare of seals".395  
2.127.  The European Union maintains that, although  the complainants sought to establish that a 
more lenient regime was possible, they "failed to specify the content of such a 'more lenient 
regime' before the Panel, let alone provide any me aningful assessment of its contribution to the 
measure's objective".396 The European Union adds that, although the Panel could have dismissed 
the claim on that basis alone, it "made considerable efforts to examine the degree of contribution and reasonable availability of different hypothetical regimes spanned by the broad [less trade-restrictive alternative] proposed".
397 The European Union rejects as "unsupported speculation" the 
complainants' claims that the negative impact descr ibed by the Panel would be offset by the fact 
that seal products currently covered by the IC ex ception would be excluded from the EU market by 
virtue of a more lenient regime.398 The European Union adds that much would depend on the 
specific welfare requirements and certification methods of the more lenient regime, but that the 
complainants failed to specify any such requirements and methods before the Panel. 
2.128.  The European Union also addresses the complainants' claim that the Panel improperly 
relied on dictum from EC – Asbestos . The European Union argues that the quoted language 
"reflects the basic and undisputed principle that , both under Article XX of the GATT and under 
Article 2.2 of the TBT Agreement, the proposed [le ss trade-restrictive alternative] must achieve at 
least the same degree of contribution as the challenged measure".399 The European Union further 
argues that "[t]he mere fact that the measure at issue in EC – Asbestos  provided for a more 
comprehensive ban on trade in the product concerned than the EU Seal Regime is wholly immaterial."
400 What matters, the European Union adds, "is that in both cases the defending 
Member cannot be forced to adopt alternative measures that would fail to achieve the same 
degree of contribution to its objective".401  
2.129.  The European Union rejects Canada's claim that the Panel failed to take into account 
certain measures applied by the European Union in other areas in its analysis. The European Union 
argues that Korea – Various Measures of Beef  does not support such a comparison if it does not 
address behaviour of the same kind for like or at least similar products.402 According to the 
European Union, the Panel recognized that "seal hunting gives rise to specific welfare risks".403 The 
European Union also maintains that, "even if the Panel had found that the welfare risks of seal 
hunting were sufficiently similar" to other situatio ns, "the European Union would still have been 
                                               
392 European Union's appell ee's submission, para. 245. 
393 European Union's appellee's submission, para. 249. 
394 European Union's appellee's submission, para. 260. 
395 European Union's appellee's submission, para. 260. 
396 European Union's appellee's submission, para. 261. 
397 European Union's appell ee's submission, para. 261. 
398 European Union's appellee's submission, para. 265. 
399 European Union's appellee's submission, para. 269 (referring to Appellate Body Report, EC – 
Asbestos , para. 174). 
400 European Union's appellee's submission, para. 269. 
401 European Union's appellee's submission, para. 269. 
402 European Union's appellee's submission, paras. 270-272 (referring to Appellate Body Report, Korea – 
Various Measures on Beef , para. 172; and Canada's appellant's submission, paras. 278-290). 
403 European Union's appellee's submission, para. 273. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  entitled to apply different measures with regard to seal products".404 The European Union adds 
that the objective "pursued by the EU Seal Regime is to address public moral concerns with regard to the welfare of seals, rather than protecting the welfare of seals as such."
405 
2.130.  The European Union also takes issue with the argument by the complainants that Brazil – 
Retreaded Tyres  requires that consideration of any "prohibitive costs or substantial technical 
difficulties" must be those borne by the Member.406 According to the European Union, that dispute 
simply identifies an example of a situation wher e the proposed less trade-restrictive alternative 
would not be reasonably available, and there "can be other circumstances where a measure would 
not be available because it would be 'merely theoretical in nature'".407 The European Union refers 
to the Panel's various findings regarding the ch allenges presented by a "more stringent regime".408 
The European Union also notes that, despite the Panel's conclusion regarding the greater 
expenditure and practical challenges of implementa tion, the costs of such a regime was "just one 
of the obstacles mentioned by the Panel and, by no means, the most important".409 
2.131.  The European Union disagrees with Canada that the Panel failed to make an objective 
assessment under Article 11 of the DSU by finding that the less trade-restrictive alternative could 
result in an increase in the number of inhumanely killed seals. The European Union contends that the Panel's finding "can be reasonably inferred from the Panel's findings regarding the inevitability 
of certain risks of inhumane killing arising from the conditions and circumstances of the seal 
hunts".
410 
2.132.  The European Union also rejects Norway's argument that the Panel committed a violation 
of Article 11 of the DSU by failing to address two other less trade-restrictive alternatives put 
forward by Norway. The European Union notes that one of these proposed less trade-restrictive 
alternatives consisted of removing all of the re quirements of the EU Seal Regime, and "amounted 
effectively to repealing the EU Seal Regime".411 Because Norway's proposal was premised on the 
assumption that the EU Seal Regime made no contribution to its objective, the European Union 
argues that the Panel implicitly rejected this claim. The European Union notes that the other less trade-restrictive alternative put forward by Norway  was the removal of three conditions attached 
to the MRM exception (the "not-for-profit", "non-s ystematic", and "sole purpose" conditions). The 
European Union argues that, although the Panel did not expressly address this proposal, it is 
clearly implicit in the Panel's reasoning and findings that this less trade-restrictive alternative would also fail to make an equivalent contribution to the measure's objective. 
2.133.  For the above reasons, the European Union requests the Appellate Body to reject the 
claims raised by Canada and Norway under Articl e 2.2 of the TBT Agreement with regard to the 
contribution made by the EU Seal Regime to it objective and the Panel's analysis of the proposed 
less trade-restrictive alternatives.
412 The European Union further requests the Appellate Body to 
uphold the Panel's finding that the EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement.
413 
                                               
404 European Union's appellee's submission, para. 276. 
405 European Union's appellee's submission, para. 277 (referring to, as examples, European Union's 
responses to Panel question Nos. 9, 10, 11, and 104; and second written submission to the Panel, 
paras. 271-276). 
406 European Union's appellee's submission, paras. 278 and 279 (referring to Panel Reports, 
para. 7.502; and quoting Appellate Body Report, Brazil – Retreaded Tyres , para. 156). 
407 European Union's appellee's submission, pa ra. 279 (quoting Appe llate Body Report, Brazil – 
Retreaded Tyres , para. 156). 
408 European Union's appellee's submission, para. 281 (referring to Panel Reports, para. 7.496 and 
fn 801 to para. 7.497). 
409 European Union's appell ee's submission, para. 281. 
410 European Union's appellee's submission, para. 291. 
411 European Union's appellee's submission, para. 306. 
412 European Union's appellee's submission, paras. 236 and 308. 
413 European Union's appellee's submission, para. 474. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.3.3  Article XX of the GATT 1994 
2.3.3.1  Aspects of the measure to  be justified under Article XX(a) 
2.134.  The European Union requests the Appellate  Body to reject Norway's appeal against the 
Panel's findings with respect to the aspect of the EU Seal Regime to be justified under Article XX(a) 
of the GATT 1994. According to the European Unio n, contrary to what Norway alleges, WTO 
jurisprudence on the issue "is not as clear cut and rather suggests that an artificial separation of certain provisions from the remainder of the me asure at issue … is not conducive to a proper 
understanding of the measure and can affect the correctness of the analysis under Article XX".
414  
2.135.  Responding to Norway's criticism of the Panel's reliance on US – Gasoline , the European 
Union points out that the Appellate Body in US – Gasoline  was of the view that "not only the 
provisions relating to importers and blenders, but al so those related to domestic refiners had to be 
considered in determining whether the measure [– i.e. the Gasoline Rule –] [could] be 
justified".415 This is because, in that case, the less favourable treatment found to be in violation of 
Article III:4 of the GATT 1994 "resulted from the interplay between the provisions relating to 
baselines for domestic refiners and the provisions relating to baselines for blenders and importers 
of gasoline".416 The Panel's approach in the present case is similar to the approach adopted by the 
Appellate Body in US – Gasoline since, under the EU Seal Regime, "the less favourable treatment 
alleged by the Complainants results from the interplay between the General Ban and the IC and 
MRM exceptions and not from the exceptions alone."417 The Panel was, therefore, correct in 
concluding that the ban and the exceptions under the EU Seal Regime are "closely connected to 
each other and could not operate in isolation".418 The European Union adds that the approach of 
the Appellate Body in US – Gasoline was "echoed subsequently" in the Panel report in Argentina – 
Hides and Leather .419 
2.136.  With respect to Norway's reliance on the Appellate Body report in Thailand – Cigarettes 
(Philippines) , the European Union submits that, contrary  to what Norway alleges, the Appellate 
Body's observations in that dispute indicate that, when less favourable treatment results from 
certain regulatory treatment of imports, "the an alysis under the exceptions of Article XX should 
focus on whether such 'regulatory differences' ar e 'necessary' in order to achieve the objectives 
set out in either of those two provisions at th e level of protection chosen by the responding 
Member."420 
2.137.  Based on these cases, the European Union asserts that the aspect of the measure to be 
justified should not be defined so narrowly as to make it impossible correctly to understand the 
measure, and that the focus of the analysis under Article XX should be on "regulatory 
differences".421 In the present case, the Panel was correct in not limiting its analysis to the IC and 
MRM exceptions, since the discrimination found to be inconsistent with the GATT 1994 resulted 
from the "interplay" between the ban and the exceptions.422 
2.138.  In response to Norway's criticism of the Panel's reasoning that an "exception", when 
considered alone, could never be "necessary" to achieve the objective of a ban, the European Union posits that "the mere fact that the exception is considered together with the general rule in 
the context of the analysis of the design and structure of the measure under a paragraph of 
Article XX in no way means that the exception is altogether 'removed from scrutiny'".
423 Instead, 
the exception "critically informs the design and stru cture" of the measure, particularly "the extent 
                                               
414 European Union's appell ee's submission, para. 389. 
415 European Union's appellee's submission, para. 393 (referring to Appellate Body Report, US – 
Gasoline , p. 16, DSR 1996:I, p. 15). 
416 European Union's appellee's submission, para. 393. 
417 European Union's appell ee's submission, para. 395. 
418 European Union's appellee's submission, para. 395 (referring to Panel Reports, para. 7.620). 
419 European Union's appellee's submission, para. 396 (referring to Panel Report, Argentina – Hides and 
Leather , paras. 11.303-11.305). 
420 European Union's appellee's submission, pa ra. 404 (quoting Appe llate Body Report, Thailand – 
Cigarettes (Philippines) , para. 177). 
421 European Union's appellee's submission, para. 404. 
422 European Union's appellee's submission, para. 407. 
423 European Union's appellee's submission, para. 412 (referring to Panel Reports, para. 7.638). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  to which the measure contributes to the stated objective", which then affects the Article XX 
analysis.424 Finally, the European Union contends that the Panel did not err in making a reference 
to its analysis under the TBT Agreement in its assessment of the measure with respect to Article XX. If at all, the Panel's "consistent an d coherent analysis between the TBT Agreement and 
the GATT 1994 … further supports the correctness of [its] approach".
425 
2.139.  In the event that the Appellate Body agrees with Norway that the Panel erred in 
considering whether the EU Seal Regime as a whole was provisionally justified under Article XX(a), 
the European Union notes its other appeal of the Panel's finding that the objective of the 
IC exception is rationally disconnected from the EU Seal Regime objective.426 If the Appellate Body 
agrees with the European Union and reverses the Panel's finding that the IC exception does not bear a rational relationship to the objective of addressing EU public moral concerns regarding seal 
welfare, "in completing the analysis following No rway's appeal, the Appellate Body would need to 
base its analysis on the finding that there is a rational connection between the IC exception and 
the objective of the EU Seal Regime."
427 If the Appellate Body upholds the Panel's finding that the 
IC exceptions does not bear a rational relationship with the objective of the EU Seal Regime, the 
European Union submits that the Appellate Body "should uphold Norway's claim that the Panel erred by failing to identify the objective pursued by the IC exception as an independent objective 
of the EU Seal Regime".
428 In completing the analysis under Article XX(a) in such circumstances, 
the European Union requests the Appellate Body to take into account "the modified Panel's 
analysis as to the objective of the IC exception an d its contribution to its fulfilment and find that 
the IC exception is justified" under Article XX(a) of the GATT 1994.429  
2.3.3.2  Scope of Article XX(a) 
2.140.  The European Union disagrees with Canada's claim that the Panel erred in finding that the 
EU Seal Regime falls within the scope of applicat ion of Article XX(a) of the GATT 1994. Contrary to 
Canada's arguments, the European Union submits that there is no requirement to assess the "risk" 
to public morals in order to determine whether a measure falls within the scope of Article XX(a). Instead, such examination must be undertaken as part of the "necessity" analysis because, where 
the risks that a measure purports to address are shown to be "inexistent or negligible", the 
measure will be found "unnecessary".
430 Relying on a statement by the Appellate Body in Korea – 
Various Measures on Beef , the European Union argues that "all that must be shown in order to 
establish that a measure falls within the scope of Article XX(a) is that the measure is designed to 
protect public morals."431 The European Union points out that Canada has not appealed the Panel's 
finding that the EU Seal Regime pursued a "public morals objective". On the basis of this finding, the European Union considers that "the Panel was entitled to conclude that the EU Seal Regime 
was designed to protect public morals and, therefore, fe ll within the scope of Article XX(a) of the 
GATT 1994."
432 
2.141.  The European Union submits that Canada's interpretation of Article XX(a) would 
"effectively introduce … a strict consistency test",  which would impose on Members the burden of 
proving "that the relevant standard of morality is consistently applied by them in each and every situation involving similar risks."
433 According to the European Union, WTO jurisprudence shows 
that the application of a measure in one area is "only of a limited relevance" to an Article XX 
analysis.434 The European Union adds that introducing a "consistency" test into Article XX would 
limit Members' "regulatory autonomy and, in particular, their right to select an appropriate level of 
                                               
424 European Union's appellee's submission, para. 412. 
425 European Union's appellee's submission, para. 414 (referring to Appellate Body Report, US – Clove 
Cigarettes , paras. 90 and 91). 
426 European Union's appellee's submission, para. 415 (r eferring to European Union's other appellant's 
submission, paras. 91-123). 
427 European Union's appellee's submission, para. 416. 
428 European Union's appellee's submission, para. 417. 
429 European Union's appell ee's submission, para. 417. 
430 European Union's appellee's submission, para. 342. 
431 European Union's appellee's submission, para. 344 (referring to Appellate Body Report, Korea – 
Various Measures on Beef , para. 157). (emphasis original) 
432 European Union's appellee's submission, para. 346. (emphasis original) 
433 European Union's appellee's submission, para. 347.  
434 European Union's appellee's submission, para. 349.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  protection in different situations".435 Such a limitation, the European Union maintains, cannot be 
easily presumed absent clear text, since, when the drafters intended to provide for a consistency obligation, they did so expressly, such as in Ar ticle 5.5 of the Agreement on the Application of 
Sanitary and Phytosanitary Measures (SPS Agreement).
436  
2.142.  The European Union also takes issue with Canada's argument that the EU Seal Regime 
does not address genuine risks to public morals on animal welfare on the ground that the European Union "tolerates" a similar degree of animal suffering in slaughterhouses and terrestrial 
wildlife hunts.
437 The European Union highlights that the Panel gave detailed reasons for its 
findings on the uniqueness and distinctiveness of the welfare risks associated with seal hunts, and that these findings have not been challenged by Canada. The European Union reiterates that comparing seal hunts with those activities would be "of limited value" given the differences in the 
animals involved, the killing methods, and the physical environment.
438 Owing to these 
differences, and the "limited value" accorded to comparisons with terrestrial hunts, the European Union argues that the Panel was not bound  to address Canada's evidence concerning the 
poor welfare outcomes in terrestrial wildlife hunts. 
2.143.  Finally, with respect to Canada's claim that the Panel failed to make an objective 
assessment of the matter, contrary to Article 11 of the DSU, by failing to take into account 
evidence relating to environmental conditions and risks in other situations, such as wildlife hunts, 
the European Union notes that Canada misstates the Panel's finding. According to the European Union, the Panel did not simply distinguish the physical environmental conditions of seal hunts from the conditions in wildlife hunts, but rather distinguished between "hunts occurring 
within or near Arctic and sub-Arctic regions, on the one hand, and terrestrial wild life hunts, on the 
other hand".
439 The European Union submits that the differences between Arctic and semi-Arctic 
marine habitats and the terrestrial habitats of animals are "self-evident".440 A s  t o  C a n a d a ' s  
argument that the Panel failed thoroughly to assess the EFSA Scientific Opinion, the European 
Union submits that, contrary to Canada's arguments, the EFSA Scientific Opinion "stressed that the methods for killing wild animals and their efficacy vary considerably" and "cautioned that 'care 
should be taken when comparing their efficacy because of the great variation in environmental 
conditions concerned'".
441 With respect to the Panel's alleged failure to consider the risks to animal 
welfare in terrestrial wildlife hunts in determining whether such risks exist for seal hunts, the European Union points out that the Panel found co mparisons with terrestrial hunts to be "of limited 
value" and, therefore, it was not necessary fo r the Panel to address the evidence cited by 
Canada.
442 
2.3.3.3  The Panel's analysis of "necessity" 
2.144.  The European Union asserts that the complainants' arguments with respect to the Panel's 
"contribution" analysis are based on a misreadi ng of the Appellate Body's observations in Brazil – 
Retreaded Tyres . The European Union clarifies that the Appellate Body in that case left open "the 
possibility that, exceptionally, an import ba n may be considered necessary even when the 
contribution is not 'material'".443 Moreover, the European Union adds, in using the phrase "material 
contribution", the Appellate Body "did not purpor t to define a minimum legal requirement to be 
enforced by panels as a mandatory component of the necessity test".444 Instead, the Appellate 
Body simply made a "prediction about the likely legal characterization of a certain factual 
scenario", which provides useful guidance, but should not be taken as a legal requirement.445 The 
                                               
435 European Union's appellee's submission, para. 352. 
436 European Union's appellee's submission, para. 352. 
437 European Union's appellee's submission, para. 353 (quoting Canada's appellant's submission, 
para. 395).  
438 European Union's appellee's submission, paras. 354 and 378 (quoting Panel Reports, fn 300 to 
para. 7.206).  
439 European Union's appellee's submission, para. 370 (referring to Panel Reports, para. 7.187). 
(emphasis original) 
440 European Union's appellee's submission, para. 371. 
441 European Union's appellee's submission, para. 376 (quoting EFSA Scientific Opinion, p. 36). 
442 European Union's appellee's submission, para. 378  (quoting Panel Reports, fn 300 to para. 7.206). 
443 European Union's appellee's submission, para. 423 (referring to Appellate Body Report, Brazil – 
Retreaded Tyres , para. 510). 
444 European Union's appellee's submission, para. 423. 
445 European Union's appellee's submission, para. 423. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  European Union considers that the interpretation advanced by the complainants would contradict 
the interpretation of the contribution requirem ent under Article 2.2 of the TBT Agreement as 
applied in US – COOL , in which "the Appellate Body rebuked the panel for having considered it 
necessary for the COOL measure to meet  some minimum level of fulfilment".446 The European 
Union also highlights that, unlike the measure at issue in Brazil – Retreaded Tyres , the EU Seal 
Regime does not provide for "a complete import ban", as the complainants themselves appear to have acknowledged.
447 
2.145.  In any event, the European Union maintains that, in Brazil – Retreaded Tyres , the 
Appellate Body held that "a contribution should be deemed 'material' provided that it is not 'marginal or insignificant'."
448 In this case, the European Union claims that both the Panel's 
findings and the evidence on record "demonstrate that the contribution of the EU Seal Regime is 
clearly more than 'marginal or insignificant', even if it cannot be quantified precisely".449 For these 
reasons, the European Union requests the Appellate Body to reject Canada's and Norway's claims and arguments on appeal with regard to the nece ssity of the EU Seal Regime under Article XX(a) 
of the GATT 1994. 
2.3.3.4  The Panel's analysis under the chapeau of Article XX 2.146.  The European Union submits that the Appellate  Body should reject Canada's claims of legal 
error with respect to the Panel's reasoning under  the chapeau of Article XX of the GATT 1994. 
According to the European Union, the Panel's approach of taking into account its "legitimate regulatory distinction" analysis under Article 2. 1 of the TBT Agreement for the purposes of its 
assessment of "arbitrary or unjustifiable discrimination" under the chapeau is legally correct.
450 
The European Union asserts that the complainants' "rigid interpretation" of the term "arbitrary or 
unjustifiable discrimination" as embodying a requirement that the reasons for discrimination be "rationally connected" to the policy objective of the measure is not reflected in the text of the 
chapeau or past Appellate Body jurisprudence.
451 While the European Union agrees that 
determining whether the discrimination at issue is "arbitrary or unjustifiable" usually involves an investigation of the reason underlying the discrimination, in its view, investigating the cause 
underlying the discrimination is not necessarily limited to determining whether such cause is 
"rationally connected" to the objective of the measure. Moreover, as reflected in prior Appellate Body jurisprudence, determining the cause of the discrimination may involve the consideration of other factors.
452  
2.147.  The European Union considers that its position is supported by Brazil – Retreaded Tyres , 
where the Appellate Body found that, under the specific circumstances of that case, the MERCOSUR arbitral ruling was "not an acceptab le rationale for the discrimination, because it 
[bore] no relationship to the legitimate objective pursued by the Import Ban that [fell] within the 
purview of Article XX(b), and even [went] against this objective".
453 The European Union 
emphasizes that, unlike the EU Seal Regime, the measure in Brazil – Retreaded Tyres  was a health 
measure, which was provisionally justified under Article XX(b). According to the European Union, 
the "line of equilibrium" that the Appellate Body found with respect to the health measure in Brazil – Retreaded Tyres  under the specific circumstances of that case does not apply to the 
EU Seal Regime, which requires a different "bal ancing exercise" between public moral concerns 
and other interests.
454 The European Union contends that the Panel, therefore, correctly based its 
conclusion on the justification of the regulatory distinction on the specific circumstances of these 
disputes. 
                                               
446 European Union's appellee's submission, para. 424. 
447 European Union's appellee's submission, para. 427. 
448 European Union's appellee's submission, para. 429. 
449 European Union's appellee's submission, para. 429. 
450 European Union's appellee's submission, para. 442. 
451 European Union's appellee's submission, paras. 443-447 (referring to Appellate Body Reports, US – 
Gasoline , p. 23, DSR 1996:I, p. 21; and US – Shrimp , paras. 158 and 159). 
452 European Union's appellee's submission, paras. 448-456 (referring to Appellate Body Reports, US – 
Gasoline , pp. 28-29, DSR 1996:I, p. 27; and US – Shrimp , paras. 161, 165, 166, 173, 175, and 180-184). 
453 European Union's appellee's submission, para. 451 (quoting Appellate Body Report, Brazil – 
Retreaded Tyres , para. 228). 
454 European Union's appellee's submission, para. 453 (quoting Appellate Body Report, US – Shrimp , 
para. 159). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.148.  The European Union further maintains th at the Panel based its conclusion about the 
justification of the regulatory distinction on its finding that, in the EU Seal Regime, "the interests underlying the IC exception are 'balanced agai nst the objective of the measure at issue.'"
455 The 
European Union adds that, by contrast, in Brazil – Retreaded Tyres , the Appellate Body did not find 
"any such balancing" in the measure at issue, since, in that case, there was a "complete 
dissociation of objectives".456 Finally, the European Union notes that the nature of the exceptions 
in the two cases differ significantly. In the present case, the IC exception is "based on a broad 
recognition of the unique interests of Inuit and other indigenous communities", whereas in Brazil – 
Retreaded Tyres, the exception at stake had "a mere economic objective, i.e. implementing the 
market access concessions contained in the MERCOSUR free trade agreement".457 Given the 
"relevant differences" between the present case and Brazil – Retreaded Tyres , the European Union 
submits that the Panel's approach to not "exclusively focus" on the rational connection between 
the cause of the exceptions and the main objective of the measure "appears correct".458 
2.149.  The European Union also submits that the approach proposed by the complainants also 
conflicts with the purpose of Article XX, which is "to balance the substantive obligations established 
in the GATT 1994 with certain important and legitimate policy objectives".459 The European Union 
underscores that the "[e]xceptions are often not 'rationally connected' to the main purpose of a 
measure", and when they are "inserted to achi eve a balance between the main objective … and 
conflicting other legitimate objectives, there will typically be a 'disconnect' between their rationale and the main objective pursued".
460 The approach proposed by the complainants would preclude 
Members from carrying out such a balancing exercise, when there is nothing "arbitrary or 
unjustifiable" in "striking a balance between animal welfare and these other objectives".461 Finally, 
the European Union contends that the "rigid interpretation" proposed by the complainants also disregards the context provided by the TBT Ag reement to the chapeau of Article XX of the 
GATT 1994, and that the Panel rightly attemp ted to achieve a "coherent and consistent 
interpretation" by taking into account its analysis under Article 2.1 of the TBT Agreement.
462 For 
these reasons, the European Union requests the Appellate Body to reject Canada's and Norway's 
allegations of errors concerning the Panel's findings under the chapeau of Article XX of the 
GATT 1994.463 
2.150.  In the event that the Appellate Body accepts Canada's and Norway's appeals, the 
European Union notes its other appeal of the Panel's finding that "the IC exception does not bear a 
rational relationship to the objective of addressing the moral concerns of the public on seal 
welfare."464 According to the European Union, if the Ap pellate Body modifies the Panel's reasoning 
following successful appeals by Canada and Norway as regards the interpretation of the chapeau, 
the Appellate Body "should not base its analysis on a finding of a lack of rational connection 
between the IC exception and the objective of the EU Seal Regime".465 
2.4  Claims of error by the Eu ropean Union – Other appellant 
2.4.1  Annex 1.1 to the TBT Agreement 
2.151.  The European Union contends that the Pane l erred in its interpretation and application of 
the terms "product characteristics" and "applicable administrative provisions" in the definition of a "technical regulation" under Annex 1.1 to the TBT Agreement, and consequently requests the 
Appellate Body to reverse the Panel's conclusion that the EU Seal Regime constitutes a "technical 
                                               
455 European Union's appellee's submission, pa ra. 454 (quoting Panel Reports, para. 7.296). 
456 European Union's appellee's submission, para. 454 (referring to Appellate Body Report, Brazil – 
Retreaded Tyres , paras. 228 and 234). 
457 European Union's appellee's submission, para. 455 (referring to Panel Reports, para. 7.298). 
458 European Union's appell ee's submission, para. 456. 
459 European Union's appellee's submission, para. 457 (referring to Appellate Body Report, US – Shrimp , 
para. 121). 
460 European Union's appellee's submission, para. 457. 
461 European Union's appellee's submission, para. 458. 
462 European Union's appellee's submission, para . 458 (referring to Appellate Body Report, US – Clove 
Cigarettes , para. 91; and Panel Reports, para. 7.613). 
463 European Union's appellee's submission, para. 461. 
464 European Union's appellee's submission, para. 459 (r eferring to European Union's other appellant's 
submission, paras. 91-123). 
465 European Union's appellee's submission, para. 460. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 59 - 
 
  regulation" and to declare moot and of no legal effect the Panel's findings and conclusions under 
Article 2.1, 2.2, 5.1.2, and 5.2.1 of the TBT Agreement.466  
2.152.  First, with respect to the Panel's interpretation of the term "applicable administrative 
provisions", the European Union submits that the Panel erred in considering that the word 
"applicable" pertains to "products" rather than "product characteristics or their related processes 
and production methods" (PPMs).467 Pointing to the text of Annex 1.1, the European Union 
observes that "[t]he reference to 'applicable administrative provisions' immediately follows the 
mention of 'product characteristics or their relate d [PPMs]'", with the two categories being linked 
by "the conjunctive term 'including'".468 Regarding the measure at issue, the European Union 
asserts that, while the procedural requirements contained in the Implementing Regulation might 
be described as administrative provisions, they "do not directly pertain to … what the Panel 
considered as a product characteristic laid down in the negative form, namely that the products 
must not contain seal".469 Instead, they regulate trade in seal products. For the European Union, 
they cannot therefore be considered as being "app licable" to a product characteristic within the 
meaning of Annex 1.1. 
2.153.  Second, the European Union alleges that th e Panel erred in its interpretation of the term 
"product characteristics" by relying only on "a fragment of the Appellate Body's analysis in  
EC – Asbestos " on the ordinary meaning of "product characteristics".470 In particular, the Panel 
erred in relying on EC – Asbestos  to find support for its finding that any "objectively definable 
features" of a product constitute product characteristics.471 This led the Panel to find that the 
criteria established under the Implementing Regu lation concerning the type of hunter and/or 
qualifying hunts amount to "product characteristics" within the meaning of Annex 1.1. Under the 
Panel's interpretation of Annex 1.1, "virtually anyt hing" that bears a relation to a product could be 
construed as a product characteristic".472 The European Union adds that the Panel's reading of 
Annex 1.1 renders redundant, at least in part, the inclusion of "related [PPMs]", as the two 
concepts overlap in scope. It also contradicts th e object and purpose of the TBT Agreement, which 
"was designed to elaborate on the disciplines of Ar ticle III of the [GATT] for a very specific subset 
of measures" rather than to cover "all government regulatory actions affecting products" or "all 
internal measures covered by Article III:4 of the GATT 1994".473 The European Union further 
argues that the negotiating history of the TBT Agreement reflects the intent to narrow the scope of the TBT Agreement, as negotiators only agreed to include PPMs " related to product 
characteristics".
474 
2.154.  On this basis, the European Union submits that the conditions imposed under the EU Seal 
Regime – the IC, MRM, and Travellers exceptions – "do not concern the intrinsic characteristics or 
features that are related to the products".475 Specifically, the IC exception deals with "the identity 
of the hunters, the traditions of their communities and the purpose of the hunt"476; the 
MRM exception relates to "the size, intensity and purpose of the hunt and the marketing conditions 
(i.e. non-profit and non-systematic) of the products"477; and the Travellers exception pertains to 
"the use of the products and the circumstances of their importation".478 None of these conditions, 
argues the European Union, set out any intrinsic or related features of the products.  
2.155.  Finally, referring to the Appellate Body's findings in EC – Asbestos , the European Union 
recalls that the proper legal characterization of  the measure at issue cannot be determined unless 
the measure is examined "as a whole".479 The European Union adds, however, that the Appellate 
                                               
466 European Union's other appellant's submission, paras. 88-90 and 332. 
467 European Union's other appe llant's submission, para. 53. 
468 European Union's other appe llant's submission, para. 55. 
469 European Union's other appe llant's submission, para. 58. 
470 European Union's other appe llant's submission, para. 61. 
471 European Union's other appellant's submission , para. 65 (quoting Panel Reports, para. 7.110). 
472 European Union's other appell ant's submission, para. 66.  
473 European Union's other appellant's submission, pa ras. 68 and 69, respectively (quoting Appellate 
Body Report, EC – Asbestos , para. 77). 
474 European Union's other appellant's submission, para. 70. (emphasis original) 
475 European Union's other appe llant's submission, para. 71. 
476 European Union's other appe llant's submission, para. 72. 
477 European Union's other appe llant's submission, para. 73. 
478 European Union's other appe llant's submission, para. 74. 
479 European Union's other appellant's submission, para. 76 (referring to Appellate Body Report, EC – 
Asbestos , para. 64).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Body did not suggest in that case that "it is sufficient for one component to meet the criteria for a 
technical regulation for a measure as a whole to be considered" as such.480 Thus, it was incorrect 
for the Panel to conclude that a measure as a whole can be deemed a technical regulation "simply because one of its components meets the criterion for a technical regulation".
481 In the European 
Union's view, since not all of the components of  the EU Seal Regime meet the criteria for a 
technical regulation, the Panel should have instead based its determination on consideration of "all components of the measure and their respective ro le in [its] operation and object and purpose".
482 
In this regard, the European Union argues that  the Panel failed to address how the ban on 
products consisting exclusively of seal impacts on the legal characterization of the measure as a whole.
483 The European Union further highlights that, while the exceptions in the measure at issue 
in EC – Asbestos "permitted certain products which were identified according to their intrinsic 
characteristics"484, none of the conditions under which seal-containing products may enter the 
European Union market "relate to intrinsic or related product characteristics".485 Thus, if the 
prohibition contained in the EU Seal Regime is examined in the light of the IC, MRM, and Travellers 
exceptions, the measure "cannot be reduced to the simple negative intrinsic product characteristic 
that products may not contain seal".486 Nor does the EU Seal Regime, when considered as a whole, 
lay down "product characteristics" within th e meaning of Annex 1.1 to the TBT Agreement. 
2.4.2  Article 2.1 of the TBT Agreement 
2.156.  The European Union appeals the Panel's finding that "the IC exception does not bear a 
rational relationship to the objective of addressing the moral concerns of the public on seal welfare".
487 The European Union submits that this finding was "based on an incorrect interpretation 
of the notion of 'public morals'", according to which a Member claiming that a measure pursues a 
public morals objective has to show that the measure is supported by a majority of its population.
488 Alternatively, the European Union submits that, in reaching its conclusion that the 
EU public does not support the IC exception, the Panel failed to make an objective assessment of 
the evidence before it as required by Article 11 of the DSU.  
2.157.  The European Union observes that the Pane l cited with approval the interpretation of the 
notion of "public morals" made by the panels in US – Gambling  and China – Publications and 
Audiovisual Products , but argues that, in its reasoning, the Panel disregarded the interpretation 
developed in these previous disputes.489 According to the European Union, the Panel held that the 
IC exception was not related to the public morals objective of the EU Seal Regime because it was 
not "grounded in the concerns of EU citizens", a fi nding that it had in turn inferred from evidence 
"consisting exclusively of opinion polls and a public consultation".490 The European Union takes 
issue with the Panel's finding on the basis that the "standards of right and wrong" that make up a 
M e m b e r ' s  p u b l i c  m o r a l s  " d o  n o t  n e c e s s a r i l y  h a v e  t o  b e  h e l d  b y  a  m a j o r i t y  o f  m e m b e r s  o f  a  
community".491 Instead, the European Union argues that these standards "can be set by a 
Member's authorities on behalf of  a community, in accordance with that Member's own system  of 
government".492 The European Union submits that "[i]t is … the task of legislators and regulators 
to translate the broader moral concerns of the publ ic into precise requirements, by relying on their 
                                               
480 European Union's other appe llant's submission, para. 77. 
481 European Union's other appellant's submission, para. 79 (referring to Panel Reports, para. 7.100). 
482 European Union's other appe llant's submission, para. 81. 
483 European Union's other appellant's submission, pa ra. 83 (referring to Panel Reports, fn 153 to 
para. 7.106). In its opening statement at the oral hearing, the European Union explained that the purpose of a ban is not to set out product characteristics or re lated PPMs, compliance with which would allow certain 
products to have access to the mark et. The purpose of a ban, thus, fundam entally differs from the purpose of a 
technical regulation. The European Union noted that, like a ban, a technical regulation may have as a 
consequence the exclusion of certain products from the market; however, unlike a ban, a technical regulation 
also ensures that conforming products, which possess th e required product characteristics or related PPMs, are 
given access to the market. 
484 European Union's other appellant's submission, para. 87 (referring to Appellate Body Report, EC – 
Asbestos , para. 74). 
485 European Union's other appe llant's submission, para. 88. 
486 European Union's other appe llant's submission, para. 88. 
487 European Union's other appellant's submission, para. 91 (quoting Panel Reports, para. 7.275).  
488 European Union's other appell ant's submission, para. 92.  
489 European Union's other appellant's submission, para. 107.  
490 European Union's other appellant's submission, para. 107 (quoting Panel Reports, para. 7.402).  
491 European Union's other appellant's submission, para. 108.  
492 European Union's other appellant's su bmission, para. 108. (emphasis original) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  superior knowledge of the specific factual circumstances."493 This means, according to the 
European Union, that, even if it could be concluded that the IC exception is not "grounded in the concerns of EU citizens", this would not imply that the IC exception is "rationally disconnected" from the public morals objective pursued by the EU Seal Regime.
494  
2.158.  The EU Seal Regime, according to the European Union, reflects the "moral standard" that 
"humans ought not to inflict suffering upon animals without a sufficient justification".495 The 
European Union claims that the IC exception reflects a "balancing of interests which is an integral 
part of that moral standard".496 The European Union finds the Panel's conclusion to be "all the 
more difficult to understand" in view of the fact that the Panel, in reaching its earlier finding that public concerns regarding the welfare of seals were "moral" in nature, had found ample evidence for the existence of a "well-established moral doctrine" grounding these concerns.
497 According to 
the European Union, the Panel totally disregarde d that evidence when considering whether the 
IC exception was rationally connected to the public morals objective of the EU Seal Regime. Nevertheless, the European Union claims that the IC exception is in fact the outcome of the 
application of that moral doctrine in the context of seal hunting. 
2.159.  The European Union further explains that the fundamental tenet of the moral doctrine of 
"animal welfarism" is that it is morally acceptable to inflict suffering upon animals where 
sufficiently justified by human needs.
498 The European Union notes that none of the laws on animal 
welfare cited by the Panel stipulate an absolute prohibition on inflicting suffering upon animals; rather, all of them provide for exceptions based on overriding human needs. The European Union 
further submits that the evidence before the Pane l confirmed that the IC exception was the result 
of a proper application of the moral standard in voked by the European Union. The European Union 
points to the Panel's finding that "seal hunting represents a vital element of the tradition, culture, and livelihood of Inuit and indigenous populati ons", and submits that the EU legislators could 
reasonably have concluded that these specific circumstances rendered the IC exception 
necessary.
499 
2.160.  The European Union submits that the Panel misinterpreted and misapplied Article 2.1 of 
the TBT Agreement when examining whether the IC  exception is even-handed in its design and 
application. According to the European Union, the Panel should have examined whether the IC exception was designed and applied "in a reasonable, impartial and harmonious manner", having regard to its objective, namely, to protect the interests of Inuit and other indigenous 
communities traditionally engaged in seal hunting for subsistence purposes.
500 Instead, the Panel 
determined that the IC exception was de facto  available exclusively to Greenland, without 
examining the actions and omissions of the relevant Canadian authorities and operators. The 
European Union further submits that the Panel wrongly focused on the greatest similarities 
between seal hunts in Greenland and commercial hunts, which is irrelevant for the assessment of even-handedness, given that the Panel had al ready found that seal hunts in Greenland are 
IC hunts conducted for subsistence purposes.
501 
2.161.  More specifically, the European Union recalls that the IC exception makes a distinction 
between IC and commercial hunts in view of their pu rposes – i.e. subsistence versus primarily or 
solely for profit – and that the requirements to  qualify under the IC exception are "reasonable, 
tailor-made and harmonious with the objective" of the IC exception – i.e. the protection of Inuit 
interests. The European Union further argues that the operation and application of the IC exception is fair, impartial, and harmonious with its objective, in that only seal products derived 
from hunts conducted by Inuit communities for subsistence purposes can benefit from the 
exception. The European Union notes that any entity within the Inuit communities in Canada or elsewhere can meet the requirements to become a recognized body for the purposes of assessing 
conformity with the IC exception. The European Un ion submits that the fact that, so far, only an 
                                               
493 European Union's other appellant's submission, para. 109. 
494 European Union's other appellant's submission, para. 107 (quoting Panel Reports, para. 7.402).  
495 European Union's other appellant's submission, para. 110. 
496 European Union's other appellant's submission, para. 110. 
497 European Union's other appellant's submission, para. 111.  
498 European Union's opening statement at the oral hearing. 
499 European Union's other appellant's submission, para. 143 (referring to Panel Reports, para. 7.295). 
500 European Union's other appellant's submission, para. 151.  
501 European Union's other appellant's submission, para. 151 (referring to Panel Reports, paras. 7.288 
and 7.289). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  entity in Greenland has become a recognized body results from the decisions of the relevant 
authorities and operators in other countries, and cannot be attributed to the EU Seal Regime. The European Union argues that, contrary to what the Panel found, there is no "inherent flaw" or permanent defect in the IC exception that prevents Inuit communities, other than those in 
Greenland, from taking advantage of it.
502  
2.162.  The European Union further submits that the Panel's focus on the de facto  exclusivity of 
the IC exception to Greenland, where the Inuit hunt bears the greatest similarities to commercial 
hunts, is misdirected. According to the Euro pean Union, the Panel wrongly assessed the 
even-handedness of the IC exception by looking at the effects of the measure in a particular period 
of time. The European Union underscores that, while Canada and its Inuit communities have not taken any steps to benefit from the IC exception despite numerous efforts made by the 
EU authorities, they could do so at any time in th e future, if and when they so wish, based on their 
assessment of whether exports to the European Union are desirable. In the European Union's view, the fact that the Canadian authorities purchase Inuit products under a targeted programme means 
that they have, in principle, a convenient and easy  means to identify the seal products qualifying 
for the IC exception.  
2.163.  With respect to the Panel's findings on the degree of the commercial aspect in seal hunts 
in Greenland, the European Union expresses its under standing that the Panel did not find that seal 
hunts in Greenland should be characterized as "commercial hunts" – i.e. as hunts having as their sole or primary purpose to make a profit out of selling seal products on the market. The European Union submits that, as long as these hunts meet the criteria to qualify as a legitimate indigenous 
subsistence activity, and are thus "'subsistence'/IC hunts", the extent to which some of the 
by-products of these hunts are sold through commercial channels by Inuit communities in Greenland is irrelevant for assessing even-handedness in the design and application of the 
IC exception.
503 The European Union notes that the commercial aspect of subsistence hunts "by 
definition" resembles the commercial characteristics of commercial hunts.504 The European Union 
argues that, given that the Panel accepted the legi timacy of an exception to the sales ban for the 
marketing of by-products of indigenous subsistence hunting, the fact that such marketing then 
"actually happen[ed]" cannot invalidate that legitimacy on the basis of a lack of even-handedness.
505 For the European Union, the Panel's reference to the degree of commercialization 
of seal products in Greenland is, therefore, "logically erroneous".506 
2.4.2.1  Claims under Article 11 of the DSU 
2.164.  The European Union maintains that the evid ence on which the Panel relied – consisting of 
opinion polls and a public consultation – lend s no support to the Panel's finding that the 
IC exception is not "grounded in the concerns of EU citizens".507 Before the Panel, the European 
Union had argued that two opinion polls referenced  in the 1986 Report of the Royal Commission on 
seals and sealing in Canada508 (Royal Commission Report) confirmed that the EU public's concerns 
varied according to the purpose of the hunt, and more specifically, that the public was less 
concerned with the hunts conducted by the Inuit for subsistence purposes than with commercial hunts. In the first poll – conducted by the Royal Commission (RC poll) – respondents were asked which, if any, of various types of seal hunts they found acceptable. According to the European 
Union, the results showed that only a very smal l percentage of respondents found commercial seal 
hunts acceptable, while a very large percentage found seal hunting by indigenous communities for food and clothing acceptable. The European Union contends that, while the percentage of 
respondents who found Inuit seal hunting for cash  or to finance hunting for food acceptable was 
significantly smaller, it was still much higher than the percentage of respondents who found acceptable either the purely commercial hunts or all hunts.
509 In the second poll – conducted by 
                                               
502 European Union's other appellant's submission, para. 193. 
503 European Union's other appellant's submission, paras. 206 and 207 (referring to Panel Reports, 
paras. 7.285, 7.287, and 7.288).  
504 European Union's other appellant's submission, para. 208.  
505 European Union's other appellant's submission, para. 208.  
506 European Union's other appellant's submission, para. 208.  
507 European Union's other appellant's submission, para. 112 (quoting Panel Reports, para. 7.402). 
508 Report of the Royal Commission, Seals and Sealing in Canada (1986), Vol. I, Chapter 11, "Public 
Opinion on Sealing" (Panel Exhibit EU-48). 
509 European Union's other appellant's submission , para. 114 (citing information taken from Royal 
Commission Report, Table 11.6, at p. 169). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  the Canadian Sealers Association (CSA poll) – re spondents were asked under which conditions the 
killing of animals would be acceptable. The European Union points out that 90% of respondents agreed with the statement that "the killing of wild animals is acceptable if a person's survival or livelihood depends on it".
510  
2.165.  The European Union submits that the Panel did not claim that these polls support its 
finding, but rather characterized them as "unreliable".511 The European Union argues that, in 
reaching this conclusion, the Panel "disregard ed" or "distorted" the findings of the Royal 
Commission.512 Although the Panel noted that the Royal Commission identified "two uncertainties" 
about the result of the polls, the European Union argues that these uncertainties did not lead the 
Royal Commission to question the "reliability" of the CSA poll.513 Instead, the Royal Commission 
concluded that the CSA poll "at least, supports the view that there is strong public approval of 
taking seals for subsistence purposes".514 In the European Union's view, it is "impossible to 
reconcile" this finding of the Royal Commission with the Panel's finding that EU public concerns regarding seal welfare do not vary depending on the purpose of the hunt.
515 In addition, although 
the Panel relied on the observation of the Royal Commission that the responses to the RC poll 
"may perhaps imply little general understanding of the essential economic structure" of Inuit 
hunts516, the European Union contends that the Royal Commission went on to conclude that both 
the RC poll and the CSA poll "showed that the purpose behind the hunt may have a great effect on 
public reaction to it".517 In the European Union's view, the public's relatively low level of knowledge 
as to the economic realities of Inuit hunts would not render "unreliable" the opinions expressed by the public or the underlying moral views.
518  
2.166.  Regarding the public consultation conducted by the EU Commission in connection with the 
adoption of the EU Seal Regime, the European Union took note of the Panel's observation that 62% of respondents stated that seals should not be hunted for any reason, whereas 18% stated 
that hunting is most acceptable when the hunter belongs to a traditional seal culture/community 
or depends on the seal hunt for his main income.
519 The European Union also notes the comment 
by COWI that the consultation showed that there is a "greater level of acceptance of the hunt if it 
is embedded in a traditional seal hunting culture"520, and further observes that the 
representativeness of the respondents was limited, and that there are "clear indications" that the consultation underestimates the actual percentage of members of the public who regard traditional hunts conducted for subsistence purposes as more acceptable than other hunts.
521 
2.167.  In the alternative, the European Union alleges that the Panel acted inconsistently with 
Article 11 of the DSU in finding that: (i) the text, legislative history, and application of the IC exception indicate that the IC exception is available de facto  exclusively to Greenland; and 
(ii) the commercial aspect of seal hunts in Greenland is comparable to that of commercial hunts. 
The European Union further claims that the Panel's finding that "the text of the IC exception, its legislative history, and the actual application of  the IC exception, cast serious doubt on the 
even-handedness of the design and application of the IC exception" is inconsistent with the Panel's 
duty under Article 11 of the DSU to make an objective assessment of the facts.
522 The 
                                               
510 European Union's other appellant's submission , para. 115 (citing information taken from Royal 
Commission Report, p. 160).  
511 European Union's other appellant's submission, para. 116 (referring to Panel Reports, fn 676 to 
para. 7.410). 
512 European Union's other appellant's submission, para. 116. 
513 European Union's other appellant's submission, para. 116 (quoting Panel Reports, fn 676 to 
para. 7.410). 
514 European Union's other appellant's submission , para. 117 (quoting Royal Commission Report, 
p. 185). 
515 European Union's other appellant's submission, para. 117. 
516 European Union's other appellant's submission , para. 118 (quoting Royal Commission Report, 
p. 168).  
517 European Union's other appellant's submission , para. 118 (quoting Royal Commission Report, 
p. 185). 
518 European Union's other appellant's submission, para. 118. 
519 European Union's other appellant's submission, para. 119 (referring to Panel Reports, fn 652 to 
para. 7.398 and fn 676 to para. 7.410, in turn referring to COWI, Assessment of the potential impact of a ban 
of products derived from seal species  (April 2008) (Panel Exhibit JE-20) (COWI 2008 Report), pp. 124-127).  
520 European Union's other appellant's submission, para. 121 (quoting COWI 2008 Report, pp. 126-127). 
521 European Union's other appellant's submission, para. 122 (quoting COWI 2008 Report, p. 125). 
522 European Union's other appellant's submission, para. 223 (quoting Panel Reports, para. 7.317).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  European Union submits that the Panel failed to  provide reasoned and adequate explanations, 
lacked a sufficient evidentiary basis, and provid ed incoherent reasoning in arriving at this 
conclusion. 
2.168.  With respect to the text of the IC except ion, the European Union notes the Panel's finding 
earlier in its analysis that, "[b]ased on the text, we consider that the requirements of the 
IC exception are generally linked to the characteristics of IC hunts".523 For the European Union, 
this means that the Panel "did not find anything wrong with the requirements" attached to the 
IC exception.524 The European Union, therefore, fails to understand how the Panel could have 
relied on the text of the IC exception as a ba sis for finding a lack of even-handedness. The 
European Union submits that, by doing so, the Pane l provided incoherent reasoning and failed to 
provide an adequate explanation for its finding. 
2.169.  With respect to the legislative  history of the IC exception, the European Union notes the 
Panel's observation that the COWI 2008 and 2010 Reports525 "anticipated" that Greenland would 
be the only beneficiary of the IC exception, as well as the Panel's finding that the fact that 
Greenland is the only beneficiary of the IC exception is "not merely an incidental effect" of the 
application of the exception.526 According to the European Union, the Panel based its conclusion 
that the IC exception was drafted with the knowledge that only Greenland could benefit from it on 
the two COWI Reports, as well as the Parliament Report on the proposal for a regulation 
concerning trade in seal products.527 The European Union submits that the Panel's reliance on 
those documents was "unwarranted", and that the Panel lacked an evidentiary basis for its finding.
528 According to the European Union, neither the COWI Reports nor the Parliament Report 
lends support to the conclusion that "only Greenland could benefit from the IC exception".529 
2.170.  With respect to the COWI 2010 Report on the study on implementing measures for trade 
in seal products, the European Union asserts that the Panel took certain statements by COWI out 
of context, and that they were in any event uns upported by any evidence. For example, the COWI 
statement that the Panel relied upon was made in the context of assessing the impact of adopting 
stricter, as compared to less stringent, systems of traceability of seal products. The European 
Union notes that COWI merely found that "[t]he more stringent the implementing rules (i.e. the 
traceability system), the more likely this would result in the diversion of all exempted trade to Greenland."
530 The European Union further submits that the Panel ignored a number of statements 
contained in the COWI 2010 Report that indicated that the IC exception was potentially available 
to many Inuit communities.531 The European Union further notes that the Panel gave an 
inappropriate value to COWI's statements. The European Union underscores that COWI did not have the authority, the qualifications, or the mandate to engage in the legal interpretation of the 
Basic Regulation. Moreover, the European Union highlights that the Implementing Regulation, 
which specifies the conditions for qualifying for the IC exception, was adopted well after the COWI 2010 Report was issued. The statement contained in the COWI 2010 Report was thus "mere 
speculation".
532 With respect to the Parliament Report and the COWI 2008 Report on the 
assessment of the potential impact of a ban of products derived from seal species, the European Union claims that it is unable to identify how these sources lend support to the Panel's findings, as the propositions that the Panel attributes to those sources cannot be found in them. The European 
Union, therefore, submits that the Panel failed to provide reasoned and adequate explanations, 
and that these sources do not support the Panel's conclusion.  
2.171.  With respect to the actual application of the IC exception, the European Union argues that 
the fact that the Danish customs authorities, ba sed on their interpretation of the Implementing 
Regulation, processed imports based on certificates issued by the Greenlandic authorities prior to a Greenlandic entity obtaining recognized body status, says very little as to whether the 
                                               
523 European Union's other appellant's submission, para. 224 (quoting Panel Reports, para. 7.308).  
524 European Union's other appellant's submission, para. 225.  
525 See supra , fns 221 and 520. 
526 European Union's other appellant's submission, para. 226 (quoting Panel Reports, para. 7.315).  
527 European Union's other appellant's submission, para. 227.  
528 European Union's other appellant's submission, para. 228. 
529 European Union's other appellant's submission, para. 228.  
530 European Union's other appellant's submission, para. 236; COWI 2010 Report, p. 84.  
531 European Union's other appellant's submission, para. 237 (referring to COWI 2010 Report, pp. v, 24, 
27, 30, and 33).  
532 European Union's other appellant's submission, para. 239.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  IC exception only benefits imports from Greenland. The European Union notes that it took more 
than two years for the EU authorities to process Greenland's request to become a recognized body. Further, the EU authorities issued explicit invitations and made substantial efforts so that entities in Canada could also become recognized bodies, and the Canadian Inuit could benefit from the 
IC exception. The European Union argues that this  shows that the application of the IC exception 
does not reveal that the IC exception could on ly benefit Greenland. The European Union submits 
that the above errors made by the Panel in its assessment of the even-handedness of the 
IC exception were material and that the Panel's reasoning and ultimate conclusion cannot stand.  
2.172.  The European Union alleges that the Panel erred in finding that "the degree of the 
commercial aspect of [Greenland's IC] hunts is comparable to that of the commercial hunts", and that "the Inuit hunt [in Greenland] bears the greatest similarities to the commercial characteristics 
of commercial hunts."
533 The European Union notes that these Panel findings rested on three 
factors: (i) the level of development of the commercial aspect of Greenlandic seal hunts; (ii) the volume of sealskins trade in Greenland; and (iii ) the integrated nature of the seal product 
industries in Greenland, Canada, and Norway. The European Union submits that the Panel wrongly 
assessed these factors and provided incoherent reasoning, thus failing to make an objective assessment of the facts.
534 
2.173.  The European Union submits that, with respect to the development of the commercial 
aspect of Greenlandic seal hunts, the Panel made "a fundamental mistake".535 The European Union 
points out that the source on which the Panel relied for its statement that "over 50 per cent of the hunted seals in Greenland are sold to the tannery of Great Greenland A/S"
536 actually states that 
"the skins from just over half of all caught seals are sold by the hunters to the tannery of Great 
Greenland A/S".537 The European Union emphasizes that, while half of the skins are sold, the other 
parts of the seals hunted by Inuit in Greenland are still consumed by them. For the European 
Union, this indicates that the commercial aspect of Greenland's hunts is not comparable to that of 
commercial hunts, where 100% of the seals hunted are sold in their entirety.538  
2.174.  With respect to the volume of sealskins traded in Greenland, the European Union points 
out that the volumes in Greenland are relatively constant, whereas the volumes in Canada reflect 
market conditions. For the European Union, the relative inelasticity of the production of seal products in Greenland is an "important difference" that the Panel ignored when relying on the volume of the hunts in Greenland as a basis to conclude that such a volume "was comparable to 
that of commercial … hunts in Canada".
539 The European Union further alleges that the Panel 
disregarded the fact that Greenland provides subs idies to support Inuit hunters in order to support 
the subsistence of Inuit communities and allow them to preserve their cultural identity. Finally, the 
European Union points to the fact that the volume of seals hunted in commercial hunts is produced 
by a few hunters killing many seals in a short period of time, whereas the volume of seals hunted by Inuit communities derives from a large population that hunts throughout the year. The 
European Union submits that, in ignoring these factors, the Panel wrongly assessed the relevance 
of the volume of sealskins traded in Greenland. 
2.175.  With respect to the allegedly integrated nature of the seal product industries in Greenland, 
Canada, and Norway, the European Union alleges th at the Panel's findings are not supported by 
the evidence on the record. The European Union no tes that, in response to the question asked by 
the Panel on this issue, the complainants recognized that there was "little direct cooperation" between their industries and Greenland.
540 Moreover, the European Union points out that the one 
example of integration that the Panel mentions – the purchase of sealskins from Canada by Great 
Greenland A/S – was a "one-off situation in the rather distant past", and was not based on general 
                                               
533 European Union's other appellant's submission, para. 248 (quoting Panel Reports, paras. 7.313 
and 7.317, respectively).  
534 European Union's other appellant's submission, para. 248.  
535 European Union's other appellant's submission, para. 250.  
536 European Union's other appellant's submission , para. 249 (quoting Panel Reports, para. 7.309). 
537 European Union's other appellant's submission, para. 250 (quoting Greenland 2012 Seal 
Management Report, p. 25). (emphasi s added by the European Union) 
538 European Union's other appellant's submission, para. 251 (referring to Panel Reports, para. 7.240; 
and Nunavut Economy Fact Sheet (Panel Exhibit CDA-102), p. 1). 
539 European Union's other appellant's submission, para. 257 (quoting Panel Reports, para. 7.310).  
540 European Union's other appellant's submission, para. 264; Canada's and Norway's responses to 
Panel question No. 152. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  commercial considerations, but rather on an attempt to deal with a temporary crisis in a way that 
avoided laying off local workforce.541  
2.176.  Finally, the European Union submits that th e Panel's conclusion that "the purpose of seal 
hunts in Greenland has characteristics that are closely related to that of commercial hunts" 
contradicts its earlier conclusion that the primary purpose of seal hunts conducted by Inuit 
communities, including in Greenland, was the "subsi stence" of those communities in terms of their 
culture and tradition as well as their livelihood.542 According to the European Union, the Panel's 
reasoning is therefore incoherent. 
2.177.  Consequently, the European Union requests the Appellate Body to find that the Panel failed 
to make an objective assessment of the matter, co ntrary to Article 11 of the DSU, and to reverse 
the Panel's finding that the IC exception was not designed and applied in an even-handed 
manner.543 
2.4.3  Article I:1 and Arti cle III:4 of the GATT 1994 
2.178.  The European Union requests the Appellate Body to reverse the Panel's finding that the 
legal standard for the non-discrimination obligati on under Article 2.1 of the TBT Agreement does 
not "equally apply" to claims under Articles I:1 and III:4 of the GATT 1994.544 In addition, the 
European Union requests the Appellate Body to reverse the Panel's conclusion that the measure at 
issue is inconsistent with Article I:1 of the GATT 1994 because it does not "immediately and 
unconditionally" extend the same market access advantage to Canadian and Norwegian seal products compared to seal products originating from Greenland.
545 
2.179.  The European Union submits that the Panel' s interpretation of Articles I:1 and III:4 is in 
error for the following reasons: (i) it is contrary to established Appellate Body jurisprudence under 
Article III:4 of the GATT 1994; (ii) it fails to take account of the context provided by Article III:1 of the GATT 1994; and (iii) it is incoherent with the interpretation of Article 2.1 of the TBT Agreement 
and renders that provision irrelevant.  
2.180.  The European Union contends that, in Dominican Republic – Import and Sale of Cigarettes , 
the Appellate Body clarified that a detrimental effect on imports alone does not indicate a de facto  
"less favourable treatment" of imports under Article III:4.
546 This finding, according to the 
European Union, is in line with the Appellate Body's earlier finding in EC – Asbestos  that "a 
Member may draw distinctions between products which have been found to be 'like', without, for this reason alone, according to the group of 'lik e' imported products 'less favourable treatment' 
than that accorded to the group of 'like' domestic products."
547 The European Union observes that, 
in US – Clove Cigarettes , the Appellate Body clarified that, in Dominican Republic – Import and 
Sale of Cigarettes , a violation of Article III:4 was not established because the detrimental impact 
on competitive opportunities for "like" imported products was not attributable to the specific 
measure at issue.548 For the European Union, this confirms that the analysis under Article III:4 
goes beyond a consideration of whether there has been a detrimental impact on the competitive 
opportunities for "like" imported products. 
2.181.  The European Union submits further that the Panel erred in its interpretation of Articles I:1 
and III:4 because it failed to take into account  the context of Article III:1 of the GATT 1994. In 
this regard, the European Union points out that, in Japan – Alcoholic Beverages II , the Appellate 
Body considered that the general principle reflected in Article III:1 – that internal measures should 
                                               
541 European Union's other appellant's submission, para. 269.  
542 European Union's other appellant's submission, para. 272 (quoting Panel Reports, para. 7.313).  
543 European Union's other appellant's submission, para. 275. 
544 European Union's other appellant's submission, para. 310; Panel Reports, para. 7.586. 
545 European Union's other appellant's submission, paras. 314 and 315 (referring to Panel Reports, 
para. 7.600). 
546 European Union's other appellant's submission, paras. 292 and 293 (quoting Appellate Body Report,  
Dominican Republic – Import  and Sale of Cigarettes , para. 96). 
547 European Union's other appellant's submission, para. 294 (quoting Appellate Body Report, EC – 
Asbestos , para. 100). 
548 European Union's opening statement at the oral hearing. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  not be applied so as to afford protection to domestic production – informs the rest of Article III.549 
Further, in EC – Asbestos , the Appellate Body confirmed the relevance of Article III:1  
for the interpretation of Article III:4.550 The European Union notes that the Appellate Body has 
found that a determination of whether a measure is applied so as to afford protection to domestic  
production – within the meaning of Article III:1 – requires an inquiry into the design, architecture, 
and revealing structure of a measure. Moreover, panels should, in conducting this inquiry, give full consideration to all the relevant facts and circumstances of a given case.
551 The European Union 
submits that this test "corresponds to the second step of the de facto  discrimination analysis" that 
the Appellate Body has found to be requir ed under Article 2.1 of the TBT Agreement.552 Thus, the 
Panel's suggestion that this analysis is unnecessary for a finding of de facto  discrimination under 
Articles III:4 and I:1 "clearly fails to take account" of the context of Article III:1.553 
2.182.  The European Union also contends that th e Panel's interpretation of Articles I:1 and III:4 
fundamentally misunderstands the contextual relationship between the GATT 1994 and the 
TBT Agreement. Relying on the Appellate Body's finding in US – Clove Cigarettes  that the 
GATT 1994 and the TBT Agreement should be interp reted in a coherent and consistent manner, 
the European Union argues that the Panel failed to put forward any convincing reason as to why the interpretation of Articles III:4 and I:1 should be "clinically isolated from the context given by 
Article 2.1 of the TBT Agreement", and lead to diverging results with regard to de facto  
discrimination.
554  
2.183.  According to the European Union, under the Panel's interpretation, a technical regulation 
could be considered non-discriminatory under the ag reement specifically addressing these types of 
measures, but still violate the GATT 1994 addressing goods-related measures. The European Union 
explains that the list of possible legitimate objectives that may factor into an analysis under Article 2.1 of the TBT Agreement is open, in contrast to the closed list of objectives enumerated 
under Article XX of the GATT 1994. Thus, the Panel's "divergent approach to de facto  
discrimination" could lead to a situation where, und er Article 2.1 of the TBT Agreement, a technical 
regulation that has a detrimental impact on import s would be permitted if such detrimental impact 
stems from a legitimate regulatory distinction, while, under Articles I:1 and III:4 of the 
GATT 1994, the same technical regulation would be prohibited if its objective did not fall within the subparagraphs of Article XX of the GATT 1994.
555 The European Union concedes that such an 
"asymmetrical outcome" would not arise in the context of these disputes "since the Panel rightly 
considered that the objective of the EU Seals Regime fell within the list of objectives of 
Article XX".556 However, under the Panel's interpretation of Articles I:1 and III:4, the regulatory 
space under the TBT Agreement could, in other case s, be "significantly" wider than the regulatory 
space under the GATT 1994.557 This would "render Article 2.1 of the TBT Agreement irrelevant" as 
complainants would have a strong incentive not to  invoke Article 2.1 of the TBT Agreement, and, 
instead, to bring claims under the GATT 1994, even if the measure at issue qualified as a technical 
regulation.558 
2.184.  Finally, the European Union notes that its proposed interpretation of Articles I:1 and III:4 
of the GATT 1994 requiring, in respect of de facto  discrimination claims, a determination of 
whether any detrimental impact on imports resulting from the measure stems exclusively from a 
legitimate regulatory distinction leaves "significant space" for Article XX, which would remain 
                                               
549 European Union's other appellant's submission, paras. 295-297 (referring to Appellate Body Report, 
Japan – Alcoholic Beverages II , p. 18, DSR 1996:I, p. 111). 
550 European Union's other appellant's submission, paras. 295-297 (referring to Appellate Body Report, 
EC – Asbestos , para. 100). 
551 European Union's other appellant's submission, para. 299 (referring to Appellate Body Report, 
Japan – Alcoholic Beverages II , p. 29, DSR 1996:I, p. 120). 
552 European Union's other appellant's submission, para. 300 (referring to Appellate Body Report, US – 
Clove Cigarettes , para. 182). 
553 European Union's other appellant's submission, para. 300. 
554 European Union's other appellant's submission, para. 304. 
555 European Union's other appellant's submission, para. 307. 
556 European Union's other appellant's submission, para. 307. 
557 European Union's other appellant's submission, para. 307. 
558 European Union's other appellant's submission, para. 308. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  applicable to provisions not relating to discrimination, for example, Article XI and to de jure  
discrimination claims.559 
2.185.  With regard to the Panel's finding th at the requirements of the IC exception are 
inconsistent with Article I:1 of the GATT 1994, the European Union contends that this finding is 
based on the Panel's incorrect interpretation of the legal standards under Articles I:1 and III:4 of 
the GATT 1994. Consequently, the European Union requests the Appellate Body to reverse the Panel's finding that the measure at issue is inconsistent with Article I:1 of the GATT 1994 because 
it does not immediately and unconditionally exte nd the same market access advantage accorded 
to seal products of Greenlandic origin to like seal products of Canadian and Norwegian origin.
560 
2.4.4  Article XX of the GATT 1994 2.4.4.1  The Panel's analysis under the chapeau of Article XX 
2.186.  In the event that the Appellate Body upholds 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 was not justified under Article XX(a) of the GATT 1994 because it fails to meet 
the requirements of the chapeau.
561 Given that, in its analysis under the chapeau of Article XX, 
"the Panel applied mutatis mutandi the analysis that it had conducted in the context of Article 2.1 
of the TBT Agreement"562, the European Union refers to its other appeal of the Panel's findings of 
even-handedness under Article 2.1 of the TBT Agreement.563 The European Union requests, if the 
Appellate Body accepts its arguments with respect to Article 2.1 and reverses the Panel's finding that the IC exception was not designed and appl ied in an even-handed manner, that it also 
reverse the Panel's finding under the chapeau of Article XX(a).
564 Finally, since the IC exception is 
"applied in a reasonable, impartial and harmonious manner, where all Inuit communities can 
equally benefit from the IC exception", the Eu ropean Union requests the Appellate Body to 
complete the legal analysis under the chapeau of  Article XX(a) and find that the IC exception 
meets the requirements under Article XX(a) of the GATT 1994, including its chapeau.565 
2.4.4.2  The Panel's analysis under Article XX(b)  2.187.  In the event that the Appellate Body uphold s the Panel's finding that the EU Seal Regime is 
inconsistent with Article I:1 of the GATT 1994, and reverses the Panel's finding that the EU Seal 
Regime is provisionally justified under Article XX(a) of the GATT 1994, 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)".
566 The European Union takes issue with the three reasons provided by the 
Panel in support of its appealed finding, and claims that the Panel failed to conduct an objective 
assessment of the matter as required by Article 11 of the DSU. First, the European Union considers that the Panel's statement that "the European Union never submitted in this dispute that the 
protection of seal welfare was as such the objective of the EU Seal Regime" is "factually 
inaccurate".
567 The European Union asserts that it "identified the objective of contributing to the 
welfare of seals as being 'simultaneously a legitimate objective on its own and one of the 
instruments to achieve the first, broader and overarching, objective.'"568 Second, the European 
Union argues that the Panel could "hardly justify its finding that the European Union failed to establish a prima facie case" merely on the basis that it found the objective of the EU Seal Regime 
was to address EU public moral concerns regarding seal welfare, and that this objective fell within 
                                               
559 European Union's other appellant's submission, para. 309. 
560 European Union's other appellant's submission, para. 314 (referring to Panel Reports, para. 7.600). 
561 European Union's other appellant's submission, para. 316 (referring to Panel Reports, para. 7.650). 
562 European Union's other appellant's submission, para. 317 (referring to Panel Reports, para. 7.649). 
563 European Union's other appellant's submission, para. 318. 
564 European Union's other appellant's submission, para. 318. 
565 European Union's other appellant's submission, fn  336 to para. 319 (referring to ibid., paras. 191 
and 192). 
566 European Union's other appellant's submission , para. 320 (quoting Panel Reports, para. 7.640). 
567 European Union's other appellant's submission, paras. 326 and 328, respectively (referring to 
European Union's second written submission to the Panel, para. 273). 
568 European Union's other appellant's submission, pa ra. 328 (quoting European Union's second written 
submission to the Panel, para. 273). (emphasis adde d by the European Union in its other appellant's 
submission) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  the scope of Article XX(a).569 The European Union notes the Panel's recognition that a measure 
may pursue more than one objective, adding that there is not any reason why a measure cannot be justified "simultaneously under more than on e of the grounds listed in Article XX of the 
GATT".
570 According to the European Union, this reason, "[a]t most", could have justified 
exercising judicial economy with respect to its defence under Article XX(b).571  
2.188.  The European Union further submits that the Panel's observation on the "limited" extent of 
the European Union's argument is also "incorrect as a matter of fact"572, because, with respect to 
Article XX(b), the European Union "cross-referred to arguments and evidence previously submitted 
under Article 2.2 [of the TBT Agreement] and … Article XX(a) [of the GATT 1994]".573 The 
European Union contends that the arguments and evidence analysed by the Panel for its "contribution" analysis under Article 2.2 "would have allowed the Panel to determine whether the 
EU Seal Regime was 'necessary' to attain the objective mentioned under … Article XX(b) [of the 
GATT 1994]".
574 Similarly, the European Union adds, the arguments and evidence examined by the 
Panel under its chapeau analysis are equally releva nt, "irrespective of whether the EU Seal Regime 
is deemed necessary to achieve the objective mentioned under letter a) and/or under letter b) 
of … Article XX [of the GATT 1994]".575 For these reasons, in the event that the two conditions for 
its other appeal under Article XX(b) are met, the European Union requests the Appellate Body to 
reverse the Panel's finding that the European Union failed to establish a prima facie case under 
Article XX(b) and to complete the legal analysis and find that the EU Seal Regime is justified under Article XX(b) of the GATT 1994.
576 
2.5  Arguments of Canada – Appellee 
2.5.1  Annex 1.1 to the TBT Agreement 
2.189.  Canada requests the Appellate Body to uphold the Panel's finding that the EU Seal Regime 
is a "technical regulation" within the meaning of  Annex 1.1 to the TBT Agreement. Canada agrees 
with the Panel's interpretation of the terms "produ ct characteristics" and "applicable administrative 
provisions" and considers that the Panel correctly applied Annex 1.1 to the TBT Agreement to the facts of the case in finding that the measure at issue constitutes a "technical regulation".  
2.190.  Canada submits that the European Union "incorrectly characterizes the Panel's conclusion 
as being that 'any document containing administrative provisions relating to identifiable products' will constitute applicable administrative provisions under Annex 1.1".
577 Instead, Canada argues, 
the Panel correctly found that the EU Seal Regime "[lays] down a product characteristic in the 
negative form by requiring that 'all products not contain seal'".578 Moreover, the Panel correctly 
found that, in order to place seal-containing products on the EU market, "the requirements of the IC and MRM exceptions had to be met and certain administrative provisions (such as the criteria to 
be met to qualify for an exception and the production of an attesting document) had to be 
followed."
579 I n  C a n a d a ' s  v i e w ,  t h e  a d m i n i s t r a t i v e  p r o v i s i o n s  i n  t h e  E U  S e a l  R e g i m e  " a p p l y  t o  
product characteristics in the sense that the administrative provisions operate to ensure that 
products that exhibit the product characteristic of containing seal satisfy the criteria set out in the 
exceptions".580 According to Canada, the European Union was, therefore, "misguided" in its 
concern that the Panel's reasoning leads to an "over-inclusive" characterization of "applicable 
                                               
569 European Union's other appellant's submission, para. 329. 
570 European Union's other appellant's submission, para. 329 (referring to Panel Reports, para. 7.400). 
571 European Union's other appellant's submission, para. 329. 
572 European Union's other appellant's submission, para. 330. 
573 European Union's other appellant's submission, para. 330. 
574 European Union's other appellant's submission, para. 330. 
575 European Union's other appellant's submission, para. 330. 
576 European Union's other appellant's submission, para. 331. 
577 Canada's appellee's submission, para. 34 (quoting  European Union's other appellant's submission, 
para. 53). 
578 Canada's appellee's submission, para. 37 (quoting Panel Reports, para. 7.106, in turn referring to 
Norway's second written submission to the Panel, paras. 154 and 155). 
579 Canada's appellee's submission, para. 39. 
580 Canada's appellee's submission, para. 40 (refe rring to European Union's other appellant's 
submission, para. 55). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  administrative provisions", as the administrative  provisions under the EU Seal Regime apply to 
"products that contain seal" that meet the requirements of one of the exceptions.581  
2.191.  Canada further argues that, by focusing on a single sentence in paragraph 7.110 of the 
Panel Reports, the European Union fails to take into account the broader context of the Panel's 
interpretation of "product characteristics", which includes, in Canada's view, "the Panel's findings 
that the exceptions define the scope of the prohib itive aspects of the EU Seal Regime, and … also 
set out the 'administrative provisions with which compliance is mandatory'".582 Canada maintains 
that the Panel described the criteria under the exceptions as identifying the seal products that may 
be placed on the EU market "by defining the categories of seal that can be used as an input".583 In 
Canada's view, the Panel "carefully considered th e interplay among these various elements of the 
EU Seal Regime" prior to finding that the measure as a whole lays down product characteristics.584 
The European Union's focus on the Panel's reference to the criteria under the exceptions as 
constituting "objectively definable features" of seal products is therefore, according to Canada, a mischaracterization of the Panel's overall analysis  of the role played by the exceptions in the 
EU Seal Regime.
585 
2.192.  Lastly, Canada argues that the Panel correctly recalled the Appellate Body's conclusion in 
EC – Asbestos  that a measure must be examined as "an integrated whole" to determine whether it 
constitutes a technical regulation.586 Canada agrees with the Panel that the Appellate Body report 
in EC – Asbestos "does not suggest that for a measure consisting of a ban and certain exceptions 
to qualify as a technical regulation, both the prohibition and the exceptions must individually lay down product characteristics or their related PPMs".
587 In addition, Canada maintains that the 
Panel was correct in relying on the measure at issue in EC – Asbestos  to describe the EU Seal 
Regime, which "operates as a ban on seal products, combined with an exception and two derogations, forming three conditions prescribed in Article 3 of the Basic Regulation".
588 
2.193.  In Canada's view, the EU Seal Regime and the measure at issue in EC – Asbestos are 
"essentially the same in all material respects relevant to determining whether a measure  is a technical regulation".
589 According to Canada, both measures: (i) prohibit "pure"  
products – i.e. asbestos fibres or seal products containing only seal inputs; (ii) prohibit products 
from exhibiting an intrinsic characteristic – i.e. containing asbestos fibres or seal inputs, thus laying down product characteristics in a negative form; (iii) contain exceptions to the prohibition that set out criteria to be met to qualify for mark et access – i.e. the absence of a safer substitute 
for asbestos fibres, or the identity of the hunter and purpose of the hunt for seal products; and 
(iv) set out administrative provisions with which compliance is mandatory to allow a product containing the proscribed characteristic to be placed on the relevant market. Canada notes that 
"the exceptions under both the Asbestos measure and the EU Seal Regime do not themselves set 
out product characteristics" but ,rather, "merely set out criteria that must be met in order for the product to contain the otherwise proscribed characteristic".
590 In Canada's view, the Panel properly 
engaged in a thorough examinatio n of the discrete elements of the EU Seal Regime, including the 
prohibitive and permissive aspects of the measure, the criteria to be applied to determine whether a given product is permitted to contain seal inputs, and the administrative provisions, in order to reach its conclusion on whether the EU Seal Regime constitutes a technical regulation. 
                                               
581 Canada's appellee's submission, para. 41 (refe rring to European Union's other appellant's 
submission, para. 56). 
582 Canada's appellee's submission, para. 44. 
583 Canada's appellee's submission, para. 45 (quoting Panel Reports, para. 7.110). 
584 Canada's appellee's submission, para. 46 (referring to Panel Reports, para. 7.111). 
585 Canada's appellee's submission, para. 47. 
586 Canada's appellee's submission, para. 50 (quoting Panel Reports, para. 7.99). 
587 Canada's appellee's submission, para. 51 (quoting Panel Reports, para. 7.100). 
588 Canada's appellee's submission, para. 54 (quoting Panel Reports, para. 7.56). 
589 Canada's appellee's submission, para. 62 (refe rring to European Union's other appellant's 
submission, para. 85; Panel Reports, fn 153 to para. 7.106, and paras. 7.108 and 7.109; and Appellate Body 
Report, EC – Asbestos , paras. 72-74).  
590 Canada's appellee's submission, para. 60. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.194.  In the event that the Appellate Body were to reverse the Panel's finding that the EU Seal 
Regime lays down product characteristics and/or applicable administrative provisions, Canada requests the Appellate Body to complete the lega l analysis and find that the EU Seal Regime 
constitutes a "technical regulation" within th e meaning of Annex 1.1 to the TBT Agreement.
591 
2.5.2  Article 2.1 of the TBT Agreement 
2.195.  With respect to the European Union's appeal of the Panel's finding that the IC exception 
does not bear a rational relationship to the objective of addressing the EU public moral concerns 
regarding seal welfare, Canada submits that the problem with the European Union's conception of 
a "moral norm" is that "it is open-ended, and therefore not a standard at all."592 Canada argues 
that, "[i]f it is simply left to the legislator to decide when the suffering of animal[s] is justified, the content of the so-called moral standard becomes inherently subjective and therefore arbitrary."
593 
As Canada sees it, the Panel found that the IC exception is not grounded in public moral concerns, 
but in a decision of the legislator that the pursuit of the public morals objective should not damage the interests of Inuit and other indigenous communities.  
2.196.  Canada further submits that the European Union does not accurately characterize the 
previous jurisprudence on the notion of "public morals".
594 Canada highlights that a panel is only 
required to give some scope to a Member's definition of its public morals. Finally, Canada notes 
that the Panel did not look directly to moral doctrine to determine the objective of the EU Seal 
Regime, but instead based its determination on th e evidence presented by the European Union. 
According to Canada, this evidence persuaded the Panel to find that animal welfare is an issue of an ethical and moral nature in the European Union, but did not demonstrate that protecting the 
interests of Inuit and other indigenous communities also fell within the scope of the objective of 
addressing the EU public moral concerns regarding seal welfare.  
2.197.  Canada responds to the European Union's appeal of the Panel's conclusion that the 
IC exception is not designed and applied even-h andedly by arguing that "the European Union's 
conception of the "even-handedness" test is not reflected in the jurisprudence."
595 Canada further 
considers that the terminology introduced by the European Union does not add anything to, or 
clarify, the legal standard as established by the Appellate Body.596 Canada also takes issue with 
the European Union's suggestion that the test of  even-handedness focuses on the relationship 
between the regulatory distinction and the objectiv e that the distinction pursues. Canada argues 
that the question is instead whether the regulatory distinction can be shown to be rationally 
connected to the objective of the measure. At  the same time, Canada acknowledges that the 
Panel's finding of a lack of even-handedness in this case was based on its consideration of "the rationale or cause of the exception", namely, the subsistence of Inuit and other indigenous 
communities.
597 According to Canada, the Panel contrasted this rationale with its finding that the 
IC exception, as designed and applied, is de facto  available exclusively to Greenland, and thus 
effectively allows only large-scale, sophisticated Inuit sealing operations to take advantage of the 
market access it offers. According to Canada, this approach is entirely consistent with the 
Appellate Body's analysis in previous disputes , which focused on the question of whether the 
design and application of the measure effectively addressed the specific problem or concern that the responding party claimed to be addressing.
598 
2.198.  With respect to the European Union's argument that the Panel erred by discounting the 
lack of action by Canadian authorities and Canadian Inuit authorities to seek access to the EU market under the IC exception, Canada submits that the Panel did in fact consider the 
behaviour of the Canadian authorities. Canada further alleges that the European Union has 
misunderstood the thrust of the Panel's reasonin g. According to Canada, the Panel's concerns 
                                               
591 Canada's appellee's submission, para. 66. 
592 Canada's appellee's submission, para. 84. 
593 Canada's appellee's submission, para. 84. 
594 Canada's appellee's submission, para. 85 (refe rring to European Union's other appellant's 
submission, para. 106, in turn referring to Panel Reports, US – Gambling , para. 6.461; and China – 
Publications and Audiovisual Products , para. 7.759). 
595 Canada's appellee's submission, para. 120. (fn omitted) 
596 Canada's appellee's submission, para. 120.  
597 Canada's appellee's submission, para. 126 (quoting Panel Reports, para. 7.317). 
598 Canada's appellee's submission, para. 127 (referring to Appellate Body Reports, US – Clove 
Cigarettes , para. 225; and US – Tuna II (Mexico) , para. 285).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  about the design and application of the IC exception did not relate to whether Canadian Inuit seal 
products formally qualified for EU market access und er the IC exception, but rather to the question 
of whether they could benefit from it in practice. As Canada sees it, the Panel concluded that they could not because the IC exception was designed and applied in such a way that only large-scale, 
commercially oriented seal-hunting operations possess the wherewithal to do so. Canada 
highlights the Panel's reference to a statement by the Canadian Inuit that their hunt is too small to "generate market interest alone on an international scale", and that "market realities are ꞌmajor 
factors contributing to the ineffectiveness of the Inuit exemption to the EU seal ban ꞌ".
599 According 
to Canada, the Panel agreed that there is "little point" in Canadian Inuit applying for the IC exception if, due to its design and applicat ion, they are unable to take advantage of it.
600 
Canada alleges that, more generally, the actions of a WTO Member or private actors should not 
form the basis for an assessment of whether the challenged measure discriminates against that 
WTO Member. 
2.199.  With respect to the European Union's argument that the Panel erred by relying on the 
degree of similarities of the seal hunt in Greenland with commercial hunts, Canada submits that 
the Panel conducted this examination as a means to assess what would be required for a given Inuit hunt to be able to take advantage of the IC exception. Canada faults the European Union for 
equating access with formal compliance with the criteria set out in the IC exception. Canada 
argues that, for the Panel, this was not sufficien t, as even-handedness required equal access in 
practice. Canada submits that the factors examined by the Panel relate to the ability of Inuit communities to get their products to the EU market, and that these factors – in particular the 
degree of commercialization of the seal hunt in Greenland – are highly relevant to determine the 
even-handedness of the regulatory distinction. 
2.200.  Canada responds that the European Union mischaracterizes the Panel's approach to the 
arguments and evidence concerning the scope of the EU public's moral concerns. Canada argues 
that, contrary to what the European Union suggests, the Panel did not rely "exclusively" on the two opinion polls and the public consultation cited by the European Union.
601 Rather, the Panel based 
its conclusion on "all the evidence before it".602 According to Canada, the Panel found that the polls 
were of "limited probative value", and that the "r eliability of the results" had not been clearly 
demonstrated.603 
2.201.  Canada notes that the European Union does not challenge the finding that the polls cited in 
the Royal Commission Report have limited probative value. Instead, Canada argues, the European 
Union selectively identifies aspects from the two polls that, in its view, do not support the Panel's finding that the EU public's concerns about seal welfare relate to seal hunting in general and not to 
any particular type of hunt. Canada submits that the results of the RC poll are "unclear" and "not 
evidently reliable".
604 Canada also points to the fact that the RC poll was conducted in 1985 and 
only included respondents from three EU member States. Canada asserts that the RC poll provides 
"no information on the EU public's views on the mo ral concerns with respect to different types of 
seal hunts".605  
2.202.  With respect to the CSA poll, Canada notes that the specific results in the poll cited by the 
European Union are responses to the question that the Royal Commission found to raise 
"uncertainties".606 In response to the European Union's argument that the Panel failed explicitly to 
state that these uncertainties rendered the CSA poll unreliable, Canada submits that the Panel's finding was due to the failure of the European Union to demonstrate the reliability of the results. 
Canada claims that, as the European Union had presented the Royal Commission Report in support 
of its factual claim, it was incumbent on the European Union to explain why the Panel should disregard the uncertainties. 
                                               
599 Canada's appellee's submission, para. 133 (quoting Nunavut 2012 Report, p. 9).  
600 Canada's appellee's submission, para. 136.  
601 Canada's appellee's submission, para. 96. 
602 Canada's appellee's submission, paras. 96 and 97, respectively. (fn omitted)  
603 Canada's appellee's submission, para. 97 (referring to Panel Reports, fn 676 to para. 7.410).  
604 Canada's appellee's submission, para. 104. (fn omitted) 
605 Canada's appellee's submission, para. 104 (referring  to Canada's opening statement at the second 
Panel meeting, para. 75). 
606 Canada's appellee's submission, para. 106.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.203.  With respect to the Panel's reliance on the results of public surveys, Canada submits that 
the fact that 62% of the respondents stated that  seals should not be hunted for any reason is 
consistent with the Panel's finding that the EU public's moral concerns about the hunt do not vary according to the type of seal hunt. At the same time, Canada argues that the Panel did not rely on 
the evidence from the public consultation to support its "basic" finding on whether the EU public's 
concerns on seal welfare varied with the type of hunt.
607 Canada further submits that the fact that 
the Panel did not explicitly address COWI's comment on the results of the consultation was 
"reasonable in the circumstances", and was within its discretion as the trier of fact.608 
2.204.  Canada responds that the European Unio n's claims that the Panel committed material 
inaccuracies that led to erroneous factual determinations and incoherent reasoning are without merit. First, Canada submits that the Panel did not say that each of the elements that it  
considered – the text, legislative history, and a pplication of the IC exception – demonstrated a 
lack of even-handedness. Instead, according to Ca nada, the Panel only stated that it considered 
these three elements. With respect to the text of the IC exception, Canada notes that the 
European Union fails to mention the Panel's observation that the "scope and meaning of the 
'subsistence' criterion under the requirements [o f the IC exception] is not defined under the 
measure", as well as the Panel's reference to an observation in the COWI 2010 Report to the effect 
that, in order to fall into the "subsistence" ca tegory, a hunt must not be "organized on a large 
scale".
609 According to Canada, the Panel's scrutiny of the text of the IC exception established a 
"crucial element" in its analytical framework.610 
2.205.  With respect to the Panel's examination of  the legislative history of the IC exception, 
Canada submits that the European Union misconstrues the findings of the COWI 2010 Report. 
According to Canada, COWI's comments to the effect that Greenland would be the only Inuit community that would be able to make use of the IC exception were based not only on the 
potential stringency of the compliance regime, but also on the relative sizes of the Canadian and 
Greenlandic Inuit hunts. Moreover, even though COWI could not have known at that time which compliance regime the European Union would even tually adopt, Canada submits that the Panel 
could rely on COWI's statements given that it had "full knowledge" of the actual compliance 
regime that the European Union had put in place.
611 Canada also disputes the European Union's 
claim that other statements in the COWI 2010 Report express the view that the Canadian Inuit will benefit from the IC exception. According to Cana da, those statements only suggest that Canadian 
Inuit products might be able to comply with the requirements of the IC exception. Canada submits 
that those statements were, therefore, not probative considerations in the Panel's assessment of even-handedness.  
2.206.  With respect to the actual application of the IC exception, Canada also contests the 
European Union's claim that the Panel wrongly suggested that the European Union had favoured Greenlandic seal products in applying the exception. According to Canada, the Panel made no such 
suggestion. Canada submits that the Panel merely considered the uncontroverted fact that 
Greenlandic seal products had been processed in  advance of obtaining approval to enter the 
EU market in order to confirm that Greenland is a de facto  beneficiary of the IC exception. Canada 
argues that, since the evidence does not contradict  the Panel's finding, there is no violation of 
Article 11 of the DSU. In sum, Canada submit s that the Panel did not incorrectly assess the 
evidence and that, even if there were errors, they were not material. 
2.207.  Canada considers that the European Union's challenge to the Panel's findings concerning 
the commercial aspects of Greenland's hunts is entirely without merit. With respect to the level of 
development of the commercial aspect of Greenland's hunts, Canada takes issue with the way in which the European Union contrasts the fact that only seal skins are processed on an industrial 
scale in Greenland with the conditions in commercial hunts. Canada alleges that it is also true for 
commercial hunts that only certain parts of the seal are commercialized.
612 Canada notes, for 
example, that seal meat has been commercialized only to a very limited extent.613 Canada adds 
                                               
607 Canada's appellee's submission, para. 110.  
608 Canada's appellee's submission, para. 112.  
609 Canada's appellee's submission, para. 152 (quoting Panel Reports, para. 7.308 and fn 486 thereto).  
610 Canada's appellee's submission, para. 152.  
611 Canada's appellee's submission, para. 157.  
612 Canada's appellee's submission, para. 167 (referring  to Canadian Seal Harvest Overview, pp. 3-4). 
613 Canada's appellee's submission, para. 167 (referring to Canada's first written submission to the 
Panel, paras. 68-70; and Canadian  Seal Harvest Overview, p. 5). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  that, to the extent that commercial sealers retain the meat from seal carcasses, they have done so 
largely for personal consumption.  
2.208.  With respect to the volume of sealskins traded, Canada also alleges that the reasons why 
Greenland's seal product exports are limited to seal skins have less to do with the diversion of 
other products towards subsistence, and more to do with the fact that the Greenlandic seal 
industry faces logistical challenges in collecting fresh blubber quickly enough to refine it into oil.614 
Canada further asserts that commercialized seal products are not limited to skins, given that teeth 
and claws are used to make products for the tour ist industry, and the meat, blubber, and offal are 
sold in local markets and restaurants, as well as in larger supermarkets.615  
2.209.  Canada further points out that the European Union neglects to address the many other 
considerations that led the Panel to describe the Greenlandic seal hunt as exhibiting characteristics 
that are closely related to those of commercial hunts. In this regard, Canada notes the Panel's 
finding that Greenland has 2,100 paid full-time hunters, who are licensed professionals and who kill roughly 80% of all seals hunted in Greenland.
616 Canada further points to the presence of the 
government-owned Great Greenland A/S, which operates a state-of-the-art processing facility, as 
well as manufacturing, design, and marketing facilities in Greenland.617 In sum, Canada submits 
that the range of seal products sold by Greenland does not change the commercial characteristics 
of the Greenlandic hunt so that it no longer resembles a commercial hunt.  
2.210.  In response to the European Union's argument that the Panel wrongly assessed the 
relevance of the volume of seal skins traded in Greenland, Canada recalls the Panel's finding that the scale of a hunt is important in determining what a commercial hunt is.
618 Canada submits that 
the fact that Greenland subsidizes the seal hu nt does not mean that there is a qualitative 
difference in the volume of seals killed in Greenland. Canada points to the Greenlandic 
government's intention to provide subsidies in response to "world market prices" as evidence of 
the commercial characteristics of the Greenlandic hunt.619 
2.211.  With respect to the Panel's findings regarding the allegedly integrated nature of the seal 
product industries in Greenland, Canada, and No rway, Canada submits that the European Union 
misrepresents the complainants' submissions on this issue. According to Canada, the fact that 
there is "little direct cooperation" between the Canadian industry and Greenland does not mean that the seal product industries are not integrated.
620 Canada also argues that the Panel's finding 
with respect to the integrated nature of the se al industry is but one element in its overall 
conclusion that the Greenlandic seal industry exhibits characteristics closely related to commercial 
hunts. 
2.212.  Canada responds to the European Union's argument that the Panel provided incoherent 
reasoning in attributing commercial characteristics to what it had previously found to be a 
subsistence hunt by alleging that the European Union fails to take into account the Panel's explanation of what is a subsistence hunt. Canada recalls the Panel's finding that the subsistence 
purpose of IC hunts encompasses not only direct use and consumption of seal products, but also a 
commercial component. Thus, Canada submits that a finding that an Inuit hunt has characteristics closely related to those of commercial hunts is not inconsistent with the Panel's characterization of what constitutes a subsistence hunt. In conclusion, Canada asserts that the Panel did not err in its 
findings regarding the commercial aspect of Greenland's hunts. Canada claims that none of the 
European Union's allegations have merit and, even if  factually correct, they do not rise to the level 
of a violation by the Pane l of Article 11 of the DSU.
621 
                                               
614 Canada's appellee's submission, para. 168 (referring to COWI 2010 Report, p. 44). 
615 Canada's appellee's submission, para. 169 (referring to COWI 2010 Report, p. 29).  
616 Canada's appellee's submission, para. 170 (referring to Panel Reports, para. 7.309; and 
Greenland 2012 Seal Management Report, Figure 14, at p. 25). 
617 Canada's appellee's submission, para. 170 (referring to Panel Reports, para. 7.309; and COWI 2010 
Report, p. 43).  
618 Canada's appellee's submission, para. 173 (referring to Panel Reports, para. 7.310).  
619 Canada's appellee's submission, para. 174 (quoting Greenland 2012 Seal Management Report, 
p. 26).  
620 Canada's appellee's submission, para. 176.  
621 Canada's appellee's submission, para. 184.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.5.3  Article I:1 and Arti cle III:4 of the GATT 1994 
2.213.   Canada submits that the Panel was correct in finding that the legal standard with respect 
to the non-discrimination obligations under Arti cle 2.1 of the TBT Agreement does not equally 
apply to claims under Articles I:1 and III:4 of the GATT 1994.622 Therefore, Canada requests the 
Appellate Body to dismiss the European Union's appeal of the Panel's interpretation of Articles I:1 
and III:4 of the GATT 1994. In th e event that the Appellate Body reverses the Panel's 
interpretation of Articles I:1 and III:4, Canada requests the Appellate Body to complete the legal 
analysis and find that the measure at issue is inconsistent with Articles I:1 and III:4 of the 
GATT 1994.623  
2.214.  Turning to the European Union's argument that the Panel's interpretation of Articles I:1 
and III:4 is not supported by the Appellate Bo dy's jurisprudence, Canada notes that the 
European Union relies largely on jurisprudence developed under Article III:4 to support its 
interpretation of both Articles I:1 and III:4. In doing so, the European Union fails to take account of the fact that Article I:1 does not refer to "treat ment no less favourable", but rather requires that 
"any advantage, favour, privilege or immunity granted to any product originating in or destined to 
another WTO Member be granted immediately  and unconditionally  to the like product of every 
other WTO Member."
624 Canada submits that the Appellate Body has expressly excluded 
consideration of the policy rationale underlying  the challenged measure for the purpose of an 
analysis under Article I:1. Instead, the Appella t e  B o d y  " h a s  b e e n  c l e a r "  t h a t  d i s c r i m i n a t i o n  
between like products originating from different WTO Members is inconsistent with Article I:1 unless the obligation has been waived or the measure falls within one of the exceptions set out in 
the GATT 1994.
625 
2.215.  In addition, Canada submits that the Appellate Body's findings in Dominican Republic – 
Import and Sale of Cigarettes and EC – Asbestos  do not support the European Union's 
interpretation of Articles I:1 and III:4 of the GATT 1994. Canada points out that, in US – Clove 
Cigarettes , the Appellate Body rejected an argument that its finding in Dominican Republic – 
Import and Sale of Cigarettes  stood for the proposition that, similar to Article 2.1 of the 
TBT Agreement, under Article III:4 of the GATT 1994,  a panel is required to inquire into the 
rationale of a measure causing detrimental impact to imported products.626 Instead, the Appellate 
Body found in US – Clove Cigarettes  that the "'treatment no less favourable standard' under 
Article III:4 … prohibits WTO Members from modifying the conditions of competition in the 
marketplace to the detriment of the group of imported products vis-à-vis  the group of domestic 
like products".627  
2.216.  Canada considers that the European Union's reading of the Appellate Body report  
in EC – Asbestos  is also incorrect. That report, according to Canada, indicates that, while a 
distinction between products in itself will not automatically result in a finding of less favourable treatment under Articles I:1 and III:4, a distinction that modifies the conditions of competition in 
the relevant market to the detriment of imported products will result in such a finding.
628 For 
Canada, the Appellate Body was referring to distinctions between products that do not themselves result in less favourable treatment of imported products. However, Canada points out that, in the current disputes, the Panel's factual findings indicate that there is a direct relationship between the 
measure and the detrimental impact on competitive opportunities for Canadian and Norwegian seal 
products.
629 The Panel was therefore correct in not considering, under Articles I:1 and III:4, 
                                               
622 Canada's appellee's submission, para. 194 (referring to Panel Reports, para. 7.586). 
623 Canada's appellee's submission, para. 256. 
624 Canada's appellee's submission, para. 211. (emphasis original) 
625 Canada's appellee's submission, para. 215 (referring, as example, to Appellate Body Report, EC – 
Bananas III , paras. 191 and 206). 
626 Canada's appellee's submission, para. 201 (referring to Appellate Body Reports,  Dominican 
Republic – Import and Sale of Cigarettes , para. 96; and US – Clove Cigarettes , fn 372 to para. 179). 
627 Canada's appellee's submission, para. 203 (quoting Appellate Body Report,  US – Clove Cigarettes , 
para. 179, in turn referring to Appellate Body Report, Dominican Republic – Sale and Import of Cigarettes , 
para. 96). 
628 Canada's appellee's submission, para. 208 (referring to Appellate Body Report, EC – Asbestos , 
para. 100). 
629 Canada's appellee's submission, para. 209 (referring to Panel Reports, paras. 7.159, 7.164, 
and 7.168). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  whether the detrimental impact on imported products stems from a legitimate regulatory 
distinction. 
2.217.  Turning to the European Union's argument that the Panel's interpretation of Articles I:1 
and III:4 disregards the context provided by Ar ticle III:1, Canada submits that the European 
Union misinterprets the Appellate Body's comments in Japan – Alcoholic Beverages  II on the 
relevance of Article III:1 for the interpretation of  the legal standard under Article III:2, second 
sentence.630 In Canada's view, the Appellate Body simply recognized that, under Article III:2, 
second sentence, panels should consider the relevant circumstances, including the design, 
structure, operation, and application of the measure at issue in determining whether the measure at issue results in de facto  discrimination. The Appellate Body did not, according to Canada, 
"suggest this to mean that discrimination under Article III could be justified by regulatory 
distinctions".
631 
2.218.  Canada considers as unfounded the European Union's argument that the Panel's 
interpretation of Articles I:1 and III:4 of the GATT 1994 is incoherent with the interpretation of 
Article 2.1 of the TBT Agreement. In Canada's view, the European Union is suggesting that the 
legal standards under Articles I:1 and III:4 of th e GATT 1994, on the one hand, and Article 2.1 of 
the TBT Agreement, on the other hand, should be th e same. Canada submits, however, that this is 
not supported by the text, context or jurisprudence of Articles I:1 or III:4. 
2.219.   Canada observes that, in setting out the "alleged incoherency" between the de facto  
discrimination standards under the GATT 1994 an d the TBT Agreement, the European Union 
"incorrectly compares" Article 2.1 of the TBT Agreement with Articles I:1 and III:4 of the 
GATT 1994.632 In Canada's view, the proper comparison is between, on the one hand, Article 2.1 
of the TBT Agreement, as interpreted in the light of the preamble of the TBT Agreement, and, on 
the other hand, Articles I:1, III:4, and XX of th e GATT 1994. Canada submits that the Appellate 
Body confirmed in US – Clove Cigarettes  that the balance between the pursuit of trade 
liberalization under Articles I:1 and III:4 and the right to regulate under Article XX "corresponds to" the balance found in Article 2.1 itself, read in the light of the context and object and purpose of 
the TBT Agreement.
633  
2.220.  Canada disagrees with the European Union's argument that, because the list of possible 
legitimate objectives under the TBT Agreement is open while the list of objectives under Article XX 
of the GATT 1994 is closed, accepting the Panel's approach would result in divergent outcomes 
under the TBT Agreement and the GATT 1994, in respect of the same measure.634 Noting the 
Appellate Body's statement in US – Clove Cigarettes  that the TBT Agreement and the GATT 1994 
should be "interpreted in a coherent and consistent manner", Canada submits that "the more 
reasonable view with respect to the scope or range of objectives that may be considered legitimate 
for the purposes of the TBT Agreement is that it mirrors the scope of Article XX of the GATT 1994".
635  
2.221.  Finally, Canada submits that the European Union's argument that the Panel's interpretation 
of Articles I:1 and III:4 of the GATT 1994 would rend er Article 2.1 of the TBT Agreement irrelevant 
is entirely speculative. Further, Canada asserts that this interpretation cannot justify ignoring the textual and contextual differences between th e TBT Agreement and the GATT 1994 simply to 
prevent the possibility that Members may choose no t to invoke Article 2.1 of the TBT Agreement, 
and instead proceed solely under the GATT 1994 in challenging technical regulations. 
                                               
630 Canada's appellee's submission, paras. 218 and 219 (r eferring to European Union's other appellant's 
submission, paras. 299 and 300; and Appellate Body Report,  Japan – Alcoholic Beverages II , p. 29, 
DSR 1996:I, pp. 120-121). 
631 Canada's appellee's submission, para. 220.  
632 Canada's appellee's submission, para. 231. 
633 Canada's appellee's submission, para. 236 (referring to Appellate Body Report, US – Clove 
Cigarettes , paras. 95, 96, and 109). 
634 Canada's appellee's submission, para. 238 (referring to European Union's other appellant's 
submission, para. 307). 
635 Canada's appellee's submission, para. 240 (referring to and quoting Appellate Body Report, US – 
Clove Cigarettes , para. 91). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.222.  Canada, therefore, requests the Appellat e Body to dismiss the European Union's appeal 
that the Panel erred in its interpretation and application of the legal tests under Article I:1 and Article III:4 of the GATT 1994. If, ho wever, the Appellate Body reverses the Panel's finding that 
Articles I:1 and III:4 of the GATT 1994 do not incl ude a "legitimate regulatory distinction" test, 
and consequentially reverses the Panel's findings of violations under these two provisions, Canada 
requests the Appellate Body to complete the legal analysis to find that the detrimental impact to 
the competitive opportunities of Canadian seal products caused by the IC and MRM exceptions 
does not stem exclusively from a legitimate regula tory distinction, and that , therefore, the IC and 
MRM exceptions violate Articles I:1 and III:4 of the GATT 1994.
636  
2.5.4  Article XX of the GATT 1994 2.5.4.1  The Panel's analysis under the chapeau of Article XX 
2.223.  Canada requests the Appellate Body to reject the European Union's other appeal that the 
IC exception is justified under Article XX(a) of the GATT 1994 because it meets the requirements of the chapeau. Canada refers to the arguments set out in its appellant's submission to assert that 
"[t]the Panel's transposition of the ['legitimate regulatory distinction'] test into the chapeau 
analysis is incorrect as a matter of law."
637 According to Canada, the European Union's other 
appeal requests the Appellate Body to repeat this error, while disregarding the proper test under 
the chapeau.638 Even if the Appellate Body reverses the Panel's finding with respect to the 
"legitimate regulatory distinction" test under Ar ticle 2.1 of the TBT Agreement, Canada asserts 
that the Appellate Body must undertake an inde pendent assessment, based on the proper test 
under the chapeau of Article XX, to determine wh ether the IC exception meets the requirements 
under the chapeau. For these reasons, should the Appellate Body reverse the Panel's findings 
under Article 2.1 of the TBT Agreement, and the chapeau of Article XX of the GATT 1994, Canada 
requests the Appellate Body to complete the legal analysis under the chapeau and find that the 
IC exception does not meet its requirements "because it arbitrarily and unjustifiably discriminates 
between Canadian seal products and Greenlandic seal products".639  
2.5.4.2  The Panel's analysis under Article XX(b) 
2.224.  Canada requests the Appellate Body to reject the European Union's conditional claims of 
error with respect to the Panel's findings under Article XX(b) of the GATT 1994. Specifically, Canada argues that the European Union fails to show that the Panel exceeded the bounds of its discretion as the initial trier of facts under Article 11 of the DSU.
640 Canada points out that, 
contrary to the European Union's arguments on appeal, its written submissions to the Panel did 
not clearly identify the welfare of seals as an independent objective for the purpose of Article XX(b). Canada asserts that the European Union's second written submission to the Panel 
instead referred to the objectives of the measure under Article 2.2 of the TBT Agreement.
641 
Canada adds that, in the European Union's first writ ten submission to the Panel, it "merely referred 
to the EU Seal Regime as making 'a substantial contribution to the welfare of seals'", which is 
"entirely consistent" with the Panel's finding that seal welfare is one aspect of the moral concerns 
in question, rather than a second objective of the EU Seal Regime.642 C a n a d a  a r g u e s  t h a t  t h e  
Panel "carefully considered the European Union' s varied articulations of the policy objective"643 and 
"did not find that '… the protection of seal welfare as such was the objective of the EU Seal 
Regime'".644 Canada argues that the Panel considered the European Union's arguments with 
                                               
636 Canada's appellee's submission, paras. 255 and 256. 
637 Canada's appellee's submission, para. 264. 
638 Canada's appellee's submission, para. 264. 
639 Canada's appellee's submission, para. 266. 
640 Canada's appellee's submission, para. 280. 
641 Canada's appellee's submission, para. 275 (referring to European Union's second written submission 
to the Panel, para. 273). 
642 Canada's appellee's submission, para. 276 (quoting European Union's first written submission to the 
Panel, para. 36; and Pane l Reports, para. 7.411). 
643 Canada's appellee's submission, para. 277. 
644 Canada's appellee's submission, para. 277 (quoting Panel Reports, para. 7.640). (emphasis added by 
Canada) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  respect to the objective, and "rejected the idea that the EU Seal Regime pursued any objectives 
other than EU public moral concerns on seal welfare".645  
2.225.  Finally, Canada considers that the European Union's claim that the Panel erred in finding 
that its arguments under Article XX(b) were "limited" is "equally ill-founded from the standpoint of 
the legal standard under Article 11".646 Canada maintains that the European Union's first and 
second written submissions to the Panel dealt with Article XX(b) in one paragraph and two paragraphs, respectively.
647 Although the European Union made several cross-references to other 
parts of its submissions in these paragraphs, Canada notes that those cross-references "were 
general and made no attempt to situate the content of the cross-referenced sections in the specific 
context of the elements that together make up Article XX(b)".648 For these reasons, Canada 
asserts that the European Union has failed to establish that the Panel acted inconsistently with 
Article 11 of the DSU, and, therefore, requests th e Appellate Body to dismiss the European Union's 
claim of error with respect to Article XX(b) of the GATT 1994.649 
2.5.5  Non-violation nullification or impairment  in the sense of Article XXIII:1(b) of the 
GATT 1994 
2.226.  Canada recalls that it had presented arguments and evidence before the Panel to 
demonstrate that, if the EU Seal Regime was not found to be inconsistent with either the 
TBT Agreement or the GATT 1994, the measure's application nevertheless nullifies or impairs 
benefits that would otherwise accrue to Canada in the sense of Article XXIII:1(b) of the GATT 1994. Canada points to its arguments before the Panel that the EU Seal Regime has upset the competitive relationship between Canadian seal products and seal products from the European 
Union and Greenland, thereby frustrating Canada's legitimate market access expectations arising 
from concessions granted by the European Union in the Tokyo and Uruguay Rounds.
650 
2.227.  Canada notes that, having found the IC an d MRM exceptions to be inconsistent with the 
European Union's obligations under the TBT Agreement and the GATT 1994, the Panel considered 
it unnecessary to address Canada's non-violation claim under Article XXIII:1(b) of the GATT 1994. According to Canada, the Panel thereby left Canada's claim "unresolved".
651 
2.228.  In the light of the European Union's claims of error in these appeals, and in the event that 
the Appellate Body reverses the Panel's findings that the EU Seal Regime is inconsistent with the TBT Agreement and the GATT 1994, Canada requests  the Appellate Body to complete the legal 
analysis under Article XXIII:1(b) of the GATT 1994.
652 In this regard, Canada points the Appellate 
Body to the arguments and evidence that it had submitted to the Panel with respect to its claim 
under Article XXIII:1(b).653 
2.6  Arguments of Norway – Appellee 
2.6.1  Annex 1.1 to the TBT Agreement 
2.229.  Norway requests the Appellate Body to reject the appeal of the European Union with 
respect to the legal characterization of the EU Seal Regime as a "technical regulation" within the 
meaning of Annex 1.1 to the TBT Agreement.  
                                               
645 Canada's appellee's submission, para. 278. 
646 Canada's appellee's submission, para. 279. 
647 Canada's appellee's submission, para. 279 (referring to European Union's other appellant's 
submission, paras. 322 (referring to European Union's second written submission to the Panel, paras. 272 
and 273) and 323). 
648 Canada's appellee's submission, para. 279. 
649 Canada's appellee's submission, para. 280. 
650 Canada's appellee's submission, para. 281 (referring to Canada's first written submission to the 
Panel, paras. 734-751; second written submission to  the Panel, paras. 345-358; and response to Panel 
question No. 51, paras. 197-220).  
651 Canada's appellee's submission, para. 284. 
652 Canada's appellee's submission, para. 286. 
653 Canada's appellee's submission, para. 287 (referring to Canada's first written submission to the 
Panel, paras. 735 bis-751; second written submission to the Panel, paras. 345-358; and response to Panel 
question No. 51, and Panel Ex hibits referred to therein). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.230.  Norway agrees with the Panel's finding that the EU Seal Regime "prescribes 'applicable 
administrative provisions' for products with certain objective characteristics".654 The administrative 
provisions under the measure at issue in EC – Asbestos applied to products possessing the 
regulated product characteristic of containing chrysotile asbestos655, while the exceptions under 
the EU Seal Regime include administrative provisions that "'apply' to products possessing the 
regulated product characteristic" of containing seal.656 Thus, these administrative provisions are 
"inextricably linked to the mandatory requirements regarding product characteristics laid down in 
the measure".657 According to Norway, "the close nexus between 'administrative provisions' and 
'product characteristics' arises because  the products exhibit or possess the 'product characteristic' 
laid down in the document in question."658 For Norway, the products subject to the administrative 
provisions are identifiable not just as products in general but because they possess the regulated 
product characteristic. 
2.231.  Norway further agrees with the Panel's characterization of the EU Seal Regime as a 
measure that "lays down, in positive and negative terms, characteristics for all products, namely, 
when and under what conditions products may, and may not, contain seal inputs".659 Like the 
measure at issue in EC – Asbestos , the EU Seal Regime contains permissive elements that form an 
"integral part of the measure", as they "defin e the scope of the prohibitive elements" without 
having an "independent meaning in the absence" thereof.660 These permissive elements "appl[ied] 
to products possessing defined objective characteristics (i.e. products containing chrysotile asbestos or seal)", and "operate[d] on the basis of a defined set of criteria".
661 In Norway's view, 
the EU Seal Regime, "through the combination of the prohibitive and permissive elements", lays 
down product characteristics in the negative form for all products that might contain seal.662 
Norway adds that the "criteria for determining when and under what conditions a product may contain a particular input lay down an 'intrinsic' feature of the subject products" and this, in turn, 
defines "an aspect of product 'composition'".
663 
2.232.  Lastly, like Canada, Norway considers that "the prohibition and exceptions need not 
'individually' lay down product characteristics, so long as, as a whole, they did so."664 In Norway's 
view, the Panel's finding that the EU Seal Regime constitutes a technical regulation was based on a 
holistic examination of the "ban" and the "excepti ons" components of the measure. Norway adds 
that the Panel correctly found that the EU Seal Regime, through its exceptions, lays down applicable administrative provisions. As to the European Union's argument that the ban on "pure 
seal products" does not lay down product characteristics, Norway contends that seal products are 
not in their "naturally occurring state" as "'live' seals or 'dead' seal carcasses", but rather involve some form of processing, such as in the prepar ation of skins, blubber, oil, meat, or further 
processed seal products.
665 Moreover, Norway recalls that "the majority of seal products subject to 
the measure are mixed products that include non-seal inputs", and "the extent of pure seal products is so limited" that it does not affect the overall finding that the EU Seal Regime, through 
the combination of its prohibitive and permissive elements, lays down product characteristics for 
all products that might contain seal inputs.
666 Norway adds that the mere fact that the EU Seal 
Regime applies to pure seal products does not preclude the measure from being characterized as a technical regulation, considering that it lays down characteristics for all products containing seal 
inputs.  
                                               
654 Norway's appellee's submission, para. 63. 
655 Norway's appellee's submission, para. 61 (referring to Appellate Body Report, EC – Asbestos , 
para. 73). 
656 Norway's appellee's submission, para. 63. 
657 Norway's appellee's submission, para. 63. 
658 Norway's appellee's submission, para. 80. (emphasis original) 
659 Norway's appellee's submission, para. 44. (fn omitted) 
660 Norway's appellee's submission, para. 57. 
661 Norway's appellee's submission, para. 57. 
662 Norway's appellee's submission, para. 58.  
663 Norway's appellee's submission, para. 45 (referring  to Norway's second written submission to the 
Panel, para. 146; and response to Panel question No. 127). 
664 Norway's appellee's submission, para. 88 (referring to Panel Reports, para. 7.100). 
665 Norway's appellee's submission, paras. 93 and 94, re spectively (referring to  European Union's other 
appellant's submission , paras. 82 and 83). 
666 Norway's appellee's submission, para. 96. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.233.  In concluding, Norway argues that the European Union "concedes that the measure lays 
down product characteristics by prohibiting products from containing seal inputs".667 According to 
Norway, the European Union also concedes that th e exceptions in the EU Seal Regime "define the 
scope of the prohibitions".668 Norway submits that, rather than accepting the "consequences of 
these admissions", the European Union takes issue with "fragments of the Panel's analysis" and 
focusses "on a small minority of products consisting exclusively of seal".669 According to Norway, 
the European Union's "objections to the Panel's reasoning do not alter the 'fundamental thrust and 
effect', and 'centre of gravity', of the measure as a whole."670 Norway requests, on this basis, that 
the Appellate Body uphold the Panel's finding that the EU Seal Regime constitutes a "technical regulation" within the meaning of Annex 1.1 to the TBT Agreement. 
2.234.  In the event that the Appellate Body reverses the Panel's finding that the EU Seal Regime 
lays down product characteristics and/or applicable administrative provisions, Norway requests the 
Appellate Body to complete the legal analysis and to find that the measure is a "technical regulation" within the meaning of  Annex 1.1 to the TBT Agreement.
671 
2.6.2  Article I:1 and Arti cle III:4 of the GATT 1994 
2.235.  Norway requests the Appellate Body to re ject the European Union's appeal of the Panel's 
interpretation of Articles I:1 and III:4 of the GATT  1994. With regard to the Panel's application of 
Article I:1 and its legal conclusion thereunder, Norway notes that the European Union "raises no 
additional argument" as to why the Panel's conclusion under Article I:1 should not be upheld by the Appellate Body, beyond its arguments concerning the alleged errors in the Panel's interpretation of that provision.
672 According to Norway, because the Panel did not err in its 
interpretation of Article I:1, the Appellate Bo dy should reject the European Union's appeal 
regarding the Panel's conclusion under that provision.  
2.236.  Turning to the specific arguments raised by the European Union, Norway disagrees with 
the European Union's assertion that the Panel's interpretation of these provisions is not supported 
by the Appellate Body reports in Dominican Republic – Import and Sale of Cigarettes  and  
EC – Asbestos.  With respect to the European Union's reliance on Dominican Republic – Import and 
Sale of Cigarettes , Norway points out that, in US – Clove Cigarettes , the Appellate Body clarified 
that, in the former dispute, it had rejected the complainant's claim under Article III:4 for reasons other than any justification given for the detrimental impact caused by the measure on imported products. Thus, the Appellate Body confirmed that the focus of the analysis under Article III:4 is 
on whether the measure at issue "modif[ies] the conditions of competition in the marketplace to 
the detriment of the group of imported products vis-à-vis the group of domestic like products".
673  
2.237.  Norway contends that the European Union's reliance on EC – Asbestos is also misplaced. 
For Norway, the Appellate Body merely explained in that dispute that "Article III:4 is not violated 
for the sole reason that objective distinctions are drawn between like products."674 According to 
Norway, "[t]he mere fact that a regulating Member may draw objective distinctions, under 
Article III:4, between like products does not mean that, if the distinction gives rise to a 
detrimental impact on imports, the regulating Member may justify those distinctions under Article III:4."
675  
                                               
667 Norway's appellee's submission, para. 98 (refe rring to European Union's other appellant's 
submission, para. 85). 
668 Norway's appellee's submission, para. 98 (quoting  European Union's other appellant's submission, 
para. 87). 
669 Norway's appellee's submission, para. 98. 
670 Norway's appellee's submission, para. 98 (referring to Appellate Body Reports, Korea – Various 
Measures on Beef , fn 44 to para. 142; US – FSC (Article 21.5 – EC) , para. 215; and China – Auto Parts , 
para. 171).  
671 Norway's appellee's submission, para. 101. 
672 Norway's appellee's submission, para. 327. 
673 Norway's appellee's submission, para. 266 (quoting Appellate Body Report, US – Clove Cigarettes , 
para. 179). 
674 Norway's appellee's submission, para. 272. 
675 Norway's appellee's submission, para. 273. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.238.  Norway further disagrees with the European Union's argument that, by failing to apply the 
same test developed under Article 2.1 of the TBT Agreement to Articles I:1 and III:4 of the GATT 1994, the Panel overlooked the context provided by Article III:1 of the GATT 1994. The 
Appellate Body has emphasized that the role of Article III:1 in interpreting the remaining 
paragraphs of Article III depends on whether Article III:1 is expressly invoked in the particular 
paragraph of Article III.
676 Norway notes in this regard that Article III:1 is not expressly invoked in 
Article III:4, and that the Appellate Body clar ified that the legal requirements set out in 
Article III:4 are themselves an application of the general principle set forth in Article III:1. Thus, in 
assessing whether there is less favourable treatment of imports under Article III:4, a panel is required to examine whether the measure has a de trimental or "adverse impact on competitive 
opportunities for imported versus like domestic products".
677 Norway asserts that, if it does, the 
measure will not be in accordance with the "general principle" expressed in Article III:1, which is 
"to ensure equality of competitive conditions between imported and like domestic products".678  
2.239.  Noting the European Union's argument that  the test under Article III:2, second sentence, 
of the GATT 1994 "'corresponds to the second step of the de facto  discrimination analysis' under 
Article 2.1 of the TBT Agreement", Norway submit s that the European Union misunderstands the 
legal standard under Article III:2, second sentence.679 According to Norway, under Article III:2, 
second sentence, a panel is not required to ente rtain "a justification for a tax measure that has 
been found to have a detrimental impact" on the equality of competitive conditions for imported products.
680 Instead, if dissimilar taxation results in such detrimental impact, then the respondent 
may justify that detrimental impact under Article XX of the GATT 1994.  
2.240.  Norway further disagrees with the European Union's argument that the Panel's 
interpretation of Articles I:1 and III:4 of the GATT 1994 is incoherent with Article 2.1 of the 
TBT Agreement. First, Norway considers th at the Appellate Body's statement, in US – Clove 
Cigarettes , that the TBT Agreement and the GATT 1994 "should be interpreted in a coherent and 
consistent manner" does not mean that the provisions of the two agreements should be given the same meaning.
681 Norway notes in this regard the Appellate Body's statement in US – Tuna II 
(Mexico)  that the scope and content of Article 2.1 of the TBT Agreement and of Articles I:1 
and III:4 of the GATT 1994 are not the same.682 
2.241.  Second, Norway disagrees with the Europe an Union's argument that, because the list of 
legitimate policy objectives under Article 2.1 of  the TBT Agreement is open, in contrast to the 
closed list of objectives under Article XX of the GATT 1994, the Panel's interpretation could lead to 
diverging results under the two agreements. In No rway's view, the European Union overstates the 
supposed gap between the list of policy interests that may justify a detrimental impact on imports 
under the TBT Agreement and the GATT 1994. A ccording to Norway, although the range of 
legitimate interests that may be pursued under Article 2.1 is wider than the range of interests under Article XX, it is not wider than the range of interests reflected in all provisions of the covered 
agreements. Even assuming, for the sake of argument, that there is some policy interest that may 
be pursued under the TBT Agreement, but not under the GATT 1994, "it would not be appropriate to circumvent the drafters' decision by allowing a policy interest not reflected in the GATT 1994 to 
justify a trade-restrictive measure under that Agreement."
683  
                                               
676 Norway's appellee's submission, para. 279 (referring to Appellate Body Report, Japan – Alcoholic 
Beverages II , p. 18, DSR 1996:I, p. 111). 
677 Norway's appellee's submission, para. 286 (quoting Appellate Body Report, Thailand – Cigarettes  
(Philippines) , para. 134). 
678 Norway's appellee's submission, para. 286 (quoting Appellate Body Report, Canada – Periodicals , 
p. 18, DSR 1997:I, p. 464, in turn referring to GATT Panel Reports, US – Tobacco , para. 99; US – Malt 
Beverages , para. 5.6; Canada – Provincial Liquor Boards (EEC) , para. 5.6; US – Section 337 Tariff Act , 
para. 5.13; US – Superfund , para. 5.1.9; and Brazil – Internal Taxes , para. 15). 
679 Norway's appellee's submission, para. 282 (quoting  European Union's other appellant's submission, 
para. 300). 
680 Norway's appellee's submission, para. 283. (emphasis omitted) 
681 Norway's appellee's submission, para. 288 (quoting  European Union's other appellant's submission, 
para. 302, in turn quoting Appellate Body Report, US – Clove Cigarettes , para. 91). 
682 Norway's appellee's submission, para. 289 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 405). 
683 Norway's appellee's submission, para. 300. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.242.  Finally, in response to the European Union's argument that the Panel's interpretation of 
Articles I:1 and III:4 of the GATT 1994 renders Article 2.1 of the TBT Agreement irrelevant, 
Norway contends that the European Union ignores the "fundamental interpretative principle" that 
the obligations in the different WTO covered agreements are cumulative.684 Thus, "[a]bsent an 
express statement modifying the cumulative applic ation of the TBT Agreement and the GATT 1994, 
there are no grounds to conclude that a measure could not be consistent with … Article 2.1 of the TBT Agreement[] and inconsistent wi th … Article III:4 of the GATT 1994".
685  
2.6.3  Article XX of the GATT 1994 
2.243.  In its appellee arguments under Article XX of the GATT 1994, Norway addresses certain of 
the European Union's claims on appeal, including those concerning Article 2.1 of the TBT Agreement. Norway submits, for instance, th at the European Union's appeal of the Panel's 
finding that the IC exception does not bear a rational relationship to the measure's objective of 
addressing the EU public moral concerns regarding seal welfare must be dismissed on the basis that the European Union has not linked its argument that "the Panel erred in interpreting  the term 
'public morals' to the language of Arti cles 2.1 and 2.2" of the TBT Agreement.
686 According to 
Norway, a party that alleges an error in a panel's " interpretation  of the existing provisions of a 
covered agreement … must somehow tie its claims and arguments to the words that are used in 
the treaty."687 Norway, therefore, requests the Appellat e Body to dismiss the European Union's 
interpretative appeal insofar as it relates to Articles 2.1 and 2.2 of the TBT Agreement.688  
2.244.  With respect to the notion of "public morals" under Article XX of the GATT 1994, Norway 
argues that a panel cannot "simply accept the respondent's assertions on the precise and specific 
content of an alleged moral that purportedly justifies a GATT-inconsistent measure, even when the 
measure is adopted by the Member's 'representative institutions'".689 Norway notes that  
"[a] respondent could easily tailor the scope of an alleged moral norm to fit the precise contours of 
the … legal norm that its legislator has adopted."690 Norway is concerned that, if "the legislator's 
adoption of the contested measure, effectively, becomes proof of the measure's asserted moral objective", then "the respondent's justification of the measure becomes entirely circular", since the 
measure is "ultimately justified by its own adoption".
691  
2.245.  Norway further asserts that "[t]he Panel engaged in careful scrutiny of the evidence and 
rejected the view that the public moral at stake varied according to the type of seal hunt."692 
According to Norway, "the Panel saw no evidentiary basis to conclude that the adoption of the 
IC requirements by the EU legislator reflected the establishment of a public moral that IC interests 
are morally more important than seal welfare."693 In sum, Norway submits that "the European 
Union was unable to substantiate its assertion that the EU legislator acted on the basis of, or 
established, a public moral in adopting the IC requirements."694  
2.6.3.1  The Panel's analysis under the chapeau of Article XX 2.246.  Norway also addresses in its appellee's submission the Panel's analysis of 
even-handedness of the IC exception in the contex t of Article 2.1 of the TBT Agreement. Norway 
notes that the European Union's appeal under the chapeau of Article XX of the GATT 1994 is "closely intertwined" with its appeal under Article 2.1 of the TBT Agreement.
695 Norway argues 
that, in the light of its own appeal under Article XX, the Appellate Body need not consider the 
European Union's other appeal under the chapeau.696 In the event that the Appellate Body were to 
                                               
684 Norway's appellee's submission, para. 304. 
685 Norway's appellee's submission, para. 310. 
686 Norway's appellee's submission, para. 145. (emphasis original) 
687 Norway's appellee's submission, para. 144. (emphasis original) 
688 Norway's appellee's submission, para. 147.  
689 Norway's appellee's submission, para. 167 (quoting  European Union's other appellant's submission, 
para. 109). (emphasis omitted) 
690 Norway's appellee's submission, para. 168. 
691 Norway's appellee's submission, para. 170.  
692 Norway's appellee's submission, para. 177.  
693 Norway's appellee's submission, para. 182. 
694 Norway's appellee's submission, para. 186.  
695 Norway's appellee's submission, para. 332.  
696 Norway's appellee's submission, paras. 335 and 370.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  address its other appeal, Norway submits that th e appeal should be dismissed because, when 
considered on its own terms, the Panel was correct in finding that the IC exception is not designed and applied in an even-handed manner.
697 
2.247.  Norway submits that, in its arguments on appeal, "the European Union misses the 
rationale underpinning the Panel's finding."698 According to Norway, the Panel's assessment of the 
even-handedness of the IC exception did not rely so lely on the formal written requirements of the 
exception, but also on the actual and expected operation of these requirements. As Norway sees 
it, the Panel viewed the fact that only the Greenlandic hunt, which "bears all the hallmarks of a 
large-scale commercial hunt", could benefit from the IC exception as an indication of a certain "inherent flaw" in the IC requirements.
699 Norway further submits that, while the Panel accepted 
that "a degree of commercialization could be accommodated under the subsistence hunts 
qualifying as IC hunts, this commercial aspect could not transform the hunt [in]to, in essence, a 
commercial hunt."700 Norway recalls that, during the legislative process leading up to the adoption 
of the EU Seal Regime, "much narrower definitions of  'subsistence'" than the current formulation of 
the IC requirements, which do not "specify the degree to which the hunt must be for 'subsistence' 
purposes", were proposed and rejected by the EU legislators.701 Norway submits that "the 
Greenlandic hunt, which more closely resembles a commercial hunt, thereby benefits from the 
absence of any definition in the measure that would ensure that qualifying hunts are truly 
subsistence hunts."702 
2.248.  Norway further argues that the Panel di d not err in relying on its finding that the 
IC exception is de facto  only available to Greenland in drawing its conclusion on the 
even-handedness of the IC exception. According to Norway, "the Panel explicitly acknowledged 
that the fact that Greenland has so far been the only beneficiary under the IC requirements was not … sufficient to establish arbitrariness in the design or application of the IC requirements", but 
was "merely 'an indication' that had to be considered with other factors".
703 Norway further 
submits that "the Panel adequately examined the implications" of the actions and omissions of the Canadian authorities and operators.
704 Norway highlights the Panel's observation that "it is not 
cost effective under the current circumstances to segregate [Canadian] Inuit products from other 
products".705 Norway also underscores the Panel's suggestion that this result had been anticipated 
by the EU legislator. Norway submits that the Eu ropean Union cannot claim that the requirements 
of the IC exception do not discriminate against Cana dian Inuit when the EU legislator in fact knew 
that this would be the case. According to Norway, it is because of the terms of the measure that 
Canadian Inuit, who truly pursue a subsistence hunt, are effectively denied the choice to benefit from the IC exception. Norway asserts that th e European Union is, therefore, wrong when it 
argues that "the failure of the Canadian Inuit to de facto  qualify under the IC requirements cannot 
be 'attributed' to the EU Seal Regime, or the European Union".
706  
2.249.  Norway also takes issue with what it understands as the European Union's assertion that 
the extent of the commercialization of the Greenlandic hunt is immaterial in determining 
even-handedness, so long as the hunt satisfies the formal criteria for an IC hunt. Norway alleges 
that, for the Panel, "the extent of commercialization of the Greenland hunt called into question the very basis on which the distinction between th e IC and commercial hunt is supposedly drawn."
707 
Norway submits that the Panel was right in focusing on the paradoxical result of the operation of 
the IC requirements, namely, the fact that "ge nuine subsistence hunts were not benefitting from 
the IC requirements, whereas the Greenlandic hunt, which more closely resembles a commercial 
                                               
697 Norway's appellee's submission, paras. 336 and 372.  
698 Norway's appellee's submission, para. 382.  
699 Norway's appellee's submission, para. 384 (quoting Panel Reports, para. 7.306). (emphasis omitted)  
700 Norway's appellee's submission, para. 388.  
701 Norway's appellee's submission, para. 390 (referring to Parliament Report, pp. 34-35).  
702 Norway's appellee's submission, para. 390.  
703 Norway's appellee's submission, para. 394. (emphasis omitted) 
704 Norway's appellee's submission, para. 395. 
705 Norway's appellee's submission, para. 396 (quoting Panel Reports, para. 7.314).  
706 Norway's appellee's submission, para. 402. 
707 Norway's appellee's submission, para. 406. (emphasis omitted) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  hunt, was."708 In Norway's view, the Panel did not err in finding that these factors "'cast serious 
doubt' on the even-handedness of the desi gn and application" of the IC exception.709 
2.250.  Norway submits that the Panel was within its discretion as the trier of fact to weigh the 
evidence and find that the European Union had no t met its burden of proving that the EU public 
moral concerns regarding seal welfare vary according to the type of hunt. Norway agrees with 
Canada that "[t]he Panel made its finding that 'the EU public concerns on seal welfare appear to be 
related to seal hunts in general, not any particular type of seal hunts'" not solely on the basis of 
the two polls and the public consultation, but rath er in "'light of the evidence before' it as a 
whole".710 Norway notes that this evidence included non-governmental organization surveys that 
indicated the absence of support for the proposition that the EU public's animal welfare concerns vary according to the type of hunt, or that substantiated the opposite conclusion.
711  
2.251.  Norway further alleges that the European Union misreads a footnote in the Panel Reports 
that explains why the Panel chose not to ascribe probative weight to the two polls and the public consultation.
712 Norway argues that the Panel did not rely  on these three pieces of evidence to 
reach its finding, let alone exclusively rely on this evidence, as Norway understands the European 
Union to be suggesting. In Norway 's view, the Panel inserted this footnote "to describe the basis 
on which it [had] found that the European Union's evidence did not carry probative weight".713 
Norway submits that the European Union has failed to show that the Panel exceeded the bounds of 
its discretion in doing so. 
2.252.  In response to the European Union's argument that the Panel failed to make an objective 
assessment of the facts in finding that the text of the IC exception, its legislative history, and its 
actual operation cast doubt on the even-hande dness of the design and application of the 
exception, Norway submits that the Panel made no error in assessing these elements. Norway 
argues that the Panel was correct in examining the te xt of the IC exception as the starting point of 
its analysis. For Norway, the European Union's arguments regarding the Panel's assessment of the 
legislative history of the IC exception miss the point. According to Norway, in this part of its analysis, the Panel observed that the EU legislat or was aware of "these important differences" 
between the Greenlandic hunt and the Canadian Inuit hunt in respect of their scale and their 
capability to make the investments that are required to benefit, as a matter of fact, from the IC exception.
714 Norway submits that the Panel made no error, in reviewing the facts, in reaching 
this view. Norway also sees no error in the Pane l's consideration of the fact that Danish customs 
authorities allowed imports from Greenland before the Greenlandic authorities had obtained the 
status of a recognized body. For Norway, this fact  illustrates that the IC exception has benefitted 
Greenland in practice. Norway submits that the Panel made no error in its objective assessment by 
weighing this fact, together with other facts, to find that the IC requirements lack 
even-handedness. 
2.253.  In respect of the European Union's claim that the Panel erred in assessing the level of 
development of the commercial aspect of the Greenlandic hunt, Norway submits that the European 
Union's argument is "absurd" because "[t]he facts before the Panel regarding the commercial focus of a large proportion of the … Greenlandic hunt we re compelling and the Panel made no error in 
weighing them".
715 Norway notes that the volume of seal skins caught in Greenland that are sold 
to Great Greenland A/S – at 95,000 skins annually – "dwarfs the size of the Norwegian 
'commercial' seal hunt[s], all other indigenous hunts, and also represents an important amount of total world trade".
716 Norway further highlights that only full-time hunters may sell seal skins to 
                                               
708 Norway's appellee's submission, para. 407.  
709 Norway's appellee's submission, para. 412.  
710 Norway's appellee's submission, para. 207 (quoting Panel Reports, para. 7.410, in turn referring to 
Royal Commission Report; and European Union's response to Panel question No. 31).  
711 Norway's appellee's submission, para. 208 (referring to the public opinion surveys contained in Panel 
Exhibits EU-49 to EU-59, in particular, EU-52 and EU-53).  
712 Norway's appellee's submission, para. 209 (referring to Panel Reports, fn 676 to para. 7.410). 
713 Norway's appellee's submission, para. 210. (emphasis omitted) 
714 Norway's appellee's submission, paras. 429 and 430 (referring to Panel Reports, para. 7.315).  
715 Norway's appellee's submission, para. 437.  
716 Norway's appellee's submission, para. 438 (referring to Panel Reports, para. 7.457; COWI 2010 
Report, pp. 23-36; and European Union's other appellant's submission, Table 3-1, at para. 256).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Great Greenland A/S, which for Norway means that  "the internationally traded seal skins are 
produced as part of a supply chain that is necessarily commercial in nature".717 
2.254.  Norway further submits that the fact that the Greenland hunt is subsidized does not render 
it non-commercial. According to Norway, producers benefiting from subsidies "still form part of the 
commercial marketplace".718 Norway also points out that the European Union's position that the 
scale of a hunt is irrelevant for a qualitative assessment of the commercial aspect of a hunt is inconsistent with the European Union's argument before the Panel that scale had a fundamental 
importance in distinguishing hunts under the rules of morality asserted by the European Union. 
With respect to the European Union's argument that the Panel erred in finding a degree of integration between the seal industries in Greenland, Canada, and Norway, Norway asserts that the material presented by the European Union in its appeal itself supports the Panel's finding, as it 
documents various interactions between the sealing industries in the three countries.
719 Norway 
also does not see incoherent reasoning in the Panel's finding, on one hand, that "the purpose of seal hunts in Greenland has characteristics that are closely related to that of commercial hunts" 
and, on the other hand, what the European Union understands to be the Panel's finding that the 
Greenlandic hunt has a "subsistence" character.
720 Norway notes that the degree of the 
commercial aspect varies between indigenous hunts, and asserts that, in Greenland, the hunt is 
commercial to a significant degree, "reaching levels that more [closely] resemble commercial 
hunts".721 Accordingly, Norway sees no contradiction or incoherency in the Panel's reasoning. 
2.6.3.2  The Panel's analysis under Article XX(b) 2.255.  Norway requests the Appellate Body to reject the European Union's conditional claims of 
error with respect to the Panel's findings under Article XX(b) of the GATT 1994. Norway submits 
that, contrary to the European Union's arguments,  the Panel made an objective assessment of the 
facts as required by Article 11 of the DSU in finding that the European Union did not make a 
prima facie case under Article XX(b). Norway highlights  that, while the European Union identifies 
three alleged factual errors by the Panel, it does  not explain why these errors are "failures by the 
Panel to objectively assess the facts, pursuant to the standard laid down by Article 11 of the DSU, 
such that they may invalidate the entire conclusion of the Panel".
722 To the contrary, Norway 
contends the Panel's statements were "accurate" and "within the bounds of its discretion".723 
Norway argues that the European Union "never subm itted" that it pursued a "separate and distinct 
objective of promoting seal welfare".724 Rather, Norway adds, the paragraph to which the 
European Union referred addresses the objectives of the measure under Article 2.2 of the 
TBT Agreement, and is contained in a section in which the European Union "emphatically states" that the EU Seal Regime pursued a "single public morals objective".
725 Norway argues that the 
Panel's finding of the "limited extent" of the European Union's arguments with respect to 
Article XX(b) is also "accurate" and within the bounds of the Panel's discretion. Norway observes 
that, even in its other appellant's submission, the European Union refers to only three paragraphs 
of its second written submission to the Panel. According to Norway, "[b]y any measure, this is 
indeed an argument of 'limited extent', particul arly one where the European Union bore the burden 
of proof."726  
2.256.  Norway compares the European Union's failure to make a prima facie case under 
Article XX(b) to the failure of Thailand to make a prima facie case under Article XX(d) in Thailand – 
Cigarettes (Philippines). Specifically, Norway takes issue with the "erroneous", "ineffective" 
cross-referencing by the European Union to other parts of its first written submission to the Panel, 
and notes that the Appellate Body used ineffect ive or erroneous cross-referring as a basis for 
                                               
717 Norway's appellee's submission, para. 438.  
718 Norway's appellee's submission, para. 441. 
719 Norway's appellee's submission, para. 447.  
720 Norway's appellee's submission, para. 449. (fns omitted) 
721 Norway's appellee's submission, para. 450.  
722 Norway's appellee's submission, para. 471. (emphasis original) 
723 Norway's appellee's submission, para. 472. 
724 Norway's appellee's submission, para. 472. 
725 Norway's appellee's submission, para. 472 (referring to European Union's second written submission 
to the Panel, paras. 271-276). (emphasis original) 
726 Norway's appellee's submission, para. 473. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  disposing of claims by the complainants in Thailand – Cigarettes (Philippines) .727 In referring to its 
arguments that the EU Seal Regime was "n ecessary" to protect "public morals" under 
Article XX(a), Norway considers that the European Union failed to demonstrate how the arguments and evidence with respect to public morals under Article XX(a) was relevant to claims regarding 
animal health and life under Article XX(b). Norway submits that it is no "substitute" for a claim 
under Article XX(b) to give "passing and scant reference" to arguments about public morals in Article XX(a).
728 Moreover, Norway notes that the European Union, through its cross-referencing, 
failed to provide legal arguments and evidence, based on the proper legal standard of necessity, 
as to how the discriminatory aspects of the measure – i.e. the IC and MRM exceptions – are necessary under Article XX(b). In Norway's view, the European Union's arguments before the Panel dealing with the "necessity" analysis under Article XX(a) of the GATT 1994 and  
Article 2.2 of the TBT Agreement address "solely"  the necessity of the prohibitive features  
of the measure – i.e. the ban – and not the discrimination that has arisen from the IC and MRM exceptions.
729 Finally, Norway notes that the European Union failed to identify or explain in 
more than a "few lines" how the EU Seal Regime  was justified under the chapeau, even assuming 
that the EU Seal Regime pursued an independent objective under Article XX(b).730 In particular, 
Norway claims, since the risk of inhumane treatment of seals is the same in all countries where 
seals are hunted, the European Union never explained how the distinction between IC and 
MRM hunts, on the one hand, and the Norwegian and Canadian hunts, on the other hand, is not "arbitrary and [un]justifiable discrimination between countries where the same conditions prevail" under the chapeau.
731  
2.257.  Even if the Appellate Body were to reverse the Panel's finding under Article XX(b), and 
proceed to complete the legal analysis, Norway requests the Appellate Body to find that the EU Seal Regime is not justified under Article XX(b) of the GATT 1994.
732 Norway considers that, 
under the proper legal test, the European Union has to show that the discriminatory aspects of the 
measure – i.e. the IC and MRM exceptions – are necessary to protect the life and health of seals under Article XX(b).
733 Norway contends that the EU Seal Regime, by providing market access to 
seal products from the Greenlandic hunts, which has the worst animal welfare outcomes, 
"undermines" seal welfare, even when considered "as a whole".734 
2.6.4  Non-violation nullification or impairment  in the sense of Article XXIII:1(b) of the 
GATT 1994 
2.258.  Norway conditionally requests the Appella te Body to complete the legal analysis of 
Norway's claim of non-violation nullification or im pairment in the sense of Article XXIII:1(b) of the 
GATT 1994.735 Norway's request is conditional upon findings by the Appellate Body to the effect 
that the EU Seal Regime is either not a technical regulation or not inconsistent with Article 2.2 of 
the TBT Agreement, and that the EU Seal Regime is not inconsistent with the GATT 1994. Norway 
refers to the materials set forth in its submissions before the Panel with respect to its claim under 
Article XXIII:1(b) of the GATT 1994. Norway co nsiders that these materials provide sufficient 
uncontested evidence for the Appellate Body to complete the analysis.736 
                                               
727 Norway's appellee's submission, para. 482 (referring to Appellate Body Report, Thailand – Cigarettes 
(Philippines) , para. 180). 
728 Norway's appellee's submission, para. 484. 
729 Norway's appellee's submission, para. 487. (emphasis omitted) 
730 Norway's appellee's submission, paras. 489 and 490 (referring to European Union's first written 
submission to the Panel, para. 590). 
731 Norway's appellee's submission, para. 490 (quoting European Union's first written submission to the 
Panel, para. 590). 
732 Norway's appellee's submission, paras. 492 and 493. 
733 Norway's appellee's submission, para. 493. 
734 Norway's appellee's submission, para. 494.  
735 Norway's appellee's submission, para. 497. 
736 Norway's appellee's submission, para. 502 (referring to Norway's first written submission to the 
Panel, section VIII; respon se to Panel question No. 51, paras. 266- 285; second written submission to the 
Panel, section VIII; opening statement at the second Panel meeting; as well as to all of the evidence referred 
to in these sections of Norway's submissions to the Panel).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.7  Arguments of the third participants  
2.7.1  Ecuador 2.259.  Pursuant to Rule 24(4) of the Working Procedures, Ecuador chose not to submit a third 
participant's submission, but it did make an open ing statement at the oral hearing. Due to its 
systemic interest in the interpretation of Article 2.1 of the TBT Agreement, Ecuador wishes to 
address the Panel's finding that the distinction between commercial and IC hunts is justified. 
Ecuador supports the Panel's consideration of subsistence as including income generating activities 
necessary to support traditional forms of life for indigenous communities, and its reference to 
international instruments to inform its analysis. Ecuador moreover considers that the Panel was correct to evaluate the relevant distinction through a case-by-case approach. 
2.7.2  Iceland 
2.260.  Iceland focuses on the test established by the Panel for ascertaining whether a measure 
aims to address a "public morals" concern, namely: (i) whether the concern in question exists in the society of the regulating Member; and (ii) whether this concern falls within the scope of "public 
morals" as defined and applied by the regulating Member "in its territory, according to its own 
systems and scales of values".
737 Iceland argues that this test differs significantly from previous 
WTO jurisprudence and results "in a considerable extension" of what constitutes "public morals" 
within the meaning of Article 2.2 of the TBT Agreement.738 Iceland also maintains that the Panel 
failed to explain what "standard of right and wr ong conduct" exists in the European Union that 
makes selling seal products a public morals concern.739 Iceland further emphasizes that the 
exceptions under the EU Seal Regime appear seriously to undermine the same moral principle that 
the measure allegedly aims to protect.740 Thus, Iceland suggests that the reference to the 
protection of the life and health of animals under  Article 2.2 is sufficient to address concerns 
related to animal welfare, and there is no need to make the "public morals" provision a "catch-all" 
exception.741 
2.261.  With respect to Article XX(a) of the GATT 1994, Iceland takes issue with the Panel's test on 
how to assess whether a measure aims to address a "public morals" concern.742 Iceland highlights 
that the Panel's approach in the present disputes differs from the approach taken by the panel in 
US – Gambling , because, in that case, the panel based its conclusion that public moral concerns 
existed on the "prior associations between the co ncern in question (gambling) and the concept of 
'public morals', particularly in the context of earlier multilateral trade negotiations".743 By contrast, 
Iceland notes that the present Panel adopts a two-pronged test, which seeks to determine: 
(i) whether a concern exists in the society in question; and (ii) whether that concern, according to the system and scale of values in the Member concerned, falls within the scope of "public 
morals".
744 This approach, Iceland contends, provides "l ittle in terms of actually clarifying the 
scope of 'public morals'", because the Panel's reason ing is "tautolog[ical]", as it appears to suggest 
that the European Union's claim of acting to addr ess the concerns of its public was "proof enough" 
that it was acting out of public concern.745 Moreover, Iceland argues that "[t]he Panel only 
provide[d] a general statement to the effect that animal welfare is a matter of ethical or moral nature in the European Union."
746 In Iceland's view, the Panel's test suggests that it is "sufficient 
to declare that a measure was taken because a 'con cern' existed, and establish a link between this 
'concern' and an abstract moral issue".747 
                                               
737 Iceland's third participant's submission, para. 7 (quoting Panel Reports, para. 7.383). 
738 Iceland's third participan t's submission, para. 9. 
739 Iceland's third participan t's submission, para. 13. 
740 Iceland's third participan t's submission, para. 15. 
741 Iceland's third participan t's submission, para. 17. 
742 Iceland's third participant's submission, para. 7 (referring to Panel Reports, para. 7.383). 
743 Iceland's third participan t's submission, para. 8 (referring to Panel Reports, US – Gambling , 
para. 3.278; and China – Publications and Audiovisual Products , para. 7.763). 
744 Iceland's third participant's su bmission, para. 10 (referring to Panel Reports, para. 7.383).  
745 Iceland's third participant's su bmission, para. 11 (referring to Panel Reports, para. 7.389). 
746 Iceland's third participan t's submission, para. 13. 
747 Iceland's third participan t's submission, para. 13. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.262.  Iceland submits that the Panel erred when it  stated that "the exceptions to the EU Seal 
Regime must be distinguished from the main objective of the measure as a whole" because, if a measure is supposed to serve a "moral principle", then the existence of such a principle "must be 
assessed on the basis of the measure as a whole, including its exceptions".
748 Furthermore, 
Iceland submits that there is "no need to rely on the notion of 'public morals' to justify measures 
taken to meet animal welfare concerns", and Article 2.2 of the TBT Agreement and Article XX(b) of the GATT 1994 are "entirely sufficient" to address animal welfare concerns.
749 In Iceland's view, 
the "public morals" provisions, such as Article XX(a), should not be a "catch-all" exception that 
Members can rely on when they cannot justify their measures under other provisions.750 Finally, 
Iceland takes issue with the Panel's approach to the less trade-restrictive alternative measures proposed by the complainants. According to Icelan d, the Panel considered that "the alternative 
measures should be assessed on the basis of the professed objective of the measure", and not the 
"actual contribution" of a measure "in reality".
751 According to Iceland, the "problem" with such an 
approach is "not only that a guarantee of this sort would be hard to meet in any trade with animal 
products, but that the EU Seal Regime itself pate ntly does not prevent marketing of seal products 
that may be derived from sealing with poor animal welfare outcomes".752 Instead, Iceland 
suggests that the alternative measures should be assessed on the basis of the "actual 
contribution" of the EU Seal Regime to its objective.753 Under such an approach, Iceland concludes, 
Canada's and Norway's proposed alternatives would "easily meet" the requirement of making an "equivalent or greater" contribution to the fulfilment of the EU Seal Regime's objective.
754 
2.7.3  Japan 
2.263.  Japan submits that, in order to analyse whether the regulatory distinction that gives rise to 
a detrimental impact on imported products is ev en-handed or legitimate, the Panel should have 
carried out an analysis involving the following four steps: (i) an examination of whether the 
regulatory distinction is rationally connected to the objective of the measure; (ii) if this is not the 
case, an examination of whether there is any other rationale that can justify the regulatory distinction; (iii) an analysis of whether the distinction is rationally connected to this rationale; and 
(iv) an inquiry into whether the distinction is actually calibrated towards the rationales or 
objectives pursed by the distinction.
755 Japan considers that a regulatory distinction that 
undermines the stated objective of a measure can manifestly not be justified on the basis of the alleged legitimacy of that objective. Unless the regulatory distinction is justifiable under a different 
rationale, there would then be a presumption that such a regulatory distinction cannot be 
considered as legitimate. 
2.264.  Japan submits that a "conflict" between th e regulatory distinction and the stated objective 
of a measure would seem "impossible to justify" unless it is the "necessary consequence" of the 
need to protect certain justifiable policy object ives that would otherwise be impaired by the 
measure.
756 Japan considers that any such policy objectives must themselves be justifiable as 
"separate legitimate objectives"757, and that there must be a "rational connection" between the 
policy objective and the regulatory distinction at issue.758 Moreover, Japan suggests that the 
regulatory distinction must be calibrated to the rationale or objective that it pursues. 
2.265.  Japan considers that, in the present disputes, the analysis under Article 2.1 should focus 
on the regulatory distinction between commercial hunts, on the one hand, and IC and MRM hunts, 
on the other hand, since this is the distinction that causes the detrimental impact on the competitive opportunities of imported seal products. In Japan's view, the Panel erred when it 
analysed the even-handedness of the distinction by  comparing the treatment of seal products from 
IC hunts in Canada and Greenland. Japan underscores that it is the regulatory distinction between 
                                               
748 Iceland's third participant's su bmission, para. 15 (referring to Panel Reports, para. 7.402). 
749 Iceland's third participan t's submission, para. 17. 
750 Iceland's third participan t's submission, para. 17. 
751 Iceland's third participan t's submission, para. 20. 
752 Iceland's third participant's su bmission, para. 19 (referring to European Union's appellee's 
submission, para. 127). 
753 Iceland's third participan t's submission, para. 20. 
754 Iceland's third participan t's submission, para. 20. 
755 Japan's third participant's submission, para. 8.  
756 Japan's third participant's submission, para. 13.  
757 Japan's third participant's submission, para. 14.  
758 Japan's third participant's submission, para. 17.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  commercial hunts and IC hunts that causes the detrimental impact, not the differences in 
application of the IC exception to seal products derived from different IC hunts. In Japan's view, 
the Panel should have examined instead whether th e similarities and differences in characteristics 
of commercial hunts and IC hunts are such that the distinction drawn by the European Union 
allows the differentiation among seal products according to the two conflicting objectives of 
addressing the moral concerns of the EU public regarding the welfare of seals while protecting IC interests. According to Japan, such a calibratio n exercise requires a detailed examination of the 
similarities between IC hunts and commercial hunts and the identification of the aspects of 
IC hunts that are necessary to ensure the subsistence of indigenous communities.
759 
2.266.  Japan further comments in its submission on two issues under Article 2.2 of the 
TBT Agreement: (i) the degree of contribution to the legitimate objective of the measure at issue 
and the alternative measures; and (ii) the "arbitrary and unjustifiable discrimination" test. First, 
Japan asserts that the Panel's finding that the EU Seal Regime makes "some contribution" or contributes "to a certain extent" to the legitimate objective does not reveal the actual "degree" of 
contribution of the measure to its objective.
760 Given that it failed to ascertain this degree of 
contribution, the Panel could not have properly reached a conclusion as to whether the alternative measure could make an "equivalent or greater" contribution to the objective.
761  
2.267.  Second, Japan argues that, contrary to  Norway's contention, the requirement that a 
technical regulation does not give rise to an "arbitrary or unjustifiable discrimination" is provided under the sixth recital of the preamble of the TB T Agreement, and can neither be transposed to, 
nor read as a separate and independent test from, Article 2.2. The wording of Article 2.2 already 
reflects the balance between trade-liberalization  and the Members' right to regulate trade by 
concerning itself with "restrictions on internationa l trade that exceed what is necessary to achieve 
the degree of contribution that a technical regula tion makes to the achievement of a legitimate 
objective".
762 Being an aspect separate from the issue of a measure's consistency with the 
TBT Agreement, the text of the sixth recital canno t, according to Japan, be made part of such 
inquiry.  
2.268.  In its opening statement at the oral hearing, Japan made submissions concerning the 
European Union's other appeal of the Panel's interpretation of Articles I:1 and III:4 of the GATT 1994. With regard to the European Union's appeal of the Panel's finding that the legal 
standard for the non-discrimination obligations under Article 2.1 of the TBT Agreement does not 
apply equally to claims under Articles I:1 and III:4, Japan observes that there are textual 
differences between Articles I:1 of the GATT 1 994 and Article 2.1 of the TBT Agreement. In 
addition, Japan notes that the "legitimate regulato ry distinction" test under Article 2.1 has been 
developed primarily in the context of the national treatment obligation, and having regard to the 
text of Article III:4 but not of Article I:1. 
2.269.  Japan further notes the European Union's argument that, because the list of possible 
legitimate objectives that may factor into an analysis under Article 2.1 is open, in contrast to the 
closed list of objectives enumerated under Article XX of the GATT 1994, the Panel's interpretation might lead to a situation where a technical regulation could be considered non-discriminatory under Article 2.1 of the TBT Agreement, but still  violate Article III:4 of the GATT 1994, because 
the legitimate objective it pursues is not covered under Article XX.
763 Japan agrees that the 
objectives that can justify a measure under Article XX are limited. Japan submits, however, that the legitimate objectives to be considered under Article 2.1 are not unlimited. In this connection, 
Japan points out that, in the context of Article 2.2 of the TBT Agreement, the Appellate Body, in 
US – Tuna II (Mexico) , considered several factors that may inform what might be considered to be 
a legitimate objective under Article 2.2. These factors, Japan submits, also inform what might be 
considered to be a legitimate objective under Article 2.1. 
                                               
759 Japan's third participant's submission, para. 20.  
760 Japan's third participant's submission, para. 25 (referring to Panel Reports, paras. 7.443 and 7.460). 
761 Japan's third participant's submission, para. 27 (referring to Panel Reports, paras. 7.446 and 7.479). 
762 Japan's third participant's submission, para. 36 (quoting Appellate Body Report, US – Tuna II 
(Mexico) , para. 319). 
763 Japan's opening statement at the oral hearing. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  2.270.  Japan considers further that an argument in favour of the European Union's interpretation 
of Article III:4 of the GATT 1994 is that Article 2. 1 of the TBT Agreement provides relevant context 
for the interpretation of Article III:4 when the measure at issue is a technical regulation.764 Japan, 
however, expresses some concerns with this approach. First, Japan notes that this approach does 
not appear to be consistent with the existing  case law of the Appellate Body under which 
"treatment no less favourable", within the meaning of Article III:4, is assessed by examining whether a measure modifies the conditions of competition in the relevant market to the detriment 
of like imported products. Second, Japan adds that, "if some flexibility" were introduced into 
Article III:4, the question would arise as to whet her this would render Article XX of the GATT 1994 
meaningless.
765 
2.271.  Regarding the Panel's analysis under Articl e XX of the GATT 1994, Japan considers that the 
Appellate Body's observations in Thailand – Cigarettes (Philippines) "imply that what a panel needs 
to focus on in an Article XX examination is the aspects leading to a finding of less favourable treatment".
766 Japan notes, however, that, in Brazil – Retreaded Tyres , the Appellate Body 
suggested that the panel "might have opted for a more holistic approach" by examining the import 
ban at issue in combination with the MERCOSUR exemption, and whether the "combined measure" 
or the "resulting partial import ban" could be  considered necessary within the meaning of 
Article XX(b) invoked in that case.767 In the present case, Japan understands the Panel to have 
followed such a "more holistic" approach.768 According to Japan, it was "essential to take into 
account the ban together with the IC and MRM exceptions".769 
2.272.  With respect to the "necessity" test under Article XX(a), Japan notes that, although both 
Article 2.2 of the TBT Agreement and Article XX of the GATT 1994 require a determination of the 
contribution of the measure to the achievement of  a particular objective, the legal standard or 
"test" under the two provisions is "clearly different".770 Under Article 2.2, Japan notes that the 
analysis is not focused on whether a technical regulation is "necessary" to achieve the legitimate 
objective identified, but on whether "the technical regulation is not 'more trade-restrictive than necessary to fulfil the legitimate objective'".
771 Japan adds that, under Article 2.2, a technical 
regulation is not required to achieve a "certain degree of contribution" to the legitimate 
objective.772 Japan considers that, under Article XX(a), when examining whether a measure is 
"necessary to protect public morals", the issue is not whether a measure makes "a" or "some" contribution to the protection of public morals, but, instead, whether the measure at issue "is 
closer to the pole of indispensable rather than simply making a contribution to protect public 
morals".
773 In Japan's view, to the extent that the "necessity" test under Article XX(a) requires 
that a measure must "make[] a material contribution" to its objective, it appears that the Panel's 
finding of "some contribution" or a contribution "to a certain extent", with respect to the EU Seal 
Regime's contribution, would not meet the "necessity" requirement under Article XX(a).774 
2.273.  Japan also disagrees with the Panel's reliance on its "legitimate regulatory distinction" 
analysis under Article 2.1 of the TBT Agreement in its analysis under the chapeau of Article XX for 
two reasons. First, Japan notes that the Panel's "extrapolation" of its Article 2.1 analysis to its assessment under the chapeau of Article XX does not include any analysis of the text of the two provisions.
775 Second, Japan considers that, to the extent that the "legitimate regulatory 
distinction" test involves "taking into account rationales other than the one which has been 
                                               
764 Japan's opening statement at the oral hearing. 
765 Japan's opening statement at the oral hearing. 
766 Japan's third participant's submission, para . 45 (referring to A ppellate Body Report, Thailand – 
Cigarettes (Philippines) , para. 177). 
767 Japan's third participant's submission, para. 45 (quoting Appellate Body Report, Brazil – Retreaded 
Tyres , para. 126). 
768 Japan's third participant's submission, para. 46. 
769 Japan's third participant's submission, para. 47. 
770 Japan's third participant's submission, para . 49 (referring to A ppellate Body Report, US – Tuna II 
(Mexico) , para. 317). 
771 Japan's third participant's submission, para. 50. 
772 Japan's third participant's submission, para. 50. 
773 Japan's third participant's submission, para . 52 (referring to A ppellate Body Report, Brazil – 
Retreaded Tyres , para. 141, in turn referring to Appellate Body Report, Korea – Various Measures on Beef , 
para. 161). 
774 Japan's third participant's submission, para. 53 (quoting Panel Reports, paras. 7.637, 7.460, 
and 7.638, respectively). 
775 Japan's third participant's submission, para. 61. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  provisionally justified under one of the paragraphs of Article XX", it is contrary to the test under 
the chapeau as developed in WTO jurisprudenc e, namely that the rationale or cause of 
discrimination be rationally connected to the objective of the measure.776 
2.7.4  Mexico 
2.274.  Mexico agrees with the participants and the Panel that, under Annex 1.1 to the 
TBT Agreement, "the proper legal character of the measure should be determined by examining 
the measure as a whole, in a holistic manner."777 At the same time, Mexico disagrees with what it 
sees as a "mechanistic test" proposed by the European Union that would seem "to require a 
different type of analysis when not every componen t of the measure at issue meet[s] the definition 
of a 'technical regulation' in isolation".778 
2.275.  Mexico recalls that the Appellate Body established a two-step test for discrimination under 
Article 2.1 of the TBT Agreement. This test invo lves, first, an assessment of whether the measure 
at issue modifies the conditions of competition to  the detriment of imported products and, second, 
an inquiry as to whether this detrimental impact stems exclusively from a legitimate regulatory 
distinction. Mexico takes issue with the Panel's deci sion to divide the second step of the analysis 
into three separate questions. Mexico agrees with Canada that the questions of whether a 
distinction is rationally connected to the objective of a measure or whether it is otherwise justified 
should be part of the overall assessment of th e even-handedness of the relevant regulatory 
distinction.779  
2.276.  Mexico further observes that the Panel appears to equate even-handedness to the absence 
of arbitrary or unjustifiable discrimination. Mexico  submits that the Appellate Body has not limited 
the meaning of even-handedness in this way, but instead has considered the presence of arbitrary 
and unjustifiable discrimination as an example of a lack of even-handedness.780 In Mexico's view, 
any fact that could indicate a lack of even-handedness is relevant to the examination, including a 
consideration of whether a measure is a disguised restriction on trade, or whether it is fair, 
impartial, reasonable, and harmonious, having regard to the objective it pursues. 
2.277.  Mexico agrees with Canada that the Panel should have included "the risks non-fulfilment 
would create" – namely, "the nature of the risks at issue and gravity of consequences that would 
arise from non-fulfilment of the objective[s] pursued by the Member through the measure" – as the third factor in its assessment of "nece ssity" under Article 2.2 of the TBT Agreement.
781 Further, 
Mexico argues that, in the comparative analysis of the challenged measure and the possible 
alternative, ascertaining the degree of contribution  of the latter "means more than simply 'having 
the same result' or a similar narrow definition that would apply to 'equivalent contribution' when viewed in isolation".
782 Thus, Mexico contends that, in such a comparative analysis, the degree of 
contribution of the alternative measure to the legitimate objective does not have to be the same 
as that of the challenged measure, but could also be of a lesser degree if it is justified in the light of the risks non-fulfilment would create. In Mexico's view, "[t]his interpretation is consistent with 
the concept of proportionality."
783 
2.278.  Mexico submits that the European Union's interpretation of Articles I:1 and III:4 of the 
GATT 1994 would undermine the scope and application of these provisions. In Mexico's view, a measure accords less favourable treatment to imported products compared to like domestic 
products under Article III:4 where it modifies the conditions of competition in the relevant market 
to the detriment of the like imported products. Noting the Appellate Body's statement that the 
                                               
776 Japan's third participant's submission, para . 62 (referring to A ppellate Body Report, Brazil – 
Retreaded Tyres , paras. 225-228). 
777 Mexico's third participan t's submission, para. 6. 
778 Mexico's third participant's subm ission, para. 6 (referring to the European Union's other appellant's 
submission, para. 77). 
779 Mexico's third participant's su bmission, para. 9 (referring to Canada's appellant's submission, 
para. 66). 
780 Mexico's third participant's submission, para. 10 (referring to Appellate Bo dy Reports, US – Clove 
Cigarettes , paras. 95 and 271; and US – COOL , paras. 272, 293, 340, and 341).  
781 Mexico's third participant's su bmission, para. 18 (referring to Canada's appellant's submission, 
paras. 303-306; and quoting Appellate Body Reports, US – COOL , para. 378). 
782 Mexico's third participan t's submission, para. 22. 
783 Mexico's third participan t's submission, para. 23. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  term "treatment no less favourable" in Article 2.1 of the TBT Agreement is to be interpreted in the 
light of the specific context provided by that ag reement, Mexico agrees with the Panel that the 
additional element that the Appellate Body considered as necessary to complete an analysis under Article 2.1 reflects the absence in the TBT Agreement of a general exceptions clause equivalent to 
that of Article XX of the GATT 1994.
784 In Mexico's view, because of this difference between the 
TBT Agreement and the GATT 1994, there is no le gal basis to introduce into Article III:4 the 
two-step approach that has been developed for determining de facto less favourable treatment 
under Article 2.1 of the TBT Agreement. 
2.7.5  Namibia 2.279.  Pursuant to Rule 24(4) of the Working Procedures, Namibia chose not to submit a third 
participant's submission, but it did make an opening statement at the oral hearing. Namibia 
submits that the Panel erred under Article 2.2 of the TBT Agreement. In Namibia's view, there is 
no logical connection for upholding the ban under the EU Seal Regime in order to protect public morals. Namibia contends that, by allowing the ban for seals emanating from outside the European 
Union, while animal welfare or public moral considerations are not applied to seal products 
originating in the European Union, the Panel's ruling condones for the European Union what it condemns for others. Namibia further contends that  "public morals" is not a legitimate objective 
within the meaning of Article 2.2, and that, given th at it is an important issue, the drafters would 
have listed it in the list of legitimate objectives under Article 2.2 if they had wanted to include it. In addition, the travaux préparatoires  make no reference to "public morals". Namibia expresses its 
concern that, absent an explicit reference to pu blic morals in a challenged measure, a Member 
may seek ex post facto  to adjust the content of the objective to justify the measure. 
2.280.  Namibia also criticizes the Panel for not referring to legislation and regulations of Namibia 
that illustrate that compliance and monitoring in respect of seal harvesting can be achieved. 
Namibia urges the Appellate Body to take into account the stringent measures that Namibia has 
put in place for the protection of animal welfare, including the protection of seal welfare. 
2.7.6  United States 
2.281.  The United States argues that, within the meaning of Annex 1.1 to the TBT Agreement, 
"[a] measure that simply prohibits the sale of a product does not prescribe a product characteristic."
785 Instead, a measure with different aspects "would need to be analyzed separately 
for purposes of the definition in the TBT Agreement".786  
2.282.  The United States observes that WTO Members may ban the sale of products for various 
reasons, and, as part of the effort to prevent the sale of those products, a WTO Member "may also ban the sale of products containing the banned product".
787 It is not clear to the United States 
why, under the Panel's logic, this action "would result in a finding every time that the ban should 
be considered to be a technical regulation".788 For the United States, the Panel's finding that a ban 
prescribes product characteristics in the negative – "no product sold can contain the banned 
product" – does not appear to be consistent with  the text of the Annex 1.1 to the TBT Agreement, 
read in its context, and in the light of  the object and purpose of the Agreement.789 Referring to the 
1991 sixth edition of the ISO/IEC general terms and definitions concerning standardization790 
(ISO/IEC Guide), the United States points out that the focus of standards, as well as technical 
regulations, "is on ensuring that a product is fit for its purpose or aim".791 By contrast, the purpose 
of a technical regulation "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."792 Consequently, "to the extent that a measure bans the sale of a 
                                               
784 Mexico's third participant's submission, para. 29 (referring to Panel Reports, para. 7.585). 
785 United States' third participant's submission, para. 30. 
786 United States' third participant's submission, para. 31. 
787 United States' third participant's submission, para. 32. 
788 United States' third participant's submission, para. 32. 
789 United States' third participant's submission, pa ra. 32 (referring to Pane l Reports, para. 7.106). 
790 International Organization for Standardization/International Electrotechnical Commission, 
Guide 2:1991 – General terms and their definitions concerning standardization and related activities , 6th edn. 
791 United States' third participant's submission, para . 35 (referring to ISO/IEC Guide, definitions for 
"standardization", "aims of standard ization", and "product standard"). 
792 United States' third participant's submission, para. 35. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  product, rather than prescribing that the pr oduct possess or not possess a certain product 
characteristic, the measure is not a technical regulation."793 
2.283.  Moreover, the United States submits that the criteria under the exceptions provide that 
any seal inputs in a product "must result from certain processes or production methods"794, which, 
in the United States' view, "are unrelated to the characteristics of the product".795 The 
United States underscores that the PPMs referred to in  the definition of a "technical regulation" are 
those that relate to product characteristics. Th e United States notes that, under Annex 1.1, the 
administrative provisions must apply to product characteristics or their related PPMs. For the 
United States, it is therefore important to ascertain whether the administrative provisions at issue apply to product characteristics or PPMs that ar e related to product characteristics, "or whether 
they instead apply to PPMs that are not related to product characteristics, such as the nature of 
the hunt involved".
796 The United States further argues that the EU Seal Regime bans seal 
products based not on the characteristics of the products, but on the type of hunt that resulted in the seal product.
797 Consequently, according to the United States, the EU Seal Regime would not 
appear to be a "technical regulation". 
2.284.  The United States submits that, because the "critical phrases" of Article III:4 of the 
GATT 1994 and Article 2.1 of the TBT Agreement ar e "identically worded", the two provisions 
must, under the customary rules of interpretation of public international law, have the same 
ordinary meaning.798 The United States contends that neit her the context of these provisions, nor 
the object and purpose of the agreements in whic h they appear, indicates that the identical terms 
in these provisions should have different meanings. For the United States, the second recital of the 
preamble of the TBT Agreement – "Desiring to further the objectives of the GATT 1994" – also 
indicates that Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement should be 
interpreted in the same way.799 
2.285.  The United States further contends that th e Panel's interpretations of Articles I:1 and III:4 
of the GATT 1994 create an incoherent and incons istent relationship between the TBT Agreement 
and the GATT 1994. Noting that the Appellate Bo dy has concluded that the TBT Agreement and the 
GATT 1994 "should be interpreted in a coherent and consistent manner", the United States 
maintains that the Panel's interpretations of Arti cle III:4 of the GATT 1994 and Article 2.1 of the 
TBT Agreement are contrary to the principle that Article III:4 serves as relevant context for the interpretation of Article 2.1.  
2.286.  In the United States' view, the Appellate Body's finding in US – Clove Cigarettes  that 
Article 2.1 of the TBT Agreement does not prohib it technical regulations reflecting "solely" 
legitimate regulatory distinctions "followed naturally" from the context of past Appellate Body 
reports examining Article III:4 of the GATT 1994.
800 Thus, interpreting Article III:4 and Article 2.1 
as setting forth different legal standards would be contradictory, given the origin of the Appellate Body's approach to the interpretation of Article 2.1.
801 
2.287.  The United States rejects Canada's suggestion that the EU Seal Regime fails to make any 
contribution to its objective because it does not completely prevent consumers from being exposed to seal products from inhumanely killed seals.
802 In the view of the United States, a challenged 
measure is not inconsistent with Article 2.2 of the TBT Agreement merely because it does not fulfil 
its legitimate objective completely. The United States adds that a proposed alternative must then 
be assessed to determine whether it would achieve the legitimate objective at the level chosen by the Member. The United States further contends that Canada conflates the legal tests under 
                                               
793 United States' third participant's submission, para. 38. 
794 United States' third participant's submission, para. 39. 
795 United States' third participant's submission, para. 40. 
796 United States' third participant's submission, para. 43. 
797 United States' opening statement at the oral hearing. 
798 United States' third participant's subm ission, paras. 5 an d 6, respectively. 
799 United States' third participant's submission, para. 6 (referring to Appellate Body Report, US – Clove 
Cigarettes , para. 91). 
800 United States' third participant's submission, para. 15 (referring to Appellate Body Reports, US – 
Clove Cigarettes , paras. 91 and 100; US – Tuna II (Mexico) , paras. 214 and 215; and US – COOL , para. 269). 
801 United States' third participant's submission, para. 16 (referring to Appellate Body Report, US – 
Clove Cigarettes , para. 91). 
802 United States' opening statement at the oral hearing. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Article 2.2 of the TBT Agreement and Article XX of  the GATT 1994. According to the United States, 
Article 2.2 is not about whether the measure is necessary to achieve the designated objective, but rather whether the trade-restrictiveness of the measure is greater than necessary. Additionally, 
the United States maintains that Norway conflates these two provisions by arguing that Article 2.2 
prohibits arbitrary or unjustifiable discrimination. The United States asserts that Article 2.2 is not 
about discrimination, but rather about whether a measure is more trade restrictive than necessary. 
2.288.  The United States submits further that th e Panel's interpretation of Article III:4 of the 
GATT 1994 "establishes the illogical possibility that a technical regulation could be found to be 
consistent with the national treatment obligation" of the TBT Agreement, but "inconsistent with the 
same national treatment language in the more general agreement, the GATT 1994".
803 According 
to the United States, "[t]he Panel's interpretation would yield this result for a whole class of 
measures, namely technical regulations that pursue objectives that fall outside of the scope of 
Article XX" of the GATT 1994, and that "result in a detrimental impact" on imported products that 
"stems exclusively from legitimate regulatory distinctions".804 
2.289.  The United States submits that the Panel' s interpretation of Article III:4 of the GATT 1994 
"contradicts the principle that the [TBT Agreemen t and the GATT 1994] strike the same balance" 
between trade-liberalization and Me mbers' right to regulate trade.805 The United States explains 
that the list of possible legitimate objectives that may justify a technical regulation is "open and 
broad" under Article 2.1 of the TBT Agreement,  while Article XX of the GATT 1994 presents a 
closed list of legitimate objectives.806 Thus, under the Panel's interpretation of Article III:4 of the 
GATT 1994, the balance between Members' right to  regulate trade and the general interest of 
trade-liberalization would be completely different under the GATT 1994 and the TBT Agreement. 
Under Article 2.1 of the TBT Agreement, technical regulations serving objectives that fall outside 
the scope of Article XX of the GATT 1994 could be justified, while, under the Panel's interpretation 
of Article III:4, measures serving these same objectives could not be justified. 
2.290.  With respect to Article XX of the GATT 1994, the United States submits that Article XX(a) 
does not require some prescribed degree of consistency between public moral concerns in different 
situations.807 As regards the Panel's reliance upon its assessment under Article 2.1 of the 
TBT Agreement for the purposes of its analysis und er the chapeau of Article XX, the United States 
submits that the question under Article 2.1 is  whether the measure discriminates, while the 
question under the chapeau is whether any discrimination is arbitrary or unjustifiable. According to 
the United States, while the analysis under Article 2.1 can end once discrimination is found, this is 
only the "starting point" for the analysis under the chapeau of Article XX, and the chapeau becomes relevant only once discrimination has been found. Finally, the United States expresses its 
concern about Canada's and Norway's reading of the Appellate Body report in Brazil – Retreaded 
Tyres , and submits that the chapeau does not limit the justification for discrimination only to a 
justification based on the objective under the relevant subparagraph of Article XX, rather than 
other "legitimate and non-protectionist" objectives. 
                                               
803 United States' third participant's submission, para. 19. 
804 United States' third participant's submission, para. 20. 
805 United States' third participant's submission, para. 22 (referring to Appellate Body Report, US – 
Clove Cigarettes , para. 109). 
806 United States' third participant's submission, para. 23. 
807 United States' opening statement at the oral hearing. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  3  ISSUES RAISED IN THESE APPEALS 
3.1.  The following issues are raised in these appeals: 
a. whether the Panel erred in finding that the EU Seal Regime constitutes a "technical 
regulation" within the meaning of Annex 1.1 to the TBT Agreement (raised by the 
European Union); 
b. with respect to the Panel's analysis under Article 2.1 of the TBT Agreement: 
i. whether the Panel erred in formulating and applying the legal test under Article 2.1 
(raised by Canada); 
ii. whether the Panel erred in finding that the IC exception bears no "rational 
relationship" to the objective of the EU Seal Regime (raised by the European Union); 
iii. whether the Panel erred in finding that the regulatory distinction between 
commercial and IC hunts is justifiable (raised by Canada);  
iv. whether the Panel erred in finding that the EU Seal Regime is inconsistent with 
Article 2.1 because the IC exception is not designed and applied even-handedly 
(raised by the European Union); and 
v. whether the Panel acted inconsistently with Article 11 of the DSU in its analysis of: 
- whether the IC exception is designed and applied even-handedly (raised by the 
European Union); 
- the relationship between the IC except ion and the objective of the EU Seal 
Regime (raised by the European Union); and 
- whether commercial hunts and IC hunts can be distinguished on the basis that 
IC hunts are primarily for the purpose of subsistence (raised by Canada). 
c. with respect to the Panel's identification of the objective of the EU Seal Regime, whether 
the Panel erred under Article 2.2 of the TBT Agreement, and acted inconsistently with 
Article 11 of the DSU, in finding that the obje ctive of the EU Seal Regime is to address 
EU public moral concerns regarding seal welfare (raised by Norway); 
d. with respect to the Panel's analysis under Article 2.2 of the TBT Agreement: 
i. whether the Panel erred under Article 2.2, and acted inconsistently with Article 11 of 
the DSU, in its relational analysis, including with respect to the contribution of the EU Seal Regime to its objective, and the less trade-restrictive alternatives (raised by Canada and Norway), and the risks that non-fulfilment would create (raised by 
Canada); and 
ii. whether the Panel erred in failing to address "arbitrary or unjustifiable 
discrimination" in its analysis under Article 2.2 (raised by Norway);  
e. with respect to the Panel's analysis under Article I:1 and Article III:4 of the GATT 1994, 
whether the Panel erred: 
i. in finding that the legal standard of the non-discrimination obligations under 
Article 2.1 of the TBT Agreement does not apply equally to claims under Article I:1 
and Article III:4 (raised by the European Union); and WT/DS400/AB/R • WT/DS401/AB/R 
 
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  ii. in finding that the EU Seal Regime is inconsistent with Article I:1 because, through 
the IC exception, it does not "immediately and unconditionally" extend the same market access advantage accorded to seal products of Greenlandic origin to like seal products of Canadian and Norwegian origin (raised by the European Union); 
f. with respect to the Panel's analysis under Article XX(a) of the GATT 1994, whether the 
Panel erred in: 
i. concluding that the analysis under Article XX(a) of the GATT 1994 should examine 
the prohibitive and permissive aspects of the EU Seal Regime (raised by Norway); 
ii. concluding that the objective of the EU Seal Regime falls within the scope of 
Article XX(a) (raised by Canada); and 
iii. in finding that the EU Seal Regime is provisionally deemed necessary within the 
meaning of Article XX(a) (raised by Canada and Norway); 
g. if the Appellate Body were to uphold the Panel's finding under Article I:1 of the 
GATT 1994, and were to reverse the Panel's finding under Article XX(a) of the 
GATT 1994, then whether the Panel acted inconsistently with Article 11 of the DSU in 
finding that the European Union has failed to establish a prima facie  case in respect of its 
claim under Article XX(b) of the GATT 1994 (raised by the European Union); and 
h. with respect to the Panel's analysis under the chapeau of Article XX, whether the Panel 
erred: 
i. by applying the test developed under Arti cle 2.1 of the TBT Agreement to determine 
the existence of arbitrary or unjustifiable discrimination (raised by Canada and 
Norway); and, if so, whether the Panel erred in finding that "the IC exception does 
not bear a rational relationship to the objective of addressing the moral concerns of the public on seal welfare" (raised by the European Union); 
ii. in finding that the distinction between commercial and IC hunts is justifiable (raised 
by Canada); and 
iii. in finding that the manner in which the IC exception is designed and applied does not 
meet the requirements of the chapeau (raised by the European Union). 
4  BACKGROUND AND OVERVIEW OF THE MEASURE AT ISSUE 4.1.  Before addressing the participants' claims on appeal, we provide an overview of the measure 
at issue in these disputes.
808 As noted by the Panel, the measure consists of the following two legal 
instruments: 
a. Regulation (EC) No. 1007/2009 of the Euro pean Parliament and of the Council of 
16 September 2009 on trade in seal products809 (Basic Regulation); and 
b. Commission 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 products810 (Implementing Regulation). 
                                               
808 For additional details on the measure at issue, re course should be had to paragraphs 7.10 to 7.24 of 
the Panel Reports. 
809 Official Journal of the European Union , L Series, No. 286 (31 October 2009) (Panel Exhibit JE-1). 
810 Official Journal of the European Union , L Series, No. 216 (17 August 2010) (Panel Exhibit JE-2). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  4.2.  Before the Panel, the parties agreed th at the Basic Regulation and the Implementing 
Regulation should be treated as a single measure and the Panel, accordingly, examined the two instruments as an "integrated whole".
811 Following the terminology employed by the parties and 
the Panel, we refer to these legal instru ments, together, as the "EU Seal Regime".812 Pursuant to 
Article 8 of the Basic Regulation and Article 12 of the Implementing Regulation, the EU Seal 
Regime entered into force on 20 August 2010.  
4.3.  The EU Seal Regime does not have a specific section setting forth the objective of the 
EU Seal Regime. As noted by the Panel, the preamble of the Basic Regulation, comprising 
21 recitals, refers to the EU public's concerns about seal welfare issues (recitals 1, 4, 5, 10, 11) and the need to preserve the economic and social  interests of Inuit communities engaged in seal 
hunting and to define the conditions for the exceptions under the EU Seal Regime (recitals 14 
and 17).
813 
4.4.  The EU Seal Regime establishes rules co ncerning the placing on the market of seal 
products.814 The term "seal products" is defined by the Basic Regulation as "all products, either 
processed or unprocessed, deriving or obtained fr om seals, including meat, oil, blubber, organs, 
raw fur skins and fur skins, tanned or dressed, including fur skins assembled in plates, crosses and similar forms, and articles made from fur skins".
815 
4.5.  Article 3 of the Basic Regulation sets out rules regarding "conditions for placing on the 
market" of seal products:  
Article 3 
Conditions for placing on the market 
1. The placing on the market of seal products shall be allowed only where the seal 
products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the 
time or point of import for imported products.  
2. By way of derogation from paragraph 1:  (a) the import of seal products shall also be allowed where it is of an occasional 
nature and consists exclusively of goods for the personal use of travellers or their 
families. The nature and quantity of such goods shall not be such as to indicate that they are being imported for commercial reasons; 
(b) the placing on the market of seal prod ucts shall also be allowed where the seal 
products result from by-products of hunting that is regulated by national law and 
conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature 
and quantity of the seal products shall not be  such as to indicate that they are being 
placed on the market for commercial reasons. 
The application of this paragraph shal l not undermine the achievement of the 
objective of this Regulation. … 
                                               
811 See Panel Reports, paras. 7.8 and 7.26. 
812 See Panel Reports, paras. 2.1, 2.3, 3.7, 7.1, and 7.8. 
813 Panel Reports, paras. 7.386 and 7.387. 
814 Basic Regulation, Article 1. 
815 Basic Regulation, Article 2(2). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  4.6.  As noted by the Panel, Article 3 of the Ba sic Regulation starts with a paragraph prescribing 
that the placing on the market816 of seal products shall be allowed only where the seal products 
result from hunts traditionally conducted by Inuit817 and other indigenous communities818 (referred 
to by the Panel as "IC"), and contribute to their subsistence.819 The word "subsistence" is not 
defined in the EU Seal Regime.820 Article 3(1) also states that the conditions in the first paragraph 
shall apply at the time or point of import  for imported products.821 
4.7.  The second paragraph of Article 3 begins with the phrase "by way of derogation from 
paragraph 1" and provides for two situations where derogation from paragraph 1 is allowed. First, 
Article 3(2)(a) allows the import  of seal products where: (i) the act of import is of an occasional 
nature; and (ii) the goods at issue are for the "personal use of travellers or their families".822 
Second, Article (3)(2)(b) allows the placing on the market of seal products where: (i) the seal 
products result from by-products of hunting that is regulated by national law; (ii) the hunting is 
conducted for the sole purpose of the sustainable management of marine resources (also referred to by the Panel as "marine resource management" or "MRM"); and (iii) the placing on the market 
is only on a non-profit basis.
823 Both provisions contain a final sentence stipulating that "[t]he 
nature and quantity of [such goods/the seal products] shall not be such as to indicate that they are being [imported/placed on the market] for commercial reasons." The EU Seal Regime does not 
provide a definition for the terms "commercial" or "commercial reasons".
824 
4.8.  As noted by the Panel, "the practical implication of Article 3 is that seal products derived from 
hunts other than IC or MRM hunts cannot be imported and/or placed on the EU market" except to the extent that the Travellers exception permits limited imports for personal use.
825 Furthermore, 
as the Panel observed, the EU Seal Regime creates " implicit exceptions  f o r  s e a l  p r o d u c t s  f o r  
transit, inward processing, and importation for auction and re-export".826 
                                               
816 The Basic Regulation defines "placing on the ma rket" as "introducing on to the Community market, 
thereby making available to third parties, in exch ange for payment". (Basic Regulation, Article 2(3)) 
817 The Basic Regulation defines "Inuit" as "indigen ous members of the Inuit homeland, namely those 
arctic and subarctic areas where, presently or traditio nally, Inuit have aboriginal rights and interests, 
recognised by Inuit as being members of their people and includes Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit (Greenland) and Yupik (R ussia)". (Basic Regulation, Article 2(4)) 
818 The Implementing Regulation defines "other indigenous communities" as:  
[C]ommunities in independent countries who are regarded as indigenous on account of their 
descent from the populations which inhabited the country, or a geog raphical region to which the 
country belongs, at the time of conquest or co lonisation or the establishment of present State 
boundaries and who, irrespective of their legal st atus, retain some or all of their own social, 
economic, cultural and political institutions. 
(Implementing Regulation, Article 2(1)) Neither the Basic Regulation nor the Implementing Regulation defines the meaning of "subsistence".  
819 The Panel referred to this provision as setting out the "IC exception". (See e.g. Panel Reports, 
paras. 7.53 and 7.377) We do the same in these Reports. 
820 Panel Reports, para. 7.283 (referring to COWI, Study on implementing measures for trade in seal 
products, Final Report  (January 2010) (Panel Exhibit JE-21) (COWI 2010 Report), p. 9). 
821 The Basic Regulation defines "import" as "any entry of goods into the customs territory of the 
Community". (Basic Regulation, Article 2(5)) 
822 The Panel referred to this exce ption as the "Travellers exception". (See e.g. Panel Reports, 
para. 7.53) We do the sa me in these Reports. 
823 The Panel referred to this except ion as the "MRM exception". (See e. g. Panel Reports, paras. 7.53 
and 7.377) We do the same in these Reports. The Implementing Regulation defines "placing on the market on a non-profit basis" as "placing on the market for a pric e less than or equal to the recovery of the costs borne 
by the hunter reduced by the amount of any subsidie s received in relation to  the hunt". (Implementing 
Regulation, Article 2(2)) 
824 Panel Reports, para. 7.41 (referring to European Union's response to Panel question No. 123, 
para. 84). 
825 Panel Reports, para. 7.45. 
826 Panel Reports, para. 7.53 (referring to European Union's response to Panel questions Nos. 75, 101, 
131, and 177; and Canada's and Norway's comments on  European Union's response to Panel questions 
Nos. 75, 101, 131, and 177). (emphasis original) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  4.9.  The Implementing Regulation sets out deta iled rules concerning the operation of the Basic 
Regulation. Article 3 of the Implementing Regulati on provides that, for placing on the market of 
seal products pursuant to Article 3(1) of the Basic Regulation, the seal products must originate from seal hunts that satisfy three conditions: 
a. the seal hunt was conducted by Inuit or other indigenous communities that have a 
tradition of seal hunting in the community and in the geographical region;  
b. the products of the seal hunt are at least partly used, consumed or processed within the 
communities according to their traditions; and  
c. the seal hunt contributes to the subsistence of the community. 
4.10.  Article 4 of the Implementing Regulation stat es that, in order to qualify under the Travellers 
exception in Article 3(2)(a) of the Basic Regulati on, one of the following three requirements must 
be fulfilled: 
a. the seal products are either worn by the travellers, or carried or contained in their 
personal luggage;  
b. the seal products are contained in the personal  property of a natural person transferring 
his normal place of residence from a third country to the European Union; or 
c. the seal products are acquired on site in a third country by travellers and imported by 
those travellers at a later date, provided that, upon arrival in the EU territory, those 
travellers present to the customs author ities of the member State concerned the 
following documents:  
i. a written notification of import; and 
ii. a document giving evidence that the products were acquired in the third country 
concerned.  
4.11.  Finally, Article 5 of the Implementing Regula tion provides that, in order to qualify under the 
derogation set out in Article 3(2)(b), the seal products at issue must originate from seal hunts that 
satisfy three conditions: 
a. the seal hunt was conducted under a national or regional natural resources management 
plan that uses scientific population models of marine resources and applies the 
ecosystem-based approach; 
b. the seal hunt did not exceed the total allowable catch (TAC) quota established in 
accordance with the national or regional natural resources management plan referred to; 
and 
c. the by-products of the seal hunt can only be placed on the market in a non-systematic 
way on a non-profit basis. 
4.12.  Besides these specific requirements, Articles  3(2) and 5(2) of the Implementing Regulation 
stipulate that, in cases of seal products from IC and MRM hunts, the seal products must be accompanied by the attesting documents prescribed in Article 7(1) of the Implementing Regulation 
at the time of the placing on the market. Pursuant to Article 7(1), such attesting documents shall 
be issued by a "recognized body". Article 6 of  the Implementing Regulation lays down the 
substantive and procedural requirements that must be fulfilled for an entity to be included in "a list of recognized bodies". 
4.13.  The Panel used the terms "IC hunts" and "MRM hunts" to refer to seal hunts conforming to 
the requirements of the IC and MRM exceptio ns, respectively, whereas it used the term 
"commercial hunts" to refer to hunts that do not conform to the IC and MRM requirements.
827 
                                               
827 Panel Reports, paras. 7.13 and 7.14. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  During the interim review stage, Norway asserted that use of the terms "commercial hunts" and 
"IC and MRM hunts" could be taken to reflect a "m oral judgement" with respect to the different 
hunts, and that the Panel's own findings demonstrate "the falseness of the distinction created by the Panel between 'commercial' and the other types of hunts".
828 Norway suggested that the Panel 
adopt instead "neutral language" to reflect the basis for its distinction, such as "non-conforming 
hunts", or the "Canadian East Coast hunt" and "Norwegian West Ice hunt".829 Canada suggested 
that the phrase "non-conforming hunts" be used instead of "commercial hunts".830 In rejecting the 
parties' requests, the Panel explained that the te rminology it employed was without prejudice to 
any findings on "the existence of a commercial element in IC and MRM hunts".831  
4.14.  The EU Seal Regime does not expressly distinguish between "commercial" and 
"non-commercial" seal hunts. Instead, it dist inguishes between IC hunts and MRM hunts, on the 
one hand, and all other hunts, on the other hand. Only seal products originating from the former 
two types of hunts can be placed on the EU market , provided that they comply with the relevant 
requirements. In these Reports, we refer, as did the Panel, to hunts other than IC or MRM hunts as 
"commercial hunts" for ease of reference and without prejudice to the existence of a commercial 
element in IC and MRM hunts.832 
5  ANALYSIS OF THE APPELLATE BODY 
5.1  Legal characterization of the EU Seal  Regime – Annex 1.1 to the TBT Agreement 
5.1.1  Introduction 5.1.  Before the Panel, Canada and Norway challe nged the consistency of the EU Seal Regime with 
various provisions of the GATT 1994 and the TBT Agreement.
833 The Panel determined that it 
would first examine the complainants' claims under the TBT Agreement. Before proceeding to 
address the substance of these claims, the Panel ad dressed the threshold question of whether, as 
contended by Canada and Norway, the measure at issue constitutes a "technical regulation" within 
the meaning of Annex 1.1 to the TBT Agreement. In its analysis of this question, the Panel referred 
to what it described as a "three-tier test" and made three intermediate findings.834 First, the Panel 
found that the measure applies to an "identifiable group of products"835, namely, seal products. 
Second, the Panel determined that the EU Seal Re gime "lays down characteristics for all products 
that might contain seal" as well as "applicable administrative provisions for certain products containing seal inputs that are exempted from  the prohibition under the measure [at issue]".
836 
Third, the Panel found that the measure imposes mandatory compliance.837  
5.2.  The European Union does not contest the Panel's finding that the measure applies to an 
"identifiable group of products".838 Nor does it take issue with the Panel's determination839 that the 
measure imposes mandatory compliance. Instead, the European Union's appeal focuses on the 
Panel's finding that the measure lays down product characteristics, including the applicable 
administrative provisions, and the Panel's conclusion that the EU Seal Regime is a technical 
                                               
828 Panel Reports, para. 6.7 (referring to Norway's comments on the Interim Panel Reports, paras. 37 
and 38). 
829 Panel Reports, para. 6.7. 
830 Panel Reports, para. 6.7. 
831 Panel Reports, para. 6.9. 
832 Panel Reports, paras. 6.7-6.9 and 7.179 (referri ng to Norway's comments on the Interim Panel 
Reports, paras. 37 and 38). 
833 Specifically, both complainants brought claims under  Articles I:1, III:4, XI:1, and XXIII:1(b) of the 
GATT 1994, and Articles 2.2, 5.1.2, and 5.2.1 of the TB T Agreement. Additionally, Canada presented a claim 
under Article 2.1 of the TBT Agreement. Norway also brought a claim under Article 4.2 of the Agreement on 
Agriculture. 
834 Panel Reports, para. 7.85 (refe rring to Appellate Body Report, EC – Sardines , para. 176, in turn 
referring to Appellate Body Report, EC – Asbestos , paras. 66-70; and Appe llate Body Reports, US – Clove 
Cigarettes ; US – Tuna II (Mexico) ; and US – COOL ). 
835 Panel Reports, para. 7.117 (quoting Appellate Body Report, EC – Asbestos , para. 70; and referring to 
Appellate Body Report, EC – Sardines , para. 180). 
836 Panel Reports. para. 7.111. 
837 Panel Reports, para. 7.125. 
838 European Union's other appellant's submission, para. 38 (referring to Panel Reports, para. 7.117). 
839 Panel Reports, para. 7.125. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  regulation.840 In reaching this conclusion, the Panel determined that the prohibition on 
seal-containing products lays down a product characteristic in the negative form by requiring that products placed on the EU market not contain seal.
841 The Panel also found that the EU Seal 
Regime sets out, through its exceptions, the applic able administrative provisions for products with 
"certain characteristics".842 In the light of these findings, the Panel considered it unnecessary to 
examine whether the EU Seal Regime also lays down "related" processes and production methods.
843  
5.3.  On appeal, the European Union argues that the Panel erred by construing the term 
"applicable administrative provisions" as relating to "products" rather than "product characteristics or their related processes and production methods".
844 The European Union underscores that the 
procedural requirements contained in the EU Seal  Regime do not directly pertain to "what the 
Panel considered as a product characteristic laid down in the negative form, namely that the 
products must not contain seal".845 Consequently, they cannot be considered as being "applicable" 
to a product characteristic within the meaning of  Annex 1.1. The European Union further argues 
that the Panel erred in finding that the criteria under the exceptions of the EU Seal Regime lay 
down "product characteristic[s]".846 Instead, they impose requiremen ts relating to the identity of 
the hunter or the type or purpose of the hunt. A ccording to the European Union, the EU Seal 
Regime differs in this respect from the measure at issue in EC – Asbestos , where the exceptions 
themselves laid down product characteristics.847 The European Union cautions that, under the 
Panel's reasoning, "virtually anything that [bears] any relation to a product" could be construed as a product characteristic, and be potentially cons idered a technical regulation subject to the 
disciplines of the TBT Agreement.
848 This, in the European Union's view, would "subsume 
[processes and production methods] into product characteristics" and mean that non-product related processes and production methods (P PMs) would fall within the ambit of the 
TBT Agreement.
849  
5.4.  The European Union further claims that the Panel erred in limiting its analysis of whether the 
measure lays down product characteristics to it s finding that the EU Seal Regime lays down 
characteristics of a product in a negative form, by providing that all products may not contain seal. 
Referring to the Appellate Body's findings in EC – Asbestos , the European Union recalls that the 
proper legal characterization of the measure at i ssue requires that it be examined "as a whole".850 
Thus, it was incorrect for the Panel to assume that a measure can be deemed a technical 
regulation "simply because one of its components meets the criterion for a technical regulation".851 
The Panel should, instead, have based its determination on a consideration of all components of the measure and their respective role in the operation and purpose of the EU Seal Regime.
852 In 
this regard, the European Union highlights that, if the prohibition contained in the EU Seal Regime 
is examined in the light of the IC, MRM, and Travellers exceptions, the measure "cannot be 
reduced to the simple negative intrinsic product characteristic that products may not contain 
seal".853 Nor does the EU Seal Regime, when considered as a whole, lay down "product 
characteristics" within the meaning of Annex 1.1 to the TBT Agreement.854 
5.5.  Canada and Norway consider that the Pane l properly interpreted the scope of Annex 1.1 and 
rightly characterized the EU Seal Regime as a technical regulation. Canada maintains that the 
"administrative provisions" in the EU Seal Regime "apply" to product characteristics because the 
relevant provisions in the Implementing Regulation operate to ensure that products containing seal 
                                               
840 European Union's other appe llant's submission, para. 89. 
841 Panel Reports, para. 7.106. 
842 Panel Reports, para. 7.108. 
843 Panel Reports, para. 7.112. 
844 European Union's other appe llant's submission, para. 53. 
845 European Union's other appe llant's submission, para. 58. 
846 European Union's other appe llant's submission, para. 66. 
847 European Union's other appe llant's submission, para. 59. 
848 European Union's other appe llant's submission, para. 66. 
849 European Union's other appe llant's submission, para. 67. 
850 European Union's other appellant's submission, para. 76 (referring to Appellate Body Report, EC – 
Asbestos , para. 64).  
851 European Union's other appellant's submission, para. 79 (referring to Panel Reports, para. 7.100). 
852 European Union's other appe llant's submission, para. 81. 
853 European Union's other appe llant's submission, para. 88. 
854 European Union's other appe llant's submission, para. 88. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  satisfy the criteria under the exceptions.855 In Canada's view, this is not different from the 
situation in EC – Asbestos , where the administrative provisions in question established a procedure 
to ensure that the criteria set ou t in the exception were satisfied.856 For Canada, the European 
Union's concern that the Panel's approach will lead to an "over-inclusive" interpretation of 
"applicable administrative provisions" is unwarranted.857 Canada further argues that the Panel 
properly examined and based its determination on the relevant elements of the EU Seal Regime, including the prohibitive and permissive aspects of the measure, and the administrative 
procedures. According to Canada, the Panel carefully considered the interplay among the various 
elements of the EU Seal Regime in reaching its conclusion.
858 
5.6.  For its part, Norway argues that the criter ia set out in the exceptions under the EU Seal 
Regime lay down an "intrinsic" feature of the su bject products because they determine "when and 
under what conditions a product may contain a particular input".859 Norway emphasizes that the 
legal situation in these disputes is very similar to the one confronted by the Appellate Body in EC – 
Asbestos , and that the Panel closely followed the Appellate Body's reasoning in that dispute.860 
Norway argues that the basis for the Panel's find ing that the EU Seal Regime lays down product 
characteristics was that the prohibitive elemen ts of the measure, in conjunction with the 
permissive elements that define their scope, lay down a product characteristic in the negative form 
by requiring that all products not contain seal.861 Norway further submits that the administrative 
provisions in the EU Seal Regime are applicable to certain products because these products exhibit or possess the "product characteristic" of containing seal inputs.
862 I n  t h a t  s e n s e ,  a c c o r d i n g  t o  
Norway, these administrative provisions "apply, pertain and relate to the product characteristic".863 
Finally, Norway maintains that the Panel conducted a "holistic analysis" of the EU Seal Regime864, 
and correctly understood the import of EC – Asbestos to mean that "the prohibition and exceptions 
need not 'individually' lay down product characteri stics, so long as, as a whole, they [do] so."865 
5.7.  We turn to review the text of Annex 1.1 in  the light of the various issues implicated by the 
European Union's appeal. 
5.1.2  Interpretation of Annex 1.1 to the TBT Agreement  
5.8.  Article 1.2 of the TBT Agreement stipulates  that "for the purposes of this Agreement the 
meaning of the terms given in Annex 1 applies". Th e first paragraph of Annex 1.1 defines the term 
"technical regulation" as follows: 
Document which lays down product characteristics or their related processes and 
production methods, including the applicable administrative provisions, with which 
compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling re quirements as they apply to a product, 
process or production method. 
5.9.  Annex 1.1 describes a technical regulation by reference to a "document". As noted by the 
Appellate Body in US – Tuna (II) (Mexico) , the use of the term "document" could "cover a broad 
range of instruments or apply to a variety of measures".
866  
                                               
855 Canada's appellee's submission, para. 40. 
856 Canada's appellee's submission, para. 40. 
857 Canada's appellee's submission, para. 41 (quoting  European Union's other appellant's submission, 
para. 56). 
858 Canada's appellee's submission, para. 46 (referring to Panel Reports, para. 7.111). 
859 Norway's appellee's submission, para. 45 (referring  to Norway's second written submission to the 
Panel, para. 146; and Norway's resp onse to Panel question No. 127). 
860 Norway's appellee's submission, paras. 46-64. 
861 Norway's appellee's submission, para. 69 (referring to Panel Reports, paras. 7.106 and 7.111).  
862 Norway's appellee's submission, para. 83. 
863 Norway's appellee's submission, para. 80.  
864 Norway's appellee's submission, para. 89. 
865 Norway's appellee's submission, para. 88 (quoting Panel Reports, para. 7.100). 
866 Appellate Body Report, US – Tuna II (Mexico) , para. 185. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.10.  The first sentence of Annex 1.1 delineates the scope of measures that can be characterized 
as a technical regulation by referring to a document that "lays down product characteristics or their related processes and production methods, including the applicable administrative provisions".
867 The verb "lay down" is defined as "establish, formulate definitely (a principle, a 
rule); prescribe (a course of action, limits, etc.)".868 Annex 1.1 further describes a technical 
regulation by reference to a "document" and makes clear that it is "compliance" with the content of the document laying down product characteristi cs or their related PPMs that must be found to 
be "mandatory". Accordingly, the scope of Anne x 1.1 appears to be limited to those documents 
that establish or prescribe something and thus have a certain normative content. 
5.11.  The first sentence of Annex 1.1 refers to "p roduct characteristics" or "their related processes 
and production methods". Looking first at the meaning of "product characteristics", in EC – 
Asbestos , the Appellate Body explained that the "chara cteristics" of a product include "objectively 
definable 'features', 'qualities', 'attributes', or other 'distinguishing mark' of a product".
869 The 
Appellate Body added that such "product characteristics" might relate, inter alia , to "a product's 
composition, size, shape, colour, texture, hardne ss, tensile strength, flammability, conductivity, 
density, or viscosity".870 The Appellate Body described these characteristics as "features and 
qualities intrinsic to the product itself", adding th at "product characteristics" within the meaning of 
Annex 1.1 may also include "related 'characteristics'".871 As the Appellate Body has noted, a 
technical regulation may lay down "only one or a few 'product characteristics'".872 
5.12.  The definition of a technical regulation furt her provides that such a regulation may prescribe 
"product characteristics or their related [PPMs]". The use here of the disjunctive "or" indicates that 
"related [PPMs]" may play an additional or alternative role vis-à-vis "product characteristics" under 
Annex 1.1. The noun "process" is ordinarily understood to refer to "a course of action, a procedure, a series of actions or operations directed to some end, as in manufacturing".
873 We 
further note that the dictionary defines the term "production" as "[t]he process of being 
manufactured commercially, esp. in large quantities"874, while the word "method" is defined as "a 
(defined or systematic) way of doing a thing".875 The ordinary meaning of the term "related" is 
"[h]aving relation; having mutual relation; connected".876 A plain reading of Annex 1.1 thus 
suggests that a "related" PPM is one that is "connected" or "has a relation" to the characteristics of a product. The word "their", which immediately precedes the words "related processes and production methods", refers back to "product ch aracteristics". Thus, in the context of the first 
sentence of Annex 1.1, we understand the reference to "or their related processes and production 
methods" to indicate that the subject matter of a technical regulation may consist of a process or production method that is related  to product characteristics. In order to determine whether a 
measure lays down related PPMs, a panel thus wi ll have to examine whether the processes and 
production methods prescribed by the measure have a sufficient nexus to the characteristics of a product in order to be considered related to those characteristics. 
5.13.  Continuing with our review of the first sentence of Annex 1.1, we note the reference to 
"applicable administrative provisions", which is linked to the words "product characteristics or their related processes and production methods" by the conjunctive "including". The word "provision" is 
relevantly defined as "a legal or formal statement providing for some particular matter".
877 The 
                                               
867 Appellate Body Report, US – Tuna II (Mexico) , para. 185. 
868 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 1, p. 1562. 
869 Appellate Body Report, EC – Asbestos , para. 67. 
870 Appellate Body Report, EC – Asbestos , para. 67. 
871 Appellate Body Report, EC – Asbestos , para. 67. In that appeal, the Appellate Body considered that 
such "related" characteristics may pertain to "the means of identification, the presentation and the appearance 
of a product". (Ibid.) 
872 Appellate Body Report, EC – Asbestos , para. 67. 
873 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 2356.  
874 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 2359.  
875 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 1, p. 1767. 
876 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 2519. 
877 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 2384.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  adjective "administrative", in turn, is defined as "[p]ertaining to management of affairs".878 The 
term "applicable" in this context indicates that the relevant "administrative provisions" must "refer" to or be "relevant" to the product characteristics or their related PPMs as prescribed in the relevant document.
879 The word "including" suggests that, where a mandatory document laying 
down product characteristics or their related processes and production methods also contains 
"administrative provisions" that refer to those "product characteristics" or "related processes and production methods", those administrative provisions are to be considered as an integral part of 
the technical regulation and are thus subject to the substantive provisions  of the TBT Agreement. 
In the context of Annex 1.1, we understand th e appositive clause "including the applicable 
administrative provisions" to refer to provisions to  be applied by virtue of a governmental mandate 
in relation to either product characteristics or their related processes and production methods.  
5.14.  The second sentence of Annex 1.1 further enumerates specific elements that technical 
regulations "may also include or deal exclusively with", namely, "terminolo gy, symbols, packaging, 
marking or labelling requirements" as they apply to a product, process or production method. The 
use of the words "also include" and "deal exclusively with" at the beginning of the second sentence 
indicates that the second sentence includes elemen ts that are additional to, and may be distinct 
from, those covered by the first sentence of Annex 1.1. 
5.15.  Having reviewed the text of Annex 1.1, we turn to examine whether the Panel erred in its 
application of Annex 1.1 to the facts of this case when it found that the EU Seal Regime constitutes 
a technical regulation. We consider it useful to begin by recalling the relevant aspects of the measure that the Panel found in this case to constitute a "technical regulation" within the meaning 
of Annex 1.1 to the TBT Agreement. 
5.1.3  Whether the EU Seal Regime constitutes a technical regulation 5.1.3.1  Overview of the EU Seal Regime 
5.16.  As noted by the Panel, the EU Seal Regime establishes "rules concerning the placing on the 
market of seal products".
880 Specifically, Article 3(1) of the Basic Regulation prescribes that the 
placing on the market of seal products is allowed "only where the seal products result from hunts 
traditionally conducted by Inuit and other indigenous communities and contribute to their 
subsistence".881 Article 3(2) of the Basic Regulation sets out two "derogations" from Article 3(1). 
First, Article 3(2)(a) allows the importation of a seal product by a traveller under certain conditions. Second, Article 3(2)(b) allows the placing on the market of seal products where: (i) the 
seal products result from by-products of hunting that is regulated by national law; (ii) the hunting 
is conducted for the sole purpose of the sustainable management of marine resources; and (iii) the placing on the market is only on a non-profit basis. Specific requirements for each of the three 
conditions for importing and/or placing seal pr oducts on the market are elaborated in the 
Implementing Regulation.
882  
5.17.  Referring to the IC, MRM, and Travellers ex ceptions, the Panel noted that the conditions set 
out under the EU Seal Regime, together, both allo w and prohibit the placing of seal products on 
the market. The Panel therefore correctly considered  that the EU Seal Regime does not constitute 
a "total" or "general" ban on seal products, but instead "consists of both prohibitive and permissive components and should be examined as such".
883 
                                               
878 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 1, p. 28.  
879 See Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 103.  
880 Panel Reports, para. 7.40 (referring  to Basic Regulation, Article 1). 
881 Panel Reports, para. 7.13 (quoting Basic Regulation, Article 3(1)).  
882 See supra , paras. 4.9-4.11. 
883 Panel Reports, para. 7.54.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.1.3.2  Preliminary remarks 
5.18.  We wish to make three preliminary remarks before we examine the European Union's claims 
regarding the Panel's characterization of the measure at issue under Annex 1.1 to the TBT Agreement. 
5.19.  First, the Appellate Body has emphasized that a determination of whether a 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".
884 As the Appellate Body has explained, this analysis 
should give particular weight to the "integral and essential" aspects of the measure.885 In 
determining whether a measure is a technical regulation, a panel must therefore carefully examine the design and operation of the measure while s eeking to identify its "integral and essential" 
aspects.
886 It is these features of the measure that are to be accorded the most weight for 
purposes of characterizing the measure, and, ther eby, for determining whether it is subject to the 
disciplines of the TBT Agreement. The ultimate conclusion as to the legal characterization of the measure must be made in respect of, and ha ving considered, the measure as a whole.  
5.20.  Second, the issue of how best to characterize a measure at issue which comprises several 
different elements is one that arises in many disput es. The question is of particular significance in 
cases where the inclusion or exclusion of certain elements in the definition of the measure can  
affect the legal characterization, or substantive analysis of the measure. A panel may, in some 
cases, find it appropriate to treat several domestic legal instruments together as a single measure in order to facilitate its analysis of that measure in the light of the claims raised or defences invoked.
887 Conversely, there may be instances where a panel may choose to consider different 
elements set out in a single legal instrument as different "measures", for purposes of its 
analysis.888 As regards the measure at issue in the present disputes, the Panel noted that: (i) the 
Basic Regulation and the Implementing Regulation "operate in conjunction with each other in 
governing the importation and the placing of seal products on the EU market"889; (ii) the 
permissive and the prohibitive elements of th e measure are intertwined within the EU Seal 
Regime890; and (iii) the parties agreed that the EU Seal Regime should be treated as a single 
measure.891 For the purpose of Annex 1.1, we therefore consider it appropriate to draw 
conclusions regarding the legal characterization of the EU Seal Regime as a whole on the basis of an integrated analysis of the constituent parts of the measure. 
5.21.  Third, regarding the scope of this aspect of the European Union's appeal, we recall that the 
European Union does not contest the Panel's findin g that the measure applies to an "identifiable 
group of products"
892 or the Panel's determination that the measure imposes mandatory 
compliance.893 We consider it useful nonetheless to note, as did the Panel, that the product scope 
of the EU Seal Regime is defined in Article 2(2) of the Basic Regulation as "all products, either 
processed or unprocessed, deriving or obtained fr om seals, including meat, oil, blubber, organs, 
raw fur skins and fur skins, tanned or dressed, including fur skins assembled in plates, crosses and 
similar forms, and articles made from fur skins". This confirms that the measure at issue applies to 
an identifiable group of products, that is, seal products as defined in Article 2(2).  
                                               
884 Appellate Body Report, US – Tuna II (Mexico) , para. 188 (referring to Appellate Body Reports, EC – 
Asbestos , para. 64; and EC – Sardines , paras. 192 and 193). 
885 Appellate Body Report, EC – Asbestos , para. 72. 
886 Appellate Body Report, EC – Asbestos , para. 72. 
887 For example, in EC – Bananas III , the EC Banana Regime comprised the Council Regulation 
(EEC) 404/931 "and the subsequent EC legislation, regulations and administrative measures, including those reflecting the provisions of the Framework Agreemen t on Bananas, which implemented, supplemented and 
amended that regime".  (Panel Reports, EC – Bananas III , para. 1.1) Treating multip le legal instruments as a 
single measure does not preclude a complainant from ch allenging different aspects of such a measure under 
different provisions of th e WTO covered agreements.  
888 See e.g. Appellate Body Report, Brazil – Retreaded Tyres , paras. 126 and 127. 
889 Panel Reports, para. 7.26. 
890 For example, in the case of the IC exception, Arti cle 3(1) of the Basic Regulation prescribes that the 
placing on the market  of seal products is allowed " only where the seal products re sult from hunts traditionally 
conducted by Inuit and other indigenous communities an d contribute to their subsistence". (emphasis added) 
891 Panel Reports, para. 7.26 (referring to pa rties' responses to Panel question No. 2). 
892 Panel Reports, para. 7.117. 
893 Panel Reports, para. 7.125. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.22.  Moreover, the EU Seal Regime is mandatory in the sense that it prescribes rules concerning 
the placing on the market of seal products "in a binding or compulsory fashion".894 Specifically, the 
EU Seal Regime prohibits seal products from the EU market, except in cases where they meet the 
conditions prescribed in Article 3 of the Basic Re gulation and Articles 3 and 5 of the Implementing 
Regulation. The mandatory nature of the EU Seal Regime is therefore found in the conditions that 
govern the placing on the EU market of seal pr oducts, as defined in Article 2(2) of the Basic 
Regulation.  
5.23.  Although the Panel's findings regarding these features of the EU Seal Regime have not been 
appealed, they may nonetheless assist us in determining whether, in the light of the design and operation of the EU Seal Regime, the Panel properly determined that the measure lays down product characteristics, including the applicable administrative provisions, and, therefore, 
constitutes a "technical regulation" within the meaning of Annex 1.1. 
5.24.  With these considerations in mind, we turn to examine the Panel's analysis of the EU Seal 
Regime in the light of the European Union's appeal. 
5.1.3.3  Whether the EU Seal Regime lays down product characteristics including the 
applicable administrative provisions 
5.1.3.3.1  The Panel's approach 
5.25.  Referring to the Appellate Body report in EC – Asbestos , the Panel stated that it would 
"proceed to examine the prohibitive and permissive aspects of the EU Seal Regime with a view to 
determining whether the EU Seal Regime, taken as a whole, lays down product characteristics or their related PPMs within the meaning of Annex 1.1".
895 The Panel recalled the Appellate Body's 
finding in EC – Asbestos  that the prohibition on asbestos fibres "as such" did not lay down "product 
characteristics" because it simply banned asbestos fibres in their natural state.896 The Panel further 
noted, however, that the prohibition on asbestos-containing products was found by the Appellate 
Body "to lay down a product characteristic in the negative form by requiring that all products must 
not contain asbestos".897 Turning to the measure at issue in the instant disputes, the Panel 
observed that the EU Seal Regime "prohibits all seal products, whether they are made exclusively 
of seal or contain seal as an input" and that it makes an exception "with regard to the import 
and/or placing on the market of seal products in  three situations, namely when they result from 
IC hunts, MRM hunts, or in the case of Travellers imports".898 Based on the text of the measure, 
and in the light of the reasoning of the Appellate Body in EC – Asbestos , the Panel concluded: 
[W]e believe that the prohibition on seal-containing products under the EU Seal 
Regime lays down a product characteristic in the negative form by requiring that all products not contain seal.[*]
899 
[*fn original] 153 We note that such conclusion is not affected by the fact that the prohibition of 
seals "in their natural state" might not, in itself, prescribe or impose any "characteristics". In this 
regard, Norway argues that the appropriate analog ues to the "raw mineral form" of asbestos in 
the context of the EU Seal Regime would be live seals or unprocessed seal carcasses. In Norway's view, the majority of seal products ar e in fact "mixed" products, i.e. they must be 
combined with other products derived from other sources. (Norway's second written submission, paras. 154-155). 
                                               
894 Appellate Body Report, EC – Asbestos , para. 68.  
895 Panel Reports, para. 7.102. See also para. 7.99 (referring to Appellate Body Report, EC – Asbestos , 
para. 64). 
896 Panel Reports, para. 7.104 (referring to Appellate Body Report, EC – Asbestos , para. 71). See also 
Panel Reports, para. 7.99. 
897 Panel Reports, para. 7.104. 
898 Panel Reports, para. 7.105 (referring to Basic Regulation, Articles 3(1), 3(2)(a), and 3(2)(b)). 
899 Panel Reports, para. 7.106. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.26.  On appeal, the European Union recalls that the proper legal character of the measure at 
issue cannot be determined unless the measure is examined "as a whole".900 According to the 
European Union, if the prohibition contained in the EU Seal Regime is examined in the light of the IC, MRM, and Travellers exceptions, the measure "cannot be reduced to the simple negative 
intrinsic product characteristic that products may not contain seal".
901  
5.27.  The Panel's reasoning on the issue of whether the EU Seal Regime lays down product 
characteristics is limited to the brief passage set out above. Moreover, the conclusion the Panel 
reached in paragraph 7.106 of the Panel Reports pertains to the "prohibition on seal-containing 
products".902 The Panel then proceeded to find, in paragr aph 7.108, that the EU Seal Regime sets 
out, through its exceptions, "applicable administrative provisions" without assessing the weight that should properly be ascribed to those elemen ts of the measure in identifying the essential and 
integral aspects of the measure. Subsequently, in paragraph 7.111 of its Reports, the Panel stated, 
without further reasoning, that the EU Seal Regime "considered as a whole" lays down characteristics for all products that might contain seal.  
5.28.  We disagree with the approach adopted by  the Panel. The Panel stated that the EU Seal 
Regime "consists of both prohibitive and permi ssive components and should be examined as 
such"
903, explaining that the "prohibitive" component of the EU Seal Regime "operates as a ban on 
seal products", while the "permissive" component consists of "an exception and two derogations, 
forming three conditions prescribed in Article 3 of the Basic Regulation (i.e. seal products obtained from IC hunts, MRM hunts, and those imported  under the Travellers imports category)".
904 
Although the Panel set out to "examine the prohibitive and permissive aspects of the EU Seal 
Regime with a view to determining whether the EU Seal Regime, taken as a whole, lays down 
product characteristics or their relate d PPMs within the meaning of Annex 1.1"905, it appears that 
the Panel's conclusion that the measure lays down product characteristics rests on its assessment 
of a single component of the measure. In other words, having compartmentalized its assessment 
of the various components of the EU Seal Regime in this manner, the Panel seemed satisfied once 
it had found that the prohibition on seal-containing products laid down product characteristics in 
the negative form. The Panel then proceeded to find that other components of the measure, 
i.e. the exceptions under the EU Seal Regime, constitute "applicable administrative provisions" because they "define the scope of the prohibition" of the EU Seal Regime; and that the "nature of 
the exceptions is to allow products containing seal" subject to "strict administrative requirements" 
based on a "set of criteria".
906 It is not apparent from its Reports that the Panel conducted a 
holistic assessment of the weight and relevance of each of the relevant components of the EU Seal 
Regime before reaching a conclusion as to the legal characterization of the measure "as a whole". 
5.29.  As noted, the Appellate Body has emphasized that a determination of whether a 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".
907 In EC – Asbestos , the Appellate Body placed 
particular emphasis on the "integral and essential" aspects of the measure908, "taking into account, 
as appropriate, the prohibitive and the permissive elements that are part of it".909 In order to 
determine the proper legal characterization of the EU Seal Regime, the Panel should therefore have examined the design and operation of the me asure while seeking to identify its "integral and 
essential" aspects before reaching a final conclusion  as to the legal characterization of the measure 
                                               
900 European Union's other appellant's submission, para. 76 (referring to Panel Reports, para. 7.101).  
901 European Union's other appe llant's submission, para. 88. 
902 Panel Reports, para. 7.106. 
903 Panel Reports, para. 7.54.  
904 Panel Reports, para. 7.56. 
905 Panel Reports, para. 7.102. 
906 Panel Reports, para. 7.108. We further note in this regard that the Panel found that the criteria 
under the exceptions of the EU Seal Regime constitute "o bjectively definable features" of the seal products and 
"consequently lay down particular 'characteristics' of  the final products". (Panel Reports, para. 7.110) 
907 Appellate Body Report, US – Tuna II (Mexico) , para. 188 (referring to Appellate Body Reports, EC – 
Asbestos , para. 64; and EC – Sardines , paras. 192 and 193). 
908 Appellate Body Report, EC – Asbestos , para. 72. 
909 Appellate Body Report, EC – Asbestos , para. 64. In reaching this conc lusion, the Appellate Body took 
into account the content of Canada's request for the establishment of a panel (i.e. Canada's identification of the Decree concerned as "the measure at issue") as well  as the content of the measure itself (consisting of 
prohibitions and limited exceptions). The Appellate Body  then examined each component (i.e. prohibitions and 
exceptions) of the measure before making an overall assessment of whether the measure, viewed as an integrated whole, was a "technical regulation" within the meaning of Annex 1.1.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  in respect of, and having considered, the measure as a whole. Although a measure that comprises, 
among other elements, a prohibition of seal-containing products may include a component that appears to prescribe product characteristics, we consider the Panel to have erred, to the extent it reached a final conclusion as to the legal character of the measure on the basis of an examination 
of the aspect of the EU Seal Regime that sets out a "prohibition on seal-containing products" taken 
alone.
910 The Panel could not have properly reached a conclusion as to the legal character of the 
measure at issue without analysing the weight and relevance of the essential and integral 
elements of the measure as an integrated whole. 
5.30.  Having expressed our concern regarding the overall approach adopted by the Panel, we turn 
to address the participants' arguments as they relate to the three specific aspects of the EU Seal Regime: (i) the prohibition on products consisting exclusively of seal (pure seal products); (ii) the 
prohibition on seal-containing products ("mixed" products); and (iii) the conditions under the 
IC/MRM/Travellers exceptions. Then, to the extent necessary, we address the participants' arguments regarding the applicable administrative provisions. We do so in order to assess 
whether, and to what extent, these aspects of the measure have features prescribing product 
characteristics while seeking to identify the e ssential and integral features of the measure. 
Following our examination of the EU Seal Regime as a whole, we draw a conclusion as to whether 
the Panel erred in finding that the measure lays down product characteristics including applicable 
administrative provisions in the sense of Annex 1.1 to the TBT Agreement.  
5.1.3.3.2  Prohibitive and permissive elements 5.31.  We note, first, that the Appellate Body has previously explained that a measure "may 
provide, positively, that products must possess certain 'characteristics'", or it "may require, 
negatively, that products must not possess certain 'characteristics'".
911 As the Appellate Body has 
explained, the legal result is the same in both cases: "the document 'lays down' certain binding 
'characteristics' for products, in one case affirmatively, and in the other by negative 
implication."912  
5.32.  The European Union observes that one aspect of the EU Seal Regime consists of a 
prohibition on pure seal products.913 According to the European Union, the Panel erred by failing to 
take into account that such a ban on pure seal products does not set out product characteristics. The European Union adds that this aspect of the measure is similar to the prohibition of asbestos fibres "as such" in EC – Asbestos , which the Appellate Body found did not constitute a technical 
regulation.
914  
5.33.  Norway counters that the mere fact that th e EU Seal Regime applies to pure seal products 
does not preclude the measure from being characterized as a technical regulation, considering that 
it lays down characteristics for all products containing seal inputs.915 Norway adds that the 
majority of seal products subject to the EU Seal Regime are "mixed products" that include non-seal inputs, such as "tanned seal fur skin; boots with seal fur skins; slippers with seal fur skin; 
refined seal oil; omega-3 oil capsules; and processed seal meat".
916 According to Norway, "the 
extent of pure seal products is so limited" that it does not affect the overall finding made by the Panel that the EU Seal Regime lays down product characteristics for all products that might contain seal inputs.
917  
                                               
910 Panel Reports, para. 7.106. 
911 Appellate Body Report, EC – Asbestos , para. 69. (emphasis original) 
912 Appellate Body Report, EC – Asbestos , para. 69.  
913 The Panel concluded on the basis of its examination of the text and legislative history of the EU Seal 
Regime, as well as other evidence pert aining to its design, structure, and operation, that the objective of the 
EU Seal Regime is "to address the mora l concerns of the EU public with regard to the welfare of seals". (Panel 
Reports, para. 7.410) 
914 European Union's other appellant's submission, para. 33 (referring to Appellate Body Report, EC – 
Asbestos , paras. 71 and 72). 
915 Norway's appellee's submission, para. 95. 
916 Norway's appellee's submission, para. 96 (referring to  Norway's first written su bmission to the Panel, 
paras. 85-102). 
917 Norway's appellee's submission, para. 96. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.34.   In EC – Asbestos , the Appellate Body observed that the measure at issue prohibited 
asbestos fibres in their raw form.918 The Appellate Body found that if a measure consisted only of a 
prohibition on a product in its natural state, it might not constitute a technical regulation. Specifically, the Appellate Body stated: 
The first and second paragraphs of Article 1 of the Decree [96-1133] impose a 
prohibition on asbestos fibres , as such. This prohibition on these fibres does not, in 
itself, prescribe or impose any "characteristics" on asbestos fibres, but simply bans 
them in their natural state. Accordingly, if this measure consisted only of a prohibition 
on asbestos fibres , it might not constitute a "technical regulation".
919 
5.35.  We agree with the European Union that a prohibition of pure seal products does not 
prescribe or impose any "characteristics" on such products. Unlike in EC – Asbestos , where it was 
undisputed that asbestos fibres had "n o known use in their raw mineral form"920, products 
consisting exclusively of seal are used, consumed and traded to a considerable extent even though trade in "mixed products" has surpassed tr ade in seal products in recent years.
921  
5.36.  We agree with the European Union that  the Panel should therefore have assessed the 
relevance of this aspect of the measure in order to determine whether it was a part of the integral and essential aspects of the measure and, if so, what weight it should ascribe to it in determining 
whether the EU Seal Regime, as a whole, lays do wn product characteristics. As noted, however, 
rather than conducting such an assessment, the Pa nel simply stated in footnote 153 of its Reports, 
that its conclusion that the measure lays down product characteristics is "not affected by the fact that the prohibition of seals 'in their natural state' might not, in itself, prescribe or impose any 
'characteristics'".
922 This does not, in our view, show sufficient consideration of the integral and 
essential aspects of the measure as a whole. 
5.37.  We turn next to examine the EU Seal Regime as it applies to products containing seal as an 
input. With regard to products containing seal and other ingredients ("mixed" products), the 
European Union argues that the Panel should have also taken into account, together with the prohibition on seal-containing products, the exceptions under the measure, "because it is the 
permissive elements, together  with the prohibition, that determine the situations where seal 
products may be placed on the European Union market".
923 In response, Canada argues that the 
Panel correctly found that the EU Seal Regime "[lays] down a product characteristic in the negative form by requiring that 'all products not contain seal'".
924  
5.38.  For its part, Norway argues that the Pane l took the exceptions under the EU Seal Regime 
"into account in finding that the measure as a whole lays down product characteristics".925 Norway 
notes, in particular, that the Panel reasoned that the exceptions "define the scope of the 
prohibition" of the EU Seal Regime and that the "nature of the exceptions is to allow products 
containing seal" subject to "strict administrative requirements" under the measure.926  
5.39.  In EC – Asbestos , the Appellate Body found that an "integral and essential aspect of the 
measure [was] the regulation of ' products containing asbestos fibres '".927 The Appellate Body 
attached importance to the fact that the measure at issue in that case effectively prescribed "certain objective features, qualities or 'characteristics' on all  products".
928 The prohibition on 
seal-containing products as such may be seen as imposing certain "objective features, qualities or 
characteristics" on all products by providing that they may not contain seal. Yet, that prohibition is 
but one of the components of the EU Seal Regime  and has to be analysed together with other 
                                               
918 Appellate Body Report, EC – Asbestos , para. 71. 
919 Appellate Body Report, EC – Asbestos , para. 71. (emphasis original) 
920 Appellate Body Report, EC – Asbestos , para. 72 (referring to Panel Report, EC – Asbestos , 
paras. 3.418 and 3.439). 
921 Panel Reports, paras. 7.240 and 7.241. 
922 Panel Reports, fn. 153 to para. 7.106 (quoting Appellate Body Report, EC – Asbestos , para. 71). 
923 European Union's other appellant' s submission, para. 34 (referring to  European Union's first written 
submission to the Panel, para. 216). (emphasis original) 
924 Canada's appellee's submission, para. 37 (referring to Panel Reports, para. 7.106). 
925 Norway's appellee's submission, para. 49. 
926 Norway's appellee's submission, para. 50 (quoting Panel Reports, para. 7.108).  
927 Appellate Body Report, EC – Asbestos , para. 72. (emphasis original) 
928 Appellate Body Report, EC – Asbestos , para. 72. (emphasis omitted) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  components of the measure before reaching a conclusion under Annex 1.1. As the Appellate Body 
has previously noted, "the proper legal character of the measure at issue cannot be determined unless the measure is examined as a whole."
929 Moreover, the Appellate Body in EC – Asbestos  did 
not conclude that the relevant French Decree qualified as a technical regulation merely on the 
basis of its intermediate finding that the aspect of the measure setting out a prohibition on "mixed 
products" prescribed "certain objective features, qualities or 'characteristics' on all products".930 
Rather, the Appellate Body reached its conclusion only after further examining other aspects of the 
measure (i.e. certain exceptions to such prohibition). Given that the EU Seal Regime "consists of 
both prohibitive and permissive components"931, we consider it necessary further to examine the 
permissive elements of the measure before drawing,  on the basis of all relevant components of the 
EU Seal Regime, an overall conclusion as to whether the measure prescribes product 
characteristics. 
5.40.  As noted, Article 1 of the Basic Regulation, entitled "Subject matter", states that the 
Regulation establishes "rules concerning the placing on the market of seal products". Article 3, the 
key substantive provision of the Basic Regulation, entitled "Conditions for placing on the market", 
starts with a paragraph prescribing that the plac ing on the market of seal products shall be 
allowed only where the seal products result from hunts traditionally conducted by Inuit and other 
indigenous communities and contribute to their subsistence.932 The second paragraph of Article 3 
provides for two situations where derogation from paragraph 1 is allowed. First, the placing on the 
market of seal products on a non-profit basis is allowed where a seal product is derived from MRM hunts and is not being placed on the market for "commercial reasons" (Article 3(2)(b)).
933 
Second, the import by travellers of a seal product is allowed to the extent that it is not for 
"commercial reasons" (Article 3(2)(a)). Specific requirements for each of the three conditions for importing and/or placing seal products on the ma rket are elaborated in other parts of the Basic 
Regulation and the Implementing Regulation.
934 
5.41.  Before turning to examine the conditions under the exceptions, we consider it helpful to 
observe the different features of the measures at issue in EC – Asbestos  and in these disputes. 
First, we note that, under the French Decree, asbestos-containing products were regulated  
due to the carcinogenicity or toxicity of the physical properties of the subject products  
– i.e. the fact that those products contained asbestos fibres. By contrast, the EU Seal Regime does not prohibit seal-containing products merely on the basis that such products contain seal as an 
input. Rather, such prohibition is imposed subject to conditions based on criteria relating to the 
identity of the hunter or the type or purpose of the hunt from which the product is derived.  In EC – Asbestos , by contrast, the identity of the producer or manufacturer, or the type or purpose 
of manufacturing, did not feature in the French Decree as conditions for the prohibition or 
permission to place asbestos products on the market. Moreover, the prohibition of products containing asbestos set out in Article 1, paragraphs I and II of the French Decree, was an "integral 
and essential aspect" of the measure at issue in EC – Asbestos .
935 On the other hand, under the 
EU Seal Regime, in particular, Article 3 of the Basic Regulation, the prohibition on the products containing seal seems to be derivative of the three (IC/MRM/Travellers) market access conditions, that is, the permissive component of the measure. 
5.42.  In addition, we note the difficulty of verifying precisely whether a particular product contains 
seal as an input.
936 This may suggest, albeit indirectly, that  the regulation of the "mixed products" 
is not an equally important feature of the EU Seal Regime as far as the operation  of the measure is 
concerned, as it was the case for the regulation of products containing chrysotile asbestos fibres 
under the measure at issue in EC – Asbestos . Finally, we note that, with respect to the exceptions 
regarding crysotile asbestos fibres, pursuant to Article 2 of the French Decree at issue  
in EC – Asbestos , the exceptions under that measure applied on "an exceptional and temporary 
                                               
929 Appellate Body Report, EC – Asbestos , para. 64. 
930 Appellate Body Report, EC – Asbestos , para. 72. (emphasis omitted) 
931 Panel Reports, para. 7.54. 
932 Panel Reports, para. 7.13.  
933 Article 3(2)(b) of the Basic Regulation states, at the end: "The nature and quantity of the seal 
products shall not be such as to indicate that they are being placed on the market  for commercial reasons." 
(emphasis added) 
934 See supra , paras. 4.9-4.11. 
935 Appellate Body Report, EC – Asbestos , para. 72. 
936 European Union's response to qu estioning at the oral hearing. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  basis"937 and the Appellate Body referred to these as "limited exceptions"938, which is not the case 
for the exceptions under the EU Seal Regime. 
5.43.  We now turn to examine whether the cond itions under the exceptions of the EU Seal 
Regime have features prescribing product characteristics. 
5.44.  The complainants confirmed at the oral hear ing that they did not allege that the exceptions 
under the EU Seal Regime, when considered alone, lay down product characteristics.939 The 
European Union asserts, however, that the Panel did make such a finding, and points to the 
following reasoning by the Panel: 
[O]nly seals obtained from the specific type of hunter and/or the qualifying hunts may 
be used in making final products. These criteria in our view constitute "objectively definable features" of the seal products that are allowed to be placed on the 
EU market and consequently lay down particular "characteristics" of the final products. 
Therefore, as was the case in EC – Asbestos , the exceptions under the EU Seal 
Regime identify a group of products with particular "characteristics" through a 
narrowly defined set of criteria.
940 
5.45.  The Panel's discussion cited above gives the impression that the Panel treated the identity 
of the hunter, the type of hunt, and the purpose of the hunt as "product characteristics" within the 
meaning of Annex 1.1. In particular, we note that the Panel referred to these as "objectively 
definable features" of seal products that "lay down particular 'characteristics' of the final products".
941 We consider the Panel to have erred in this regard. We see no basis in the text of 
Annex 1.1, or in prior Appellate Body reports, to  suggest that the identity of the hunter, the type 
of hunt, or the purpose of the hunt could be viewed as product characteristics.942 Nor do we see a 
basis to find that the market access conditions under the exceptions to the EU Seal Regime exhibit features setting out product characteristics.  
5.46.  We now turn to examine the participants' arguments regarding the "applicable 
administrative provisions". 
5.1.3.3.3  Applicable administrative provisions 
5.47.  As noted by the Panel, Articles 6 thro ugh 10 of the Implementing Regulation prescribe 
procedural requirements that must be met to pl ace seal products on the market. For example, 
under Article 7 of the Implementing Regulation, for a seal product to be placed on the market, it must be accompanied by an attesting document is sued by a recognized body, and a reference to 
the attesting document number must be included in any further invoice.
943 Competent authorities 
designated by the EU member States may verify the certificates accompanying imported products, 
and monitor the issuing of certificates by recognized bodies established in their territory.944 
Similarly, with regard to the Travellers exceptio n, the EU Seal Regime includes a requirement to 
present, for products imported to the European Un ion, a written notification of import to customs 
authorities.945 
5.48.  The Panel found that the EU Seal Regime sets out, through its exceptions, the "applicable 
administrative provisions" "for products with certain objective 'characteristics'".946 The Panel 
explained in this regard that the exceptions und er the EU Seal Regime constitute "applicable 
                                               
937 Appellate Body Report, EC – Asbestos , para. 2 (quoting French Decree, Article 2). 
938 Appellate Body Report, EC – Asbestos , para. 73. 
939 Canada's and Norway's responses to  questioning at the oral hearing. 
940 Panel Reports, para. 7.110.  
941 Panel Reports, para. 7.110. 
942 We note in this regard that Article 2.9 of th e TBT Agreement envisages that technical regulations 
have "technical content". While the term "technical" can have a range of meanings, it does not appear plausible that a measure that purporte dly distinguishes between seal products on the basis of criteria relating 
to the identity of the hunter and the purpose of the hunt would be "technical" in nature or have "technical" content. 
943 Implementing Regulation, Article 7. 
944 Implementing Regulation, Article 9(1). 
945 Implementing Regulation, Article 4(3). 
946 Panel Reports, para. 7.108. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  administrative provisions" because they "define the scope of the prohibition" of the EU Seal 
Regime.947 The Panel further noted that the "nature of the exceptions is to allow products 
containing seal" subject to "strict administrative requirements" based on a "set of criteria".948 
5.49.  The European Union argues on appeal that the Panel erred in considering that the word 
"applicable" pertains to products rather than "product characteristics or their related processes and 
production methods".949 Pointing to the text of Annex 1.1, the European Union observes that 
"[t]he reference to 'applicable administrative provisions' immediately follows the mention of 
'product characteristics or their related processes and production methods'", with the two 
categories being linked by "the conjunctive term 'including'".950 Regarding the measure at issue, 
the European Union contends that, while the procedural requirements contained in the 
Implementing Regulation might be described as ad ministrative provisions, they "do not directly 
pertain to … what the Panel considered as a product characteristic laid down in the negative form, 
namely that the products must not contain seal".951 Instead, they regulate trade in seal 
products.952 For the European Union, they cannot therefore be considered as being "applicable" to 
a product characteristic within the meaning of Annex 1.1. 
5.50.  Canada counters that the administrative prov isions in the EU Seal Regime "apply to product 
characteristics in the sense that the administrative provisions operate to ensure that products that 
exhibit the product characteristic of containing seal satisfy the criteria set out in the exceptions".953 
According to Canada, the European Union was therefore "misguided" in its concern that the Panel's reasoning leads to an "over-inclusive" characterization of "applicable administrative provisions".
954 
5.51.  Norway agrees with the Panel's finding that the EU Seal Regime "prescribes 'applicable 
administrative provisions' for products with certain objective characteristics".955 The administrative 
provisions under the measure at issue in EC – Asbestos applied to products possessing the 
regulated product characteristic of containing chrysotile asbestos956, while the exceptions under 
the EU Seal Regime include administrative provisions, which "'apply' to products possessing the 
regulated product characteristic" of containing seal.957 According to Norway, "the close nexus 
between 'administrative provisions' and 'product characteristics' arises because  the products 
exhibit or possess the 'product characteristic' laid down in the document in question."958 
5.52.  As noted above, we read the clause "including the applicable administrative provisions" in 
Annex 1.1 to refer to provisions to be applied by virtue of a governmental mandate in relation to  
either product characteristics or their related processes and production methods. To the extent 
that the essential and integral aspects of the EU Se al Regime that were identified above do not set 
out product characteristics, it follows that their related administrative provisions cannot be characterized as being applicable to product characteristics.  
5.53.  We further note that the EU Seal Regime differs from the measure at issue in EC – Asbestos  
in the sense that the exceptions contained in the latter measure were found by the Appellate Body to involve product characteristics, and the Appellate Body could therefore find that the 
"administrative provisions" in that dispute applied  to such product characteristics. Specifically, in 
EC – Asbestos , the Appellate Body found that the nature of the exceptions in that case was to 
permit "the use of certain products containing chrysotile asbestos fibres , subject to compliance 
with strict administrative requirements".
959 The Appellate Body added that "[t]he scope of the 
                                               
947 Panel Reports, para. 7.108. 
948 Panel Reports, para. 7.108. 
949 European Union's other appellant's submission, para. 53 (referring to Panel Reports, para. 7.108). 
950 European Union's other appe llant's submission, para. 55. 
951 European Union's other appe llant's submission, para. 58. 
952 European Union's other appe llant's submission, para. 58. 
953 Canada's appellee's submission, para. 40 (referri ng to the European Union's other appellant's 
submission, para. 55). 
954 Canada's appellee's submission, para. 41 (quo ting the European Union's other appellant's 
submission, para. 56). 
955 Norway's appellee's submission, para. 63 (referring to Panel Reports, para. 7.109). 
956 Norway's appellee's submission, para. 61 (referring to Appellate Body Report, EC – Asbestos , 
para. 73). 
957 Norway's appellee's submission, para. 63. 
958 Norway's appellee's submission, para. 80. (emphasis original) 
959 Appellate Body Report, EC – Asbestos , para. 73. (emphasis added) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  exceptions [was] determined by an 'exhaustive list' of products that are permitted to contain 
chrysotile asbestos fibres ".960 It is uncontested that the conditions governing the exception  
in EC – Asbestos  applied to products possessing defined objective characteristics – i.e. products 
containing chrysotile asbestos fibres. Moreover, the inclusion of a product in the list of exceptions 
depended "on the absence of an acceptable alternative fibre for incorporation into a particular 
product , and the demonstrable provision of 'all technical guarantees of safety'".961 We further note 
that, under the measure at issue in EC – Asbestos , the alternative fibre, the absence of which gave 
rise to the exception, was designed to be incorporated  into a particular product and provide all 
technical guarantees of safety, which would seem to be features closely related to product characteristics. 
5.54.  Ultimately, the Appellate Body considered that, through these exceptions , the measure at 
issue in EC – Asbestos  set out " applicable administrative provisions " for products with particular 
characteristics.
962 Unlike the measure at issue in EC – Asbestos , the EU Seal Regime does not 
prohibit (or permit) the importation or placing on the EU market of products depending on whether 
or not they contain  seal as an input. Instead, as the Panel observed:  
[I]n order to fall under the IC or MRM exceptions, products containing seal must meet 
inter alia  the following criteria relating to seal hunts from which the seals used as their 
input are derived: the identity of the hunt er (Inuit or indigenous); the type of hunt 
(traditional Inuit hunts); the purpose of the hunt (subsistence or marine resource management); and the way in which the products are marketed (non-systematically and on a non-profit basis).
963  
5.55.  In this way, the measure conditions market access on the type and purpose of the seal 
hunt, and the identity of the hunter.964 As we pointed out above, such criteria do not constitute 
product characteristics in the sense of Annex 1.1.  
5.56.  Referring to Articles 3(2), 5(2), and 7(1) of the Implementing Regulation, the Panel noted 
that, under the EU Seal Regime: 
Any person wishing to import and/or place seal products on the market under these 
exceptions must have such products certified by a recognized body as meeting the 
necessary criteria under each exception. Furthermore, the products must be accompanied by an attesting document at the time of placing on the market. In addition, with respect to the particular unit of seal products for which it is issued, the 
attesting document indicates whether the products result from hunts conducted by 
Inuit or other indigenous communities, or from hunts for the sustainable management of marine resources.
965 
5.57.  Although the administrative provisions under the EU Seal Regime "apply" to products 
containing seal, this does not, in our view, mean that the measure at issue amounts to a technical regulation for that reason alone. Rather, as we see it, the administrative provisions serve to 
identify the exempted products, through the type  and purpose of the relevant seal hunt, and the 
identity of the hunter. The administrative provisions under the EU Seal Regime also require that these products be certified by a recognized body as meeting the necessary criteria under each exception.
966 Yet, when viewed together with the exceptions under the EU Seal Regime, we 
consider that this aspect of the measure is ancillary, and does not render the measure a "technical 
regulation" within the meaning of Annex 1.1. 
                                               
960 Appellate Body Report, EC – Asbestos , para. 73. (emphasis added) 
961 Appellate Body Report, EC – Asbestos , para. 73. (emphasis added) 
962 Appellate Body Report, EC – Asbestos , para. 74 (referring to Panel Report,  EC – Asbestos , 
para. 8.69). (emphasis added) 
963 Panel Reports, para. 7.109. (fn omitted) 
964 See supra , paras. 4.4-4.11. 
965 Panel Reports, para. 7.109. (fns omitted) 
966 Articles 6 through 10 of the Implementing Regulation prescribe the procedural requirements that 
must be met to place seal products  on the EU market, that is, for a seal product to be placed on the 
EU market, it must be accompanied by an attesting document  (Article 7) issued by a recognized body 
(Article 6). A reference to the a ttesting document number must be included in any further invoice 
(Article 7(4)). A model attesting document is attached as an annex to the Implementing Regulation. (See Panel 
Reports, para. 7.24) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.1.3.3.4  Conclusion  
5.58.  Having reviewed the relevant aspects of the EU Seal Regime, we see only one feature that 
may suggest that the measure lays down product char acteristics, while all others suggest that this 
is not the case. For example, to the extent that the measure regulates  the placing on the 
EU market of pure seal products, which is a pa rt of the integral and essential aspects of the 
measure, it does not prescribe or impose any "characteristi cs" on the products themselves. To the 
extent the measure prohibits the placing on the EU market of seal-containing products, it could be 
seen as imposing certain "objective features, qualities or characteristics" on all products by 
providing that they may not contain seal. However, as stated above, we are not persuaded that this part of the Regulation constitutes the main  feature of the measure at issue. Moreover, the 
EU Seal Regime's prohibition of "mixed" products differs, to a considerable extent, from the 
prohibitive aspects of the French Decree under EC – Asbestos . More importantly, as noted by the 
Panel, the EU Seal Regime "consists of both proh ibitive and permissive components and should be 
examined as such".
967 As we see it, when the prohibitive aspects of the EU Seal Regime are 
considered in the light of the IC and MRM exceptio ns, it becomes apparent that the measure is not 
concerned with banning the placing on the EU ma rket of seal products as such. Instead, it 
establishes the conditions for placing seal products on the EU market based on criteria relating to 
the identity of the hunter or the type or purpose of the hunt from which the product is derived. We 
view this as the main feature of the measure. That being so, we do not consider that the measure as a whole lays down product characteristics. This is not changed by the fact that the administrative provisions under the EU Seal Re gime may "apply" to products containing seal. 
5.59.  In the light of the above, we reverse the Panel's findings, in paragraphs 7.111 and 7.112 of 
the Panel Reports, that the EU Seal Regime lays down product characteristics. The Panel's 
conclusion that the EU Seal Regime constitutes a "technical regulation" relied on its intermediate 
finding that the EU Seal Regime lays down product characteristics. Accordingly, having reversed 
this finding by the Panel, we also reverse the Panel's findings in paragraphs 7.125 and 8.2(a) of 
the Panel Reports that the EU Seal Regime constitutes a "technical regulation" within the meaning 
of Annex 1.1 to the TBT Agreement.  
5.60.  In our analysis above, we have addressed the participants' arguments as they pertain to the 
Panel's interpretation and application of the terms "product characteristics" and "applicable administrative provisions" in the first sentence of Annex 1.1. In doing so, we have focused on the 
text and the immediate context found in Annex 1. 1 as well as on previous jurisprudence by the 
Appellate Body. In future cases, depending on th e nature of the measure and the circumstances of 
the case, a panel may find it helpful to seek further contextual guidance in other provisions of the 
TBT Agreement, for example, those pertaining to standards
968, international standards969, and 
conformity assessment procedures970, in delimiting the contours of the term "technical 
regulation".971 It may also be relevant for a panel to examine supplementary means of 
interpretation such as the negotiating history of the TBT Agreement or the types and the nature of 
claims that have been brought by the complainants. Indeed, as the Appellate Body has emphasized, a determination of whether a measure constitutes a technical regulation "must be made in the light of the characteristics of th e measure at issue and the circumstances of the 
case".
972 
                                               
967 Panel Reports, para. 7.54. 
968 TBT Agreement, Annex 1.2. 
969 TBT Agreement, Articles 2.4, 2.5, 2.6, and 2.9. 
970 TBT Agreement, Article 5 and Annex 1.3. If the requirements set out in a measure are not apt to be 
subject to "conformity assessment procedures" as defined in Annex 1.3, this may be an indication that the measure at issue is not a technical regulation. 
971 Thus, for example, if a measure has characteristics of a "standard" within the meaning of Annex 1.2, 
it would not constitute a technical regulation. In determining whether this is the case, it may also be relevant 
to consider provisions such as Articles 2.4, 2.5, 2.6, and 2.9 of the TBT Agreement.  
972 Appellate Body Report, US – Tuna II (Mexico) , para. 188 (referring to Appellate Body Reports,  
EC – Asbestos , para. 64; and EC – Sardines , paras. 192 and 193). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.1.3.4  Completing the legal analysis 
5.61.  We note that both Canada and Norway have requested, should we find that the Panel erred 
in determining that the EU Seal Regime lays down "product characteristics" and/or "applicable administrative provisions" within the meaning of An nex 1.1, and reverse either of those findings of 
the Panel, that we complete the analysis and find that the EU Seal Regime constitutes a "technical 
regulation" within the meaning of  Annex 1.1 to the TBT Agreement.
973 Hence, having reversed the 
Panel's finding that the measure lays down "product characteristics", we now consider whether we 
can complete the legal analysis as requested by the complainants.  
5.62.  We begin by noting that, in its Notice of Other Appeal, the European Union appealed the 
Panel's finding that the EU Seal Regime is a "technical regulation" and alleged specifically that the Panel erred: (i) in finding the exceptions under the EU Seal Regime constitute "applicable 
administrative provisions"; (ii) in concluding that the measure laid down "product characteristics"; 
and (iii) in failing to make a holistic assessment of the measure at issue. In our reasoning above, we have addressed each of the issues raised on appeal by the European Union.  
5.63.  In some previous disputes, the Appellate Body has completed the analysis with a view to 
facilitating the prompt settlement and effective resolution of the dispute.
974 However, the Appellate 
Body has done so only if the factual findings of the panel and the undisputed facts on the panel 
record provide it with a sufficient basis for its own analysis.975 In addition, the Appellate Body has 
been unable to complete the legal analysis in the light of the complexity of the legal issues involved, in conjunction with the absence of full exploration of the issues before the panel, and, 
consequently, considerations pertaining to parties' due process rights.
976 Moreover, the Appellate 
Body has declined to complete the legal analysis of a panel in circumstances where that would 
involve addressing claims "which the panel had not examined at all".977 
5.64.  Turning to the specific case before us, we recall that the first sentence of Annex 1.1 
indicates that the subject matter of a technical regulation may consist of either "product 
characteristics" or "their related processes and production methods". Hence, we might, in 
principle, be able to complete the analysis by ruling on whether the EU Seal Regime lays down 
"their related processes and production methods" and therefore qualifies as a technical regulation 
even though it does not lay down product characteristics.  
5.65.  The European Union argued at the oral hearing that the Appellate Body would not be in a 
position to determine whether the EU Seal Regime lays down "related processes and production 
methods" in the absence of sufficient factual findin gs by the Panel. We are not entirely convinced. 
As we see it, the text of the measure provides us with some basis to determine whether the EU Seal Regime lays down "related processes and production methods" within the meaning of 
                                               
973 Canada's appellee's submission, para. 66; Norway's appellee's submission, para. 101. 
974 See e.g. Appellate Body Reports,  Australia – Salmon , paras. 117 and 118; US – Wheat Gluten , 
paras. 80-92; and Canada – Aircraft (Article 21.5 – Brazil) , paras. 43-52. 
975 See Appellate Body Reports, Australia – Salmon , paras. 241 and 255; Korea – Dairy , para. 102; 
Canada – Autos , paras. 133 and 144; and Korea – Various Measures on Beef , para. 128. See also Appellate 
Body Reports, EC – Asbestos , para. 79; and EC – Export Subsidies on Sugar , para. 337. 
976 See Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , 
para. 5.224 (referring to Appellate Body Report, EC – Export Subsidies on Sugar , fn 537 to para. 339). In EC – 
Export Subsidies on Sugar , the Appellate Body stated that, "in the light of Article 21 of the Agreement on 
Agriculture  and the chapeau of Article 3 of the SCM Agreement , the question of the applicability of the 
SCM Agreement  to the export subsidies in this dispute raises  a number of complex issues." (Appellate Body 
Report, EC – Export Subsidies on Sugar , para. 339 (referring to Appellate Body Report, US – Upland Cotton , 
paras. 532 and 533, in turn quoting Appellate Body Report, EC – Bananas III , para. 155; and referring to 
Appellate Body Report, Chile – Price Band System , para. 186)) In that case, th e Appellate Body considered 
that, "in the absence of a full exploration of these issu es, completing the analysis might affect the due process 
rights of the participants." (Ibid.) 
977 Appellate Body Report, EC – Asbestos , para. 79. See also Appellate Body Report, EC – Poultry , 
para. 107. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 116 - 
 
  Annex 1.1. The European Union has not explained to us why factual findings in this regard would 
have been required and which factual findings are missing.978  
5.66.  Norway argued before the Panel, as an alte rnative to its argument that the EU Seal Regime 
lays down "product characteristics", that the measure at issue "prescribes related PPMs within the 
meaning of Annex 1.1".979 Norway asserted that a PPM is laid down through the IC and 
MRM exceptions. With respect to the IC category , Norway argued that "the IC requirements 
prescribe a 'process' involving a particular course of  action (a traditional hunt by specified persons) 
with a defined end (the production of se al products for community subsistence)."980 Regarding the 
MRM category, Norway claimed that "the measure imposes a particular course of action relating to the purpose of the hunt (sustainable marine resource management); the way in which the hunt is conducted (regulated at national level pursuant to a resource management plan); and the way in 
which the seal products are marketed (not-for-profit, non-commercial nature and quantity)."
981 
Furthermore, "the action also has a defined end (the sale of MRM by-products)."982 Norway further 
argued that the processes prescribed through the IC and MRM exceptions under the EU Seal 
Regime "'relate' to defined product characteristics" in the sense that they lay down "when a 
product containing seal can be marketed".983 For its part, Canada argued that "the identity of the 
producers of a product could be a relevant factor in the identification of a PPM."984 In particular, 
Canada noted that "certain elements of the Inuit Communities category could be characterized as 
[PPMs]".985 
5.67.  Although the Panel recognized in its Reports986 that the complainants had made arguments 
on "related PPMs" in the alternative, it also noted that "[t]he meaning of the phrase 'their related 
PPMs' has not yet been examined in a WTO dispute."987 In addition, the Panel expressly stated that 
it did "not find it necessary to examine whether the EU Seal Regime also lays down PPMs".988 The 
Panel did not develop any interpretation of "related  PPMs", nor did it make any findings on whether 
the EU Seal Regime lays down "related processes and production methods".989 Under the Panel's 
logic, as it found the EU Seal Regime to lay down product characteristics including the applicable administrative provisions, it saw no reason to examine this issue. Consequently, the Panel 
proceedings were conducted without the Panel exploring this issue with the parties, and we thus 
lack the benefit of sufficient elaboration by the parties of their arguments on this matter. 
5.68.  In their written submissions on appeal, th e complainants have not developed argumentation 
on whether and why the EU Seal Regime lays down related PPMs. At the oral hearing, Norway 
reiterated its argument that a PPM is "related" to product characteristics when compliance with the 
prescribed PPM determines whether a product can or cannot have a particular characteristic.
990 For 
its part, Canada confirmed at the oral hearing that it had not argued in these proceedings that the 
                                               
978 In China – Auto Parts , the Appellate Body recalled that: 
[T]he municipal law of WTO Members may serve no t only as evidence of facts, but also as 
evidence of compliance or non-compliance with international obligations. When a panel examines the municipal law of a WTO Member for purpos es of determining whether the Member has 
complied with its WTO obligations, that determin ation is a legal characterization by a panel, and 
is therefore subject to appellate review under Article 17.6 of the DSU. The Appellate Body has 
reviewed the meaning of a Member's municipal law, on its face, to determine whether the legal characterization by the panel was in error, in particular  when the claim before the panel 
concerned whether a specific instrument of municipal law was, as such, inconsistent with a Member's obligations. 
(Appellate Body Reports, China – Auto Parts , para. 225 (fns omitted)) 
979 Panel Reports, para. 7.90. 
980 Panel Reports, para. 7.90 (referring to Norway's second written submission to the Panel, para. 162). 
981 Panel Reports, para. 7.90 (referring to Norway's second written submission to the Panel, para. 162). 
982 Panel Reports, para. 7.90 (referring to Norway's second written submission to the Panel, para. 162). 
983 Norway's second written submission to the Panel, para. 162. 
984 Panel Reports, para. 7.91 (referring to Canada's  response to Panel question No. 21, para. 109). 
985 Panel Reports, para. 7.91 (quoting Canada's re sponse to Panel question No. 21, para. 109). 
986 Panel Reports, paras. 7.90 and 7.91. 
987 Panel Reports, para. 7.103. 
988 Panel Reports, para. 7.112. 
989 In US – Gambling , the Appellate Body noted that, "in some instances, a panel's decision to continue 
its legal analysis and to make factual findings beyond those that are strictly nece ssary to resolve the dispute 
may assist the Appellate Body should it later be called upon to complete the analysis".989 (Appellate Body 
Report, US – Gambling , para. 344) 
990 Norway's response to questi oning at the oral hearing. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  IC and MRM requirements are "related" PPMs.991 Norway similarly indicated that it did not consider 
that the conditions under exceptions of the EU Seal Regime, taken alone, amount to related PPMs.
992 Norway emphasized, however, that the conditions under the exceptions, when considered 
together with other elements of the measure, make the EU Seal Regime as a whole a technical 
regulation.993 
5.69.  As noted994, the Appellate Body has refrained from completing the legal analysis in view of 
the novel character of an issue which the panel "had not examined at all" and on which the Panel 
had made no findings. Importantly, it has not completed the analysis in the absence of a full 
exploration of issues before the panel that might have given rise to concerns about the parties' due process rights. We believe that all these elements are present in this case. We further note that the line between PPMs that fall, and those that do not fall, within the scope of the 
TBT Agreement raises important systemic issues. Although we explored the issue of whether the 
EU Seal Regime lays down related PPMs with the participants and third participants at the oral 
hearing, and while the participants' answers to the Division's questions did shed at least some light 
on the issue, we consider that in order to develop an interpretation of that phrase in the first 
sentence of Annex 1.1 and in order to reach a conclusion in this respect regarding the EU Seal Regime, more argumentation by the participants and exploration in questioning would have been 
required. The Panel has made no findings on this issue and the question was not explored by the 
Panel. Moreover, the complainants focused in their argumentation on the issue of whether the EU Seal Regime lays down "product characteristics" and "applicable administrative provisions" within the meaning of Annex 1.1. In these circumstances, we do not consider it appropriate to 
complete the legal analysis by ruling on whether the EU Seal Regime lays down "related processes 
and production methods" within the meaning of Annex 1.1 to the TBT Agreement. 
5.1.4  Overall conclusion 
5.70.  Having reversed the Panel's finding that  the EU Seal Regime constitutes a technical 
regulation subject to the disciplines of the TBT Agreement and having found that we are not in a 
position to complete the legal analysis in this case, we declare moot and of no legal effect the 
Panel's findings under Articles 2.1, 2.2, 5.1.2, and 5.2.1 of the TBT Agreement. 
5.2  Article I:1 and Arti cle III:4 of the GATT 1994 
5.71.  We turn now to consider the European Union's appeal of the Panel's findings under 
Articles I:1 and III:4 of the GATT 1994. The Europe an Union appeals the Panel's interpretation of 
Articles I:1 and III:4, as well as the Panel's conclusion that the EU Seal Regime is inconsistent with 
Article I:1. The European Union does not appeal th e Panel's conclusion that the EU Seal Regime is 
inconsistent with Article III:4 of the GATT 1994.995  
5.72.  With regard to the Panel's interpretation  of Articles I:1 and III:4, the European Union 
requests the Appellate Body to reverse the Panel's finding that the legal standard for the non-discrimination obligations under Article 2.1 of the TBT Agreement does not "equally apply" to 
claims under Articles I:1 and III:4 of the GATT 1994.
996 With respect to the Panel's conclusion 
under Article I:1, the European Union requests the Appellate Body to reverse the Panel's finding that the measure at issue is inconsistent with Article I:1 because it does not "immediately and unconditionally" extend the same market acce ss advantage accorded to seal products of 
Greenlandic origin to like seal products of Canadian and Norwegian origin.
997 The European Union's 
                                               
991 See also Canada's response to Panel question No. 21, paras. 108-110. 
992 Canada's and Norway's responses to  questioning at the oral hearing. 
993 Norway's response to questi oning at the oral hearing. 
994 See supra , para. 5.63. 
995 Norway's appellee's submission, para. 227; European Union's response to questioning at the oral 
hearing. 
996 European Union's other appellant's submission , para. 310. Article 2.1 of the TBT Agreement 
provides: "Members shall ensure that in respect of tech nical regulations, products imported from the territory 
of any Member shall be accorded treatment no less favourab le than that accorded to like products of national 
origin and to like products originating in any other country." 
997 European Union's other appellant's submission, paras. 314 and 315 (referring to Panel Reports, 
para. 7.600). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  challenge of the Panel's conclusion under Article I:1 is based entirely on the alleged errors in the 
Panel's interpretation of that provision.998 
5.73.  Canada and Norway contend that the Panel wa s correct in finding that the legal standard for 
the non-discrimination obligations under Article 2.1 of the TBT Agreement does not apply equally 
to claims under Articles I:1 and III:4 of the GATT 1994. Thus, Canada and Norway request the 
Appellate Body to reject the European Union's appe al of the Panel's interpretation of Articles I:1 
and III:4, and of the Panel's conclusion that the measure at issue is inconsistent with Article I:1.999 
5.74.  In addressing the European Union's appeal, we begin by reviewing the Panel's findings with 
respect to the relationship between the non-discrimination obligations under Articles I:1 and III:4 of the GATT 1994, on the one hand, and Article 2. 1 of the TBT Agreement, on the other hand. 
5.2.1  The Panel's findings 
5.75.  At the outset of its analysis, the Panel co nsidered that, because the complainants had raised 
claims under the non-discrimination obligations of both the GATT 1994 and the TBT Agreement, it 
was useful "to review the relationship between , and the legal standards under, the GATT 1994 and 
the TBT Agreement" before examining the specific claims under the GATT 1994.
1000  
5.76.  The Panel noted that the Appellate Body ha d provided guidance on the relationship between 
the obligations under the TBT Agreement and the GATT 1994 in recent disputes involving claims 
under the TBT Agreement.1001 Referring to previous Appellate Bo dy reports, the Panel found that:  
[U]nder the GATT 1994 (Articles I:1 and III:4) … the "treatment no less favourable" 
standard prohibits WTO Members from modifying the conditions of competition in the marketplace to the detriment of the group of imported products vis-à-vis  the group of 
domestic like products, whereas under the TBT Agreement, the "treatment no less 
favourable" standard does not prohibit detrimental impact on imports that stems exclusively from a legitimate regulatory distinction rather than reflecting 
discrimination against the group of imported products.
1002  
5.77.  Based on this understanding of, on the one hand, Articles I:1 and III:4 of the GATT 1994, 
and, on the other hand, Article 2.1 of the TBT Ag reement, the Panel rejected the European Union's 
argument that the legal standard under Article 2.1 applies equally to claims under  
Articles I:1 and III:4.1003 The Panel explained that, under the GATT 1994, the objective of trade 
liberalization – including the obligation to respect the non-discrimination obligations under Articles I:1 and III:4 – is balanced against the right of Members to regulate under Article XX  
of the GATT 1994.
1004 According to the Panel, the additional element in the analysis under 
Article 2.1 – whether a measure's detrimental impact on imports stems exclusively from a 
legitimate regulatory distinction – reflects the absence in the TBT Agreement of a general 
exceptions provision that resembles Article XX of the GATT 1994.1005  
5.2.2  The legal standards of the obligations  under Article I:1 and Article III:4 of the 
GATT 1994 
5.78.  We note that, in reviewing the European Union's argument that the legal standard of the 
obligations under Article 2.1 of the TBT Agreement applies equally to claims under Articles I:1 and III:4 of the GATT 1994, the Panel appears to have focused its analysis on the phrase 
"treatment no less favourable" – a phrase contained in Article 2.1 of the TBT Agreement and 
                                               
998 European Union's response to qu estioning at the oral hearing. 
999 Canada's appellee's submission, paras. 255 and 262; Norway's appellee's submission, paras. 317 
and 329. 
1000 Panel Reports, para. 7.581.  
1001 Panel Reports, para. 7.582 (referring to Appellate Body Reports, US – Clove Cigarettes ; US – 
Tuna II (Mexico) ; and US – COOL ). 
1002 Panel Reports, para. 7.585 (referring to Appellate Body Reports, US – Clove Cigarettes , 
paras. 180-182 and 215; and US – Tuna II (Mexico) , para. 215). 
1003 Panel Reports, para. 7.586 (referring to European Union's first written submission to the Panel, 
para. 528). 
1004 Panel Reports, para. 7.586. 
1005 Panel Reports, para. 7.585. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Article III:4 of the GATT 1994, but not found in  Article I:1 of the GATT 1994. For example, 
referring to Articles I and III of the GATT 1994, the Panel stated that "under the GATT 1994 the 
'treatment no less favourable' standard prohibits WTO Members from modifying the conditions of competition in the marketplace to the detriment of the group of imported products vis-à-vis the 
group of domestic like products".
1006 Thus, it seems to us that the Panel assimilated the legal 
standards under Articles I:1 and III:4, insofar as it found that, for the purposes of establishing an inconsistency with both provisions, a demonstration that a measure modifies the conditions of 
competition to the detriment of like imported products is dispositive. We consider it useful, 
therefore, to make some general observations ab out the similarities and differences between these 
two provisions, before turning to address the Euro pean Union's specific claims on appeal under 
Articles I:1 and III:4.  
5.79.  First, although the most favoured nation (MFN) and national treatment obligations under 
Articles I:1 and III:4 are both fundamental non-discrimination obligations under the GATT 1994, their points of comparison, for the purposes of determining whether a measure discriminates 
between like products, are not the same. On the one hand, the MFN obligation under Article I:1 
proscribes, with respect to measures falling within its scope of application, discriminatory treatment between and among  like products of different origins. On the other hand, the national 
treatment obligation under Article III:4 proscribes, with respect to measures falling within its 
scope of application, discriminatory treatment of imported  products vis-à-vis like domestic  
products. 
5.80.  Second, we note that Article I:1 incorporates "all matters referred to in paragraphs 2 and 4 
of Article III". Thus, there is overlap in the scope of application of Articles I:1 and III:4, insofar as 
"internal matters may be within the purview of the MFN obligation".
1007 
5.81.  Third, there are textual differences betw een Articles I:1 and III:4. Like the national 
treatment and MFN obligations under Article 2.1 of the TBT Agreement, the national treatment 
obligation under Article III:4 of the GATT 1994 is also expressed through a "treatment no less favourable" standard. By contrast, as Canada rightly points out, the MFN obligation in Article I:1 of 
the GATT 1994 is not expressed through a "treatment no less favourable" standard.
1008 Instead, 
the legal standard under Article I:1 of the GATT 19 94 is expressed through an obligation to extend 
any "advantage" granted by a Member to any product originating in or destined for any other 
country "immediately and unconditionally" to the "like product" originating in or destined for all 
other Members. 
5.82.  Finally, we observe that, notwithstandin g the textual differences between Articles I:1 
and III:4, each provision is concerned, fundamenta lly, with prohibiting discriminatory measures by 
requiring, in the context of Article I:1, equalit y of competitive opportunities for like imported 
products from all Members, and, in the cont ext of Article III:4, equality of competitive 
opportunities for imported products and like domestic products.1009 It is for this reason that neither 
Article I:1 nor Article III:4 require a demonstration of the actual  trade effects of a specific 
measure. 
                                               
1006 Panel Reports, para. 7.585 (referring to Appellate Body Reports, US – Clove Cigarettes , 
paras. 180-182 and 215; and US – Tuna II (Mexico) , para. 215). We note that, in the paragraphs of the 
Appellate Body reports cited by the Pa nel, the Appellate Body made observations concerning the relationship 
between the national treatm ent obligations articulated in Article III: 4 of the GATT 1994 and Article 2.1 of the 
TBT Agreement. The Appellate Body did not, as the Pa nel seems to suggest, comment specifically on the 
relationship between the mo st favoured nation (MFN) obligations in  Article 2.1 of the TBT Agreement and 
Article I:1 of the GATT 1994. 
1007 Panel Reports, EC – Bananas III , para. 7.176. See also Panel Report, EC – Trademarks and 
Geographical Indications (US) , para. 7.713.  
1008 Canada's appellee's submission, para. 211. 
1009 In the context of Article III:4 of the GATT 1994, see Appellate Body Reports, US – Clove Cigarettes , 
para. 176 (referring to GATT Panel Report, US – Section 337 Tariff Act , para. 5.10); China – Publications and 
Audiovisual Products , para. 305 (referring to Appellate Body Report, Korea – Various Measures on Beef , 
paras. 135 and 136); Thailand – Cigarettes (Philippines) , para. 126 (referring to Appellate Body Report, 
Japan – Alcoholic Beverages II , p. 16, DSR 1996:I, p. 109); and Korea – Alcoholic Beverages , para. 127. In the 
context of Article I:1 of the GATT 1994, see Panel Reports, US – COOL , para. 7.571 (referring to Panel Report, 
Colombia – Ports of Entry , para. 7.236, in turn referring to Panel Report, Argentina – Hides and Leather , 
para. 11.20, in turn referring to Appellate Body Reports, Japan – Alcoholic Beverages II , p. 16, DSR 1996:I, 
p. 109; and Korea – Alcoholic Beverages , paras. 119, 120, and 127).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.83.  With these considerations in mind, we examine separately the Panel's interpretation of the 
legal standards under Article I:1 and Article III:4, respectively. We begin with the European Union's claim that the Panel erred in finding that the legal standard for the non-discrimination obligations under Article 2.1 of the TBT Agreement does not equally apply to claims under Article 
I:1 of the GATT 1994. 
5.2.3  Article I:1 of the GATT 1994 5.84.  The issue before us is whether the legal standard for the non-discrimination obligations 
under Article 2.1 of the TBT Agreement applies equally to claims under Article I:1 of the 
GATT 1994. We must thus consider whether Article I:1 prohibits: (i) a detrimental impact on competitive opportunities for like imported products; or (ii) only a detrimental impact on competitive opportunities for like imported products that does not stem exclusively from a 
legitimate regulatory distinction. We understan d the European Union to argue on appeal that 
Article I:1 prohibits only the latter. Thus, in the European Union's view, an analysis of a claim under Article I:1 entails an assessment of whether the detrimental impact on competitive 
opportunities for like imported products stems exclusively from a legitimate regulatory 
distinction.
1010  
5.85.  Article I:1 of the GATT 1994 provides: 
General Most-Favoured-Nation Treatment 
1. With respect to customs duties and charges of any kind imposed on or in 
connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with  respect to the method of levying such 
duties and charges, and with respect to all rules and formalities in connection with 
importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III,[] any advantage, favour, privilege or immunity 
granted by any Member to any product origin ating in or destined for any other country 
shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other Members. 
5.86.  Article I:1 sets out a fundamental non-discrimination obligation under the GATT 1994. The 
obligation set out in Article I:1 has been describ ed by the Appellate Body as "pervasive", a 
"cornerstone of the GATT", and "one of  the pillars of the WTO trading system".
1011 Based on the 
text of Article I:1, the following elements must be demonstrated to establish an inconsistency with 
that provision: (i) that the measure at issue fall s within the scope of application of Article I:1; 
(ii) that the imported products at issue are "lik e" products within the meaning of Article I:1; 
(iii) that the measure at issue confers an "advanta ge, favour, privilege, or immunity" on a product 
originating in the territory of any country; and (iv)  that the advantage so accorded is not extended 
"immediately" and "unconditionally" to "like" products originating in the territory of all Members. Thus, if a Member grants any advantage to any product originating in the territory of any other 
country, such advantage must be accorded "immed iately and unconditionally" to like products 
originating from all other Members.  
5.87.  Article I:1 thus prohibits discrimination among like imported products originating in, or 
destined for, different countries.
1012 In so doing, Article I:1 protects expectations of equal 
competitive opportunities for like im ported products from all Members.1013 As stated above, it is for 
this reason that an inconsistency with Article I:1 is not contingent upon the actual trade effects of a measure. We consider that an interpretation of the legal standard of the obligation under 
Article I:1 must take into account the fundamental purpose of Article I:1, namely, to preserve the 
equality of competitive opportunities for li ke imported products from all Members. 
                                               
1010 European Union's other appe llant's submission, para. 313. 
1011 Appellate Body Report, EC – Tariff Preferences , para. 101 (referring to Appellate Body Reports,  
Canada – Autos , para. 69; and US – Section 211 Appropriations Act , para. 297). 
1012 Appellate Body Report, Canada – Autos , para. 84. 
1013 Panel Reports, US – COOL , para. 7.571 (referring to Panel Report, Colombia – Ports of Entry , 
para. 7.236, in turn referring to Panel Report, Argentina – Hides and Leather , para. 11.20, in turn referring to 
Appellate Body Reports, Japan – Alcoholic Beverages II , p. 16, DSR 1996:I, p. 109; and Korea – Alcoholic 
Beverages , paras. 119, 120, and 127).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.88.  Under Article I:1, a Member is proscribed from granting an "advantage" to imported 
products that is not "immediately" and "unconditionally" extended to like imported products from all Members. This means, in our view, that an y advantage granted by a Member to imported 
products must be made available "unconditionally", or without conditions , to like imported 
products from all Members.
1014 However, as Article I:1 is concerned, fundamentally, with 
protecting expectations of equal competitive opportunities for like imported products from all Members, it does not follow that Article I:1 prohibits a Member from attaching any conditions to 
the granting of an "advantage" within the meanin g of Article I:1. Instead, it prohibits those 
conditions that have a detrimental impact on the competitive opportunities for like imported products from any Member. Conversely, Article I:1 permits regulatory distinctions to be drawn 
between like imported products, provided that such distinctions do not result in a detrimental 
impact on the competitive opportunities for like imported products from any Member. 
5.89.  For the European Union, the analysis under Article I:1 is not limited to an assessment of 
whether a measure has a detrimental impact on competitive opportunities for like imported 
products. Instead, if it is found that a measure has a detrimental impact on competitive 
opportunities for like imported products, the analysis under Article I:1 must consider further the rationale for such impact, and, more specifically, whether it stems exclusively from a legitimate 
regulatory distinction.  
5.90.  Contrary to what the European Union suggests,  we see no basis in the text of Article I:1 to 
find that, for the purposes of establishing an inconsistency with that provision, it must be demonstrated that the detrimental impact of a measure on competitive opportunities for like 
imported products does not stem exclusively from a legitimate regulatory distinction. Instead, we 
consider that, where a measure modifies the conditions of competition between like imported products to the detriment of the third-country imported products at issue, it is inconsistent with 
Article I:1. 
5.91.  The European Union advances three arguments to support its claim that the Panel erred in 
finding that the legal standard for the non-discrimination obligation under Article 2.1 of the 
TBT Agreement does not apply equally to claims under Articles I:1 and III:4 of the GATT 1994: 
(i) that the Panel's interpretation is "contrary to  established Appellate Body jurisprudence" under 
Article III:4
1015; (ii) that the Panel's interpretation fails to take account of the context provided by 
Article III:1; and (iii) that the Panel's interpretation is incoherent with the interpretation of 
Article 2.1 of the TBT Agreement and renders Article 2.1 "irrelevant".1016 
5.92.  The arguments advanced by the European Union do not, in our view, provide a basis for 
interpreting the legal standard under Article I:1 as requiring an inquiry into whether the 
detrimental impact of a measure on competitive opportunities for like imported products stems 
exclusively from a legitimate regulatory distinct ion. We note, as argued by Norway and Canada, 
that the European Union's arguments rely prin cipally on WTO jurisprudence developed under 
Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement.1017 Moreover, the European 
Union's arguments appear to be directed at the Pa nel's interpretation of the term "treatment no 
less favourable" in Article III:4 of the GATT 1994. Thus, we consider these arguments in examining the Panel's interpretation of the legal standard under that provision. 
5.93.  In the light of the above, we consider th at Article I:1 prohibits Members from conditioning 
the extension of an "advantage", within the mean ing of Article I:1, on criteria that have a 
detrimental impact on the competitive opportunities for like imported products from any Member. 
A panel is not required, under Article I:1, to assess whether the detrimental impact of a measure 
on competitive opportunities for like imported products stems exclusively from a legitimate regulatory distinction. Such an assessment is a necessary analytical element of Article 2.1 of the 
TBT Agreement, but not of Article I:1 of the GATT 1994. 
5.94.  In the light of the above, we reject the European Union's claim on appeal that the Panel 
erred in finding that the legal standard for the non-discrimination obligations under Article 2.1 of 
the TBT Agreement does not apply equally to claims under Article I:1 of the GATT 1994. 
                                               
1014 Panel Report, EC – Tariff Preferences , para. 7.59. 
1015 European Union's other appellant's submission, para. 289. 
1016 European Union's other appellant's submission, para. 289. 
1017 Canada's appellee's submission, para. 210; Norw ay's appellee's submission, paras. 262 and 276. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.95.  We note that, in these disputes, the Panel concluded that the measure at issue, although 
origin-neutral on its face, is de facto  inconsistent with Article I:1. The Panel found that, while 
virtually all Greenlandic seal products are likely to qualify under the IC exception for access to the E U  m a r k e t ,  t h e  v a s t  m a j o r i t y  o f  s e a l  p r o d u c t s  f r o m  C a n a d a  a n d  N o r w a y  d o  n o t  m e e t  t h e  
IC requirements for access to the EU market. Thus, the Panel found that, "in terms of its design, 
structure, and expected operation", the measure at issue detrimentally affects the conditions of competition for Canadian and Norwegian seal products as compared to seal products originating in 
Greenland.
1018 Based on these findings, the Panel considered, correctly in our view, that the 
measure at issue is inconsistent with Article I:1 because it does not, "immediately and unconditionally", extend the same market access advantage to Canadian and Norwegian seal products that it accords to seal products originating from Greenland.
1019 
5.96.  Given that the European Union's challenge of the Panel's conclusion under Article I:1 is 
based entirely on the alleged errors in the Panel's interpretation of that provision1020, and given 
that we have rejected the European Union's appeal in this regard, we have no basis to disturb the 
Panel's finding that the EU Seal Regime is inconsistent with Article I:1 of the GATT 1994. We 
therefore uphold the Panel's finding, in paragrap h 7.600 of the Panel Reports, that the measure at 
issue is inconsistent with the European Union's obligation under Article I:1 of the GATT 1994. 
5.2.4  Article III:4 of the GATT 1994 
5.97.  We turn now to consider whether, as ar gued by the European Union, the legal standard 
under Article III:4 entails an inquiry into whether the detrimental impact of a measure on competitive opportunities for like imported products stems exclusively from a legitimate regulatory 
distinction.  
5.98.  Article III:4 of the GATT 1994 provides: 
National Treatment on Internal Taxation and Regulation 
… 
4. The products of the territory of any Memb er imported into the territory of any other 
Member shall be accorded treatment no less favourable than that accorded to like 
products of national origin in respect of all laws, regulations and requirements 
affecting their internal sale, offering for sa le, purchase, transportation, distribution or 
use. The provisions of this paragraph shall not prevent the application of differential 
internal transportation charges which are ba sed exclusively on the economic operation 
of the means of transport and not on  the nationality of the product. 
5.99.  There are three elements that must be demonstrated to establish that a measure is 
inconsistent with Article III:4: (i) that the imported and domestic products are "like products"; 
(ii) that the measure at issue is a "law, regulation, or requirement affecting the internal sale, 
offering for sale, purchase, transportation, distribution, or use" of the products at issue; and (iii) that the treatment accorded to imported products is "less favourable" than that accorded to 
like domestic products.
1021  
5.100.  The European Union's appeal is directed at the Panel's interpretation of the term 
"treatment no less favourable" in Article III:4. The participants dispute whether, for the purposes of establishing a violation of Article III:4, a finding that a measure has a detrimental impact on 
competitive opportunities for imported products, compared to like domestic products, is 
                                               
1018 Panel Reports, para. 7.597. 
1019 Panel Reports, para. 7.600. Although some aspects of the Panel's reasoning can be read as 
suggesting that an analysis of the actual trade effect s of a measure is necessary under Article I:1 of the 
GATT 1994, we consider that the Panel's reliance on the "design, structure, and expected operation " of the 
measure highlights that, under Article I:1, the focus of the analysis is on the impact of a measure on 
competitive opportunities  for like imported products, rather than the actual trade effects  of a measure. 
(emphasis added) 
1020 European Union's response to qu estioning at the oral hearing. 
1021 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 127 (referring to Appellate Body 
Report, Korea – Various Measures on Beef , para. 133). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  dispositive. The European Union submits that a panel must conduct an additional inquiry into 
whether the detrimental impact on competitive opportunities for like imported products stems exclusively from a legitimate regulatory distinction. Thus, in the European Union's view, the legal standard for the non-discrimination obligations under Article 2.1 of the TBT Agreement applies 
equally to claims under Article III:4. By contrast, Canada and Norway contend that this additional 
inquiry is a necessary step in the analysis under Article 2.1 of the TBT Agreement, but not under Article III:4 of the GATT 1994.  
5.101.  The meaning of the term "treatment no less favourable" in Article III:4 has been 
considered by panels and the Appellate Body in prior disputes. As a result, the following propositions are well established. First, the term "treatment no less favourable" requires effective equality of opportunities for imported products  to compete with like domestic products.
1022 Second, 
a formal difference in treatment between imported and domestic like products is neither 
necessary, nor sufficient, to establish that imported products are accorded less favourable treatment than that accorded to like domestic products.
1023 Third, because Article III:4 is 
concerned with ensuring effective equality of competitive opportunities for imported products, a 
determination of whether imported products are treated less favourably than like domestic products involves an assessment of the implications of the contested measure for the equality of 
competitive conditions between imported and like domestic products.
1024 If the outcome of this 
assessment is that the measure has a detrimental impact on the conditions of competition for like imported products, then such detrimental impact w ill amount to treatment that is "less favourable" 
within the meaning of Article III:4.
1025 Finally, for a measure to be found to modify the conditions 
of competition  in the relevant market to the detriment of imported products, there must be a 
"genuine relationship" between the measure at issue and the adverse impact on competitive opportunities for imported products.
1026 
5.102.  In response to questioning at the oral hear ing, the European Union explained that it is not 
suggesting that the legal standard of the obligatio n under Article 2.1 of the TBT Agreement should 
be transposed to Article III:4 of the GATT 1994. Instead, the European Union argues that WTO 
jurisprudence under Article III:4 establishes that the analysis of whether imported products are 
accorded treatment less favourable than that accorded to like domestic products "goes beyond" a consideration of the detrimental effect of a measure on the competitive opportunities for like imported products.  
5.103.  The European Union contends that, in Dominican Republic – Import and Sale of Cigarettes , 
the Appellate Body found that a detrimental effect on imports alone does not indicate that a measure accords de facto  "less favourable treatment" to imports under Article III:4.
1027 In this 
regard, the European Union notes that, in US – Clove Cigarettes , the Appellate Body clarified that 
a violation of Article III:4 had not been established in Dominican Republic – Import and Sale of 
Cigarettes , because the detrimental impact on competitive opportunities for like imported products 
was not attributable to the specific measure at issue.1028  
                                               
1022 Appellate Body Reports, US – Clove Cigarettes , para. 176 (referring to GATT Panel Report, US – 
Section 337 Tariff Act , para. 5.10); China – Publications and Audiovisual Products , para. 305 (referring to 
Appellate Body Report, Korea – Various Measures on Beef , paras. 135 and 136); and Thailand – Cigarettes 
(Philippines) , para. 126 (referring to Appellate Body Report, Japan – Alcoholic Beverages II , p. 16, DSR 1996:I, 
p. 109). 
1023 Appellate Body Reports, US – Clove Cigarettes , para. 177 (referring to Appellate Body Report, 
Korea – Various Measures on Beef , para. 137); and Thailand – Cigarettes (Philippines) , para. 128 (referring to 
Appellate Body Report, EC – Asbestos , para. 100).  
1024 Appellate Body Reports, US – Clove Cigarettes , paras. 177 and 179; Thailand – Cigarettes 
(Philippines) , para. 129; and Korea – Various Measures on Beef , para. 137. 
1025 Appellate Body Reports, US – Clove Cigarettes , para. 179; Thailand – Cigarettes (Philippines) , 
para. 128; and Korea – Various Measures on Beef , para. 137. 
1026 Appellate Body Reports, US – COOL , para. 270 (quoting Appellate Body Report, US – Tuna II 
(Mexico) , fn 457 to para. 214, in turn referring to Appellate Body Report, Thailand – Cigarettes (Philippines) , 
para. 134). 
1027 European Union's other appellant's submission, paras. 292 and 293 (referring to Appellate Body 
Report,  Dominican Republic – Impo rt and Sale of Cigarettes , para. 96). 
1028 European Union's response to ques tioning at the oral hearing (refe rring to Appellate  Body Report,  
US – Clove Cigarettes , fn 372 to para. 179). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.104.  As Canada and Norway observe, in US – Clove Cigarettes , the Appellate Body explained its 
earlier finding in Dominican Republic – Import and Sale of Cigarettes .1029 The Appellate Body 
explicitly rejected the notion that its finding in Dominican Republic – Import and Sale of Cigarettes  
stands for the proposition that, under Article III:4, panels should conduct an inquiry into whether 
the detrimental impact of a measure on imports is unrelated to the foreign origin of the imported 
products. The Appellate Body buttressed this explanation of its finding in Dominican Republic – 
Import and Sale of Cigarettes by pointing out that, subsequent to its finding in that case, it had, in 
the context of a claim under Article III:4 in Thailand – Cigarettes (Philippines) , "eschewed an 
additional inquiry" as to whether the detrimental impact of a measure on imports is related to the foreign origin of the products.
1030 The Appellate Body also pointed out that, in  Thailand – 
Cigarettes (Philippines) , it had clarified that, for a finding of less favourable treatment under 
Article III:4, "there must be in every case a genuine relationship between the measure at issue 
and its adverse impact on competitive opportunities for imported versus like domestic products to support a finding that imported products are treated less favourably".
1031 
5.105.  In US – Clove Cigarettes , the Appellate Body thus clarified that a violation of Article III:4 
had not been established in Dominican Republic – Import and Sale of Cigarettes , since, in that 
dispute, the detrimental impact on competitive opportunities for like imported products was not 
attributable to the specific measure at issue. The Appellate Body has stated that, in determining 
whether the detrimental impact on competitive opportunities for like imported products is attributable to, or has a genuine relationship with , the measure at issue, the relevant question is 
"whether it is the governmental measure at issue that 'affects the conditions under which like 
goods, domestic and imported, compete in the market within a Member's territory'".
1032 Thus, 
contrary to what the European Union suggests, an analysis of whether the detrimental impact on competitive opportunities for like imported products is attributable to the specific measure at issue 
does not involve an assessment of whether such  detrimental impact stems exclusively from a 
legitimate regulatory distinction.  
5.106.  The European Union also relies on the Appellate Body's statement in EC – Asbestos  that "a 
Member may draw distinctions between products wh ich have been found to be 'like', without, for 
this reason alone, according to the group of 'lik e' imported products 'less favourable treatment' 
than that accorded to the group of 'like' domestic products".
1033 In the European Union's view, this 
statement supports its contention that, for the purposes of establishing a violation of Article III:4, 
a finding that a measure has a detrimental impact on competitive opportunities for like imported 
products is not dispositive.  
5.107.  Canada and Norway disagree wi th the European Union's reading of EC – Asbestos . In 
Canada's view, EC – Asbestos is consistent with the Appellate Body's earlier finding, in Korea – 
Various Measures on Beef , that "a distinction between products in itself will not automatically 
result in a finding of less favourable treatment" under Article III:4. Canada submits that 
"a distinction that modifies the conditions of competition in the relevant market to the detriment of 
imported products" will, however, result in less favourable treatment under Article III:4.1034 Like 
Canada, Norway submits that the Appellate Body's statement in EC – Asbestos  that Article III:4 is 
not violated for the sole reason that objective distinctions are drawn between imported and 
domestic like products, does not mean that if these distinctions give rise to a detrimental impact 
on the like imported products, a Member may justify such detrimental impact under Article III:4.
1035  
5.108.   In our view, the Appellate Body, in EC – Asbestos , merely highlighted that the term 
"treatment no less favourable" in Article III:4 has a more unfavourable connotation than the drawing of distinctions between imported and domestic like products. WTO Members are free to 
impose different regulatory regimes on imported and domestic products, provided that the 
                                               
1029 Canada's appellee's submission, para. 201; Norway's appellee's submission, para. 265. 
1030 Appellate Body Report, US – Clove Cigarettes , fn 372 to para. 179. 
1031 Appellate Body Report, US – Clove Cigarettes , fn 372 to para. 179 (quoting Appellate Body Report, 
Thailand – Cigarettes (Philippines) , para. 134). 
1032 Appellate Body Reports, US – COOL , para. 270 (referring to Appellate Body Report, Korea – Various 
Measures on Beef , para. 149). 
1033 Appellate Body Report, EC – Asbestos , para. 100. 
1034 Canada's appellee's submission, paras. 206-208 (referring to Appellate Body Reports, EC – 
Asbestos , para. 100; and Korea – Various Measures on Beef , para. 137). 
1035 Norway's appellee's submission, paras. 272 and 273.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  treatment accorded to imported products is no less  favourable than that accorded to like domestic 
products. Thus, Article III:4 does not require the identical treatment of imported and like domestic 
products, but rather the equality of competitive conditions  between these like products. In this 
regard, neither formally identical, nor formally di fferent, treatment of imported and like domestic 
products necessarily ensures equality of competitive opportunities for imported and domestic like 
products. For this reason, the Appellate Body has considered that: 
A formal difference in treatment between impo rted and like domestic products is thus 
neither necessary, nor sufficient, to show a violation of Article III:4. Whether or not 
imported products are treated "less favourably" than like domestic products should be assessed instead by examining whether a measure modifies the conditions of 
competition  in the relevant market to the detriment of imported products.
1036  
5.109.  The proposition that distinctions may be drawn between imported and like domestic 
products without necessarily according less favourable treatment to the imported products implies only that the "treatment no less favourable" standard, under Article III:4, means something more 
than drawing regulatory distinctions between im ported and like domestic products. There is, 
however, a point at which the differential treatment of imported and like domestic products amounts to "treatment no less favourable" within the meaning of Article III:4. The Appellate Body 
has demarcated where that point lies, in the following terms:  
[T]he mere fact that a Member draws regu latory distinctions between imported and 
like domestic products is, in itself, not determinative of whether imported products are treated less favourably within the meaning of Article III:4. Rather, what is relevant is 
whether such regulatory differences distort the conditions of competition to the 
detriment of imported products. If so, then the differential treatment will amount to 
treatment that is "less favourable" within the meaning of Article III:4.
1037 
5.110.  In the light of the above, we do not agree with the European Union's reading of the 
Appellate Body's statement in EC – Asbestos . Specifically, we do not consider that the Appellate 
Body's statement that a Member may draw dist inctions between imported and like domestic 
products without necessarily violating Article III:4 stands for the proposition that the detrimental 
impact of a measure on competitive opportunities for like imported products is not dispositive for the purposes of establishing a violation of Article III:4.  
5.111.  The European Union further contends that the Panel's interpretation of the legal standard 
under Article III:4 fails to take account of the general principle, expressed in Article III:1 of the 
GATT 1994, that internal regulations should not be applied "so as to afford protection" to domestic production. The European Union observes that th e Appellate Body has found that the protective 
application of a measure, within the meaning of Article III:1, can most often be discerned from the 
design, the architecture, and the revealing structure of a measure.
1038 I n th e  Europ e an Union' s  
view, this "test" "corresponds to the second step of the de facto  discrimination analysis" under 
Article 2.1 of the TBT Agreement.1039 Thus, by suggesting that "this analysis is unnecessary for 
finding de facto  discrimination" under Article III:4, the Panel, in the European Union's view, failed 
to take account of the context provided by the general principle articulated in Article III:1.1040  
5.112.  Canada responds that, in the context of claims under Article III:2, second sentence, of the 
GATT 1994, the Appellate Body has "simply recognized" that panels should consider the relevant 
circumstances, including the design, structure, operation and application of the measure at issue to determine whether the measure at issue results in de facto  discrimination.
1041 Canada 
emphasizes that the Appellate Body did not "suggest this to mean that discrimination under 
Article III could be justified by regulatory distinctions".1042 In addition, Canada points out that the 
Appellate Body has confirmed that the term "treatment no less favourable" in Article III:4 
                                               
1036 Appellate Body Report, Korea – Various Measures on Beef , para. 137. (emphasis original) 
1037 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 128. (emphasis added; fn omitted) 
1038 European Union's other appellant's submission, para. 299 (referring to Appellate Body Report, 
Japan – Alcoholic Beverages II , p. 29, DSR 1996:I, p. 120). 
1039 European Union's other appellant's submission, para. 300. 
1040 European Union's other appe llant's submission, para. 300. 
1041 Canada's appellee's submission, para. 220 (referring to Appellate Body Report, Japan – Alcoholic 
Beverages II , p. 29, DSR 1996:I, p. 120). 
1042 Canada's appellee's submission, para. 220.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  expresses the general principle in Article III:1, so that "[i]f there is 'less favourable treatment' of 
the group of 'like' imported products, there is, conversely, 'protection' of the group of 'like' 
domestic products."1043  
5.113.  Norway, for its part, notes that Article III: 1 is not expressly invoked in Article III:4, and 
that the legal requirements set out in Article III: 4 are an application of the general principle set 
forth in Article III:1. Thus, in assessing whether there is less favourable treatment of imports under Article III:4, a panel is required to examine whether a measure has a detrimental or 
"adverse impact on competitive opportunities for imported versus like domestic products".
1044 
Norway asserts that, if it does, the measure will not be in accordance with the "general principle" expressed in Article III:1.
1045  
5.114.  It is well established that the general pr inciple expressed in Article III:1 – that internal 
measures should not be applied to afford protection to domestic production – informs the rest of 
Article III, including Article III:4.1046 This general principle, however, informs the other paragraphs 
of Article III in different ways, depending on the textual connection between Article III:1 and the 
other paragraphs of Article III.1047 Thus, the interpretative direction that Article III:1 provides to 
the other paragraphs of Article III must respect, and in no way diminish, the meaning of the words actually used in those other paragraphs. 
5.115.  As both Canada and Norway have poin ted out, Article III:4, like Article III:2, first 
sentence, does not explicitly refer to Article III:1. As clarified by the Appellate Body, this does not 
mean that Article III:1 does not apply to Article III:2, first sentence. Rather, "the first sentence of Article III:2 is, in effect, an application of" the general principle in Article III:1.
1048 We consider 
that, just as the omission of a textual reference to Article III:1, in Article III:2, first sentence, 
must be given meaning, so too must the absence of a reference to Article III:1 in Article III:4. In our view, Article III:4 is, itself, an expression of the principle set forth in Article III:1. 
Consequently, "[i]f there is 'less favourable treatment' of the group of 'like' imported products, 
there is, conversely, 'protection' of the group of 'like' domestic products."
1049 
5.116.  As noted above, the term "treatment no less favourable" in Article III:4 requires effective 
equality of opportunities for imported products to compete with like domestic products.1050 Thus, 
Article III:4 permits regulatory distinctions to be drawn between products, provided that such distinctions do not modify the conditions of competition between imported and like domestic products. Hence, a determination of whether impo rted products are treated less favourably than 
like domestic products involves an assessment of the implications of the contested measure for the 
equality of competitive conditions between imported and like domestic products. If the outcome of this assessment is that the measure has a detrimental impact on the conditions of competition for 
like imported products, then such detrimental impact will amount to treatment that is "less 
favourable" within the meaning of Article III:4.  
5.117.  In the light of the above, we consider that the "treatment no less favourable" standard 
under Article III:4 of the GATT 1994 prohibits WT O Members from modifying the conditions of 
competition in the marketplace to the detriment of the group of imported products vis-à-vis  the 
group of like domestic products. We do not consider, as argued by the European Union, that for the purposes of an analysis under Article III:4,  a panel is required to examine whether the 
detrimental impact of a measure on competitive opportunities for like imported products stems 
exclusively from a legitimate  regulatory distinction.  
                                               
1043 Canada's appellee's submission, para. 221 (referring to Appellate Body Report, EC – Asbestos , 
para. 100). 
1044 Norway's appellee's submission, paras. 284 and 286. 
1045 Norway's appellee's submission, para. 286 (quoting Appellate Body Report, Canada – Periodicals , 
p. 18, DSR 1997:I, p. 464, in turn referring to GATT Panel Reports, US – Tobacco , para. 99; US – Malt 
Beverages , para. 5.6; Canada – Provincial Liquor Boards (EEC) , para. 5.6; US – Section 337 Tariff Act , 
para. 5.13; US – Superfund , para. 5.1.9; and Brazil – Internal Taxes , para. 15). 
1046 Appellate Body Report, EC – Asbestos , para. 94. 
1047 Appellate Body Report, Japan – Alcoholic Beverages II , p. 18, DSR 1996:I, p. 111. 
1048 Appellate Body Report, Japan – Alcoholic Beverages II , p. 18, DSR 1996:I, p. 111. 
1049 Appellate Body Report, EC – Asbestos , para. 100. 
1050 See supra , para. 5.101. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.118.  We note the European Union's argument that, under the Panel's interpretation of 
Articles I:1 and III:4, a technical regulation could be considered non-discriminatory under the TBT Agreement, but still violate the GATT 1994.
1051 Expounding on this argument, the European 
Union explains that the list of possible legitimate objectives that may factor into an analysis under 
Article 2.1 of the TBT Agreement is open, in contrast to the closed list of objectives enumerated 
under Article XX of the GATT 1994. Thus, the Panel's "divergent approach to de facto  
discrimination" could lead to a situation where, under Article 2.1, a technical regulation that has a 
detrimental impact on imports would be permitted if such detrimental impact stems from a 
legitimate regulatory distinction, while, under Articles I:1 and III:4 of the GATT 1994, the same 
technical regulation would be prohibited if the objective that it pursues does not fall within the subparagraphs of Article XX of the GATT 1994.
1052 For the European Union, the Panel's 
interpretation of Articles I:1 and III:4 would thus "render Article 2.1 of the TBT Agreement 
irrelevant" as complainants would have a strong incentive not to invoke Article 2.1 of the TBT Agreement, and, instead, would bring claims  under the GATT 1994, even if the measure at 
issue qualified as a technical regulation.
1053 
5.119.  Canada disagrees with the European Union's argument that accepting the Panel's approach 
would result in divergent outcomes under the TBT Agreement and the GATT 1994.1054 Noting the 
Appellate Body's statement that the TBT Agreement and the GATT 1994 should be "interpreted in 
a coherent and consistent manner", Canada submits that "the more reasonable view with respect 
to the scope of objectives that may be cons idered legitimate for the purposes of the 
TBT Agreement is that it mirrors the scope of Article XX of the GATT 1994."1055 Canada asserts, in 
addition, that the European Union's argument that the Panel's interpretation of Articles I:1 
and III:4 of the GATT 1994 would render Article 2. 1 of the TBT Agreement "irrelevant" is entirely 
speculative. 
5.120.  Norway, like Canada, disagrees with the European Union's argument that the Panel's 
interpretation of Articles I:1 and III:4 is incoherent with Article 2.1 of the TBT Agreement.1056 
First, Norway considers that the Appellate Bo dy's statement that the TBT Agreement and the 
GATT 1994 "should be interpreted in a coherent and consistent manner" does not mean that the 
provisions of the two agreements should be given the same meaning.1057 Second, Norway 
considers that the European Union overstates the supposed gap between the list of policy interests 
that may justify a detrimental impact on imports under Article 2.1 of the TBT Agreement, on the 
one hand, and Article XX of the GATT 1994, on the other hand.1058 According to Norway, although 
the range of legitimate interests that may be purs ued under Article 2.1 is wider than the range of 
interests under Article XX, this is not wider than the range of interests reflected in all provisions of 
the covered agreements.1059 Norway submits that, even assuming, for the sake of argument, that 
there is some policy interest that may be pursued under the TBT Agreement but not under the GATT 1994, it would be inappropriate to "circumvent the drafters' decision by allowing a policy 
interest not reflected in the GATT 1994 to justify a trade-restrictive measure under that 
Agreement".
1060 
5.121.  At the outset, we recall that, in US – Clove Cigarettes , the Appellate Body made certain 
observations of "general import" concerning, inter alia , the preamble of the TBT Agreement; the 
relevance of Article III:4 of the GATT 1994 in interp reting Article 2.1 of the TBT Agreement; and 
the absence among the provisions of the TBT Agreement  of a general exceptions provision similar 
to Article XX of the GATT 1994. The Appellate Body  considered that the language of the second 
recital of the TBT Agreement indicates that the TBT Agreement expands on pre-existing 
                                               
1051 European Union's other appellant's submission, para. 307. 
1052 European Union's other appellant's submission, para. 307. 
1053 European Union's other appellant's submission, para. 308. 
1054 Canada's appellee's submission, para. 238 (ref erring to European Union's other appellant's 
submission, para. 307). 
1055 Canada's appellee's submission, para. 240 (referring to Appellate Body Report, US – Clove 
Cigarettes , para. 91). 
1056 Norway's appellee's submission, para. 287. 
1057 Norway's appellee's submission, para. 288 (quoting Appellate Body Report, US – Clove Cigarettes , 
para. 91). 
1058 Norway's appellee's submission, paras. 290 and 291. 
1059 Norway's appellee's submission, para. 296. 
1060 Norway's appellee's submission, para. 300. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  GATT disciplines and emphasized that the two agreements should be interpreted in a coherent and 
consistent manner.1061  
5.122.  In addition, the Appellate Body considered that the very similar formulation of Article 2.1 
of the TBT Agreement and Article III:4 of the GATT 1994, and the overlap in their scope of 
application in respect of technical regulations, confirm that Article III:4 is relevant context for the 
interpretation of the national treatment obligation under Article 2.1. Thus, in interpreting Article 2.1 of the TBT Agreement, a panel should focus on the text of Article 2.1, read in the 
context of the TBT Agreement, including its preamble, and also consider other contextual 
elements, such as Article III:4 of the GATT 1994.
1062 Turning to the preamble of the 
TBT Agreement, the Appellate Body considered that the balance between the desire to avoid 
creating unnecessary obstacles to international trade under the fifth recital, and the recognition of 
a Member's right to regulate under the sixth recital, is not, in principle, different from the balance 
set out in the GATT 1994, where obligations such as national treatment in Article III are qualified by the general exceptions provision of Article XX.
1063 
5.123.  We observe that the GATT 1994, the TB T Agreement and the other covered agreements 
are integral parts of the Marrakesh Agreemen t Establishing the World Trade Organization 
(WTO Agreement). Thus, the provisions of the WTO covered agreements should be interpreted in a 
coherent and consistent manner, giving meaning to all applicable provisions harmoniously.1064 This 
principle applies to the relationship between th e TBT Agreement and the GATT 1994, as confirmed 
and reinforced by the second recital of the prea mble of the TBT Agreement. We do not consider 
that the principle that the provisions of the WTO covered agreements should be read in a coherent 
and consistent manner means that the legal standards for similar  obligations – such as Articles I:1 
and III:4 of the GATT 1994, on the one hand, and Ar ticle 2.1 of the TBT Agreement, on the other 
hand – must be given identical meanings.  
5.124.  The Appellate Body has observed that the TBT Agreement does not contain a general 
exceptions clause similar to Article XX of th e GATT 1994. This does not mean, however, that 
Members do not have a right to regulate under the TBT Agreement. Instead, the sixth recital of the 
preamble of the TBT Agreement suggests that a Member's right to regulate should not be 
constrained if the measures taken are necessary to  fulfil certain legitimate policy objectives, and 
provided that they are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade, and are otherwise in 
accordance with the provisions of the Agreement.
1065 As the Appellate Body has explained, it is the 
specific context of Article 2.1 of the TBT Agreem ent – which includes Annex 1.1; Article 2.2; and 
the second, fifth, and sixth recitals of the preamble – that supports a reading that Article 2.1 does 
not operate to prohibit a priori  any restriction on international trade.1066 
5.125.  By contrast, as noted by the Panel, the obligations assumed by Members to respect the 
non-discrimination disciplines under Articles I:1 and III:4 of the GATT 1994 are balanced by a 
Member's right to regulate in a manner consistent with the requirements of the separate general 
exceptions clause of Article XX and its chapeau.1067 In our view, the fact that, under the 
GATT 1994, a Member's right to regulate is accommodated under Article XX, weighs heavily against an interpretation of Articles I:1 and III:4 that requires an examination of whether the 
detrimental impact of a measure on competitive opportunities for like imported products stems 
exclusively from a legitimate regulatory distinct ion. In the light of the immediate contextual 
differences between the TBT Agreement and the GA TT 1994, we do not consider that the legal 
                                               
1061 Appellate Body Report, US – Clove Cigarettes , para. 91. 
1062 Appellate Body Report, US – Clove Cigarettes , para. 100. 
1063 Appellate Body Report, US – Clove Cigarettes , paras. 93-96. 
1064 Appellate Body Reports, US – Anti-Dumping and Countervailing Duties (China) , para. 570; and US – 
Upland Cotton , paras. 549 and 550 (quoting Appellate Body Report, Argentina – Footwear (EC) , para. 81 and 
fn 72 thereto, in tu rn referring to Appellate Body Reports, Korea  – Dairy , para. 81; US – Gasoline , p. 23, 
DSR 1996:I, p. 21; Japan – Alcoholic Beverages II , p. 12, DSR 1996:I, p. 106; and India – Patents (US) , 
para. 45). 
1065 Appellate Body Report, US – Clove Cigarettes , para. 95. 
1066 Appellate Body Reports, US – COOL , para. 268 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 212). 
1067 Beyond the general exceptions clause of Arti cle XX, we note that the GATT 1994 also contains 
specific exceptions, e.g. Article XXI and Article XXIV. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  standard for the non-discrimination obligation under Article 2.1 of the TBT Agreement applies 
equally to claims under Articles I:1 and III:4 of the GATT 1994. 
5.126.  We are also not persuaded by the Europe an Union's argument that accepting the Panel's 
interpretation of Articles I:1 and III:4 would result in divergent outcomes under the 
TBT Agreement and the GATT 1994 in respect of th e same measure, and would therefore render 
Article 2.1 of the TBT Agreement irrelevant. At the outset, we recall that we have reversed the Panel's finding that the EU Seal Regime constitu tes a technical regulation under Annex 1.1 to the 
TBT Agreement. Therefore, the asymmetrical ou tcomes that the European Union alleges could 
result from the Panel's interpretation of Articles I:1 and III:4 do not arise in this case.  
5.127.  In any event, it seems to us that the European Union's argument is predicated on a 
perceived imbalance between, on the one hand, the scope of a Member's right to regulate under 
Article XX of the GATT 1994, and, on the other hand , the scope of that right under Article 2.1 of 
the TBT Agreement. Yet, under the TBT Agreemen t, the balance between the desire to avoid 
creating unnecessary obstacles to international trade under the fifth recital, and the recognition of 
Members' right to regulate under the sixth recital, is not, in principle, different from the balance 
set out in the GATT 1994, where obligations such as national treatment in Article III are qualified by the general exceptions provision of Article XX.
1068  
5.128.  We further note that, beyond stating that the list of legitimate objectives that may factor 
into an analysis under Article 2.1 of the TBT Agreement is open, in contrast to the closed list of objectives enumerated under Article XX of the GATT 1994, the European Union has not pointed to 
any concrete examples of a legitimate objective that  could factor into an analysis under Article 2.1 
of the TBT Agreement, but would not fall wi thin the scope of Article XX of the GATT 1994.
1069  
5.129.  Finally, we note that our interpretation of the legal standards under Articles I:1 and III:4 
of the GATT 1994, and Article 2.1 of the TBT Agreemen t, is based on the text of those provisions, 
as understood in their context, and in the light of the object and purpose of the agreements in 
which they appear, as is our mandate. If there is a perceived imbalance in the existing rights and obligations under the TBT Agreement and the GATT 1994, the authority rests with the Members of 
the WTO to address that imbalance.
1070  
5.130.  In the light of the foregoing considerations, we uphold the Panel's finding, at 
paragraph 7.586 of its Reports, that the legal standard for the non-discrimination obligations 
under Article 2.1 of the TBT Agreement does not apply equally to claims under Articles I:1 
and III:4 of the GATT 1994. Consequently, we upho ld the Panel's conclusion, in paragraphs 7.600 
and 8.3(a) of its Reports, that the measure at issue is inconsistent with Article I:1 because it does 
not, "immediately and unconditionally", extend the same market access advantage to Canadian 
and Norwegian seal products that it accords to seal products originating from Greenland.1071 
5.3  Article XX of the GATT 1994 5.131.  We address in the following three sections  the claims and arguments of the participants 
relating to the Panel's analysis under Article XX of the GATT 1994. First, we address the Panel's 
identification of the objective of the EU Seal Re gime. Second, we address the claims of Canada and 
Norway that relate to the Panel's analysis of wh ether the EU Seal Regime is necessary to protect 
public morals within the meaning of Article XX(a) of the GATT 1994. Third, we address the claims 
                                               
1068 Appellate Body Report, US – Clove Cigarettes , para. 96. 
1069 European Union's other appellant's submission, para. 307 (referring to Appellate Body Reports, US – 
Clove Cigarettes , para. 255; US – Tuna II (Mexico) , para. 286; and US – COOL , paras. 341-350). 
1070 See supra , para. 5.127.  
1071 At the oral hearing, the European Union confirmed that its appeal of the Panel's conclusion under 
Article I:1 is based solely on its claim that the Pa nel erred in finding that the legal standard for the 
non-discrimination obligation under Article 2.1 of the TBT Agreement does not apply equally to claims under 
Article I:1. We note that the Panel concluded that the measure at issue is also in consistent with Article III:4 
because, while virtually all domestic seal products are likely to qualify for market access under the MRM exception, the vast majority of seal  products from Canada and Norway ar e excluded from the EU market under 
the terms of the MRM exception. The Panel thus found that the measure at issue has a detrimental impact on 
competitive conditions for like im ported products from Canada and No rway. The European Union has not 
appealed this finding. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 130 - 
 
  of Canada, Norway, and the European Union concerning the Panel's analysis under the chapeau of 
Article XX of the GATT 1994. 
5.132.  We recall that we have declared moot and of no legal effect the Panel's conclusions under 
Articles 2.1 and 2.2 of the TBT Agreement. The Panel, however, relied on certain of its findings and 
reasoning in the context of its analysis under the TBT Agreement when addressing claims and 
arguments under Article XX of the GATT 1994. Where relevant, we refer to those findings and reasoning below. 
5.3.1  The objective of the EU Seal Regime 
5.133.  The Panel sought first to identify the "objec tive" of the EU Seal Regime in the context of its 
analysis under Article 2.2 of the TBT Agreement.
1072 The Panel relied on that assessment in its 
analysis under Article 2.1 of the TBT Agreement, as well as under Article XX of the GATT 1994. In 
the context of Article XX, the Panel's characte rization of the objective of the measure has 
implications both in respect of the analysis under subparagraph (a), as well as under the chapeau. A c c o r d i n g l y ,  b e f o r e  w e  t u r n  t o  t h e  c l a i m s  o n  a p p e a l  d i r e c t e d  a t  t h e  P a n e l ' s  a n a l y s i s  u n d e r  
Article XX, we first address the Panel's characteri zation of the objective of the EU Seal Regime. 
5.3.1.1  The Panel's findings 5.134.  According to the Panel, the disagreement between the parties regarding the objective of 
the EU Seal Regime was limited to two issues.
1073 First, although the parties did not dispute that 
the EU Seal Regime is aimed at addressing public  concerns regarding seal welfare, they disagreed 
on whether the public concerns at issue are moral concerns for the EU public. Second, the parties 
contested whether other interests addressed through the exceptions in the measure (i.e. the IC, 
MRM, and Travellers exceptions) constitute objectiv es of the EU Seal Regime that are separate and 
independent from the objective of addressing seal welfare concerns. Referring to prior Appellate Body jurisprudence, the Panel stated that it would assess the objectives of the EU Seal Regime on 
the basis of available evidence such as the texts of the statutes, the legislative history, and other 
evidence regarding the structure and operation of the measure at issue.
1074 The Panel also recalled 
the meaning and scope of "public morals" as discussed in prior disputes.1075 
5.135.  The Panel first reviewed the text of the measure and stated that it was able to discern 
that, in designing the EU Seal Regime, the Europe an Union "sought to address the public concerns 
on seal welfare" and, in doing so, "also took into  account certain other interests (i.e. IC, MRM, and 
Travellers interests)".1076 The Panel also reviewed the legislative history of the measure, 
concluding that, similar to the text of the EU Seal Regime, the legislative history "demonstrates 
the existence of the EU public's concerns about seal welfare".1077 The Panel went on to observe 
that the EU public's concerns on seal welfare found in the evidence "are related to seal hunting in 
general, and not to any particular type of hunting" , and that public survey results submitted by the 
European Union were also informative, although "to a limited extent", in demonstrating the EU public's concerns.
1078  
                                               
1072 Panel Reports, para. 7.372. Article 2.2 of the TBT Agreement provides: 
Members shall ensure that technical regulations ar e not prepared, adopted or  applied with a view 
to or with the effect of creati ng unnecessary obstacles to international trade. For this purpose, 
technical regulations shall not be  more trade-restrictive than ne cessary to fulfil a legitimate 
objective, taking account of the risks non-fulfilme nt would create. Such legitimate objectives are, 
inter alia : national security requirements; the preventi on of deceptive practices; protection of 
human health or safety, animal or plant life or  health, or the environment. In assessing such 
risks, relevant elements of consideration are, inter alia : available scientific and technical 
information, related processing technolo gy or intended end-uses of products. 
1073 Panel Reports, para. 7.377. 
1074 Panel Reports, para. 7.378 and fn 627 thereto (referring, inter alia , to Appellate Body Report, US – 
Tuna II (Mexico) , para. 314).  
1075 Panel Reports, paras. 7.379-7.383. 
1076 Panel Reports, para. 7.389. 
1077 Panel Reports, para. 7.398. 
1078 Panel Reports, para. 7.398 and fns 652 and 653 thereto. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.136.  The Panel further concluded that, "in drawing up the measure, the European Union 
accommodated other interests or considerations" related to Inuit communities, marine management, and the personal use of seal products by travellers.
1079 Although the Panel 
recognized that a measure may have several object ives, it was not convinced – after reviewing the 
text, legislative history, and structure and design  of the measure – that the "aim", "target", or 
"goal" was to protect the interests reflected in the exceptions to the EU Seal Regime.1080 Rather, 
the Panel found that "the principal objective of adopting a regulation on trade in seal products was 
to address public concerns on seal welfare."1081 In the Panel's view, "the interests that were 
accommodated in the measure through the [IC, MRM, and Travellers] exceptions must be distinguished from the main objective of the measure as a whole."
1082 The Panel considered that 
the interests reflected in these exceptions were no t "grounded in the concerns of EU citizens", but 
rather "appear to have been included in the course of the legislative process".1083 For all of these 
reasons, the Panel stated that it did not consider that such interests "form independent policy objectives of the EU Seal Regime as a whole".
1084  
5.137.  Having concluded that the text and legislative history of the measure established the 
existence of the EU public's concerns on seal we lfare, the Panel then turned to examine whether 
these concerns fall within the scope of "public morals" in the European Union.1085 The Panel 
explained that, because it had found that IC and MRM interests do not constitute objectives of the 
EU Seal Regime, it was "unnecessary to determine whether such interests are 'articulations of the 
same standard of morality' governing the public concerns on seal welfare as claimed by the European Union".
1086 The Panel thus defined its task as "confined to assessing whether the public 
concerns on seal welfare are anchored in the morality of European societies".1087  
5.138.  The Panel considered the legislative history of the EU Seal Regime, as well as a range of 
other evidence, including various actions taken by the European Union as well as EU member 
States concerning animal welfare protection in general; various pieces of legislation and 
conventions on animal welfare within the European Union and other countries, including Norway and Canada; and various international instrument s. The Panel found that the evidence of the 
European Union illustrates standards of right and wrong conduct maintained by or on behalf of the 
European Union concerning seal welfare.
1088 Although the Panel did not consider that all evidence 
makes an explicit link between seal or animal welfare and the morals of the EU public, it nevertheless was persuaded that the evidence "as a whole sufficiently demonstrates that animal 
welfare is an issue of ethical or moral nature in the European Union".
1089 
5.139.  The Panel concluded on the basis of its ex amination of the text and legislative history of 
the EU Seal Regime, as well as other evidence pertaining to its design, structure, and operation, 
that the objective of the EU Seal Regime is "to address the moral concerns of the EU public with 
regard to the welfare of seals".1090 The Panel elaborated that these concerns have two specific 
aspects: (i) "the incidence of inhumane killing of seals"; and (ii) "EU citizens' 'individual and 
collective participation as consumers in, and exposure to ("abetting"), the economic activity which 
sustains the market for' seal products derived from inhumane hunts."1091 The Panel further 
concluded that, in the light of the evidence before it, "the EU public concerns on seal welfare appear to be related to seal hunts in general, not any particular type of seal hunts".
1092 For this 
reason, the Panel explained, the second aspect of the objective of the EU Seal Regime pertains to 
                                               
1079 Panel Reports, para. 7.399. 
1080 Panel Reports, paras. 7.400 and 7.401. 
1081 Panel Reports, para. 7.401.  
1082 Panel Reports, para. 7.402. 
1083 Panel Reports, para. 7.402. 
1084 Panel Reports, para. 7.402.  
1085 Panel Reports, para. 7.404. 
1086 Panel Reports, para. 7.404 (referring to European  Union's opening statement at the second Panel 
meeting, para. 44; and European Union' s response to Panel question No. 104). 
1087 Panel Reports, para. 7.404. 
1088 Panel Reports, para. 7.409. 
1089 Panel Reports, para. 7.409.  
1090 Panel Reports, para. 7.410. 
1091 Panel Reports, para. 7.410.  
1092 Panel Reports, para. 7.410 (referring to European Un ion's response to Panel question No. 31, in turn 
referring to Report of the Royal Commission, Seals and Sealing in Canada  (1986), Vol. I, Chapter 11, "Public 
Opinion on Sealing" (Panel Exhibit EU-4 8) (Royal Commission Report), p. 160). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  seal products derived from inhumane hunts rather than "commercially-hunted seal products" as 
submitted by the European Union.1093 
5.140.  Turning to the legitimacy of the objective pursued, the Panel noted that the protection of 
"public morals" is expressly included as a general exception to the GATT 1994 and the General 
Agreement on Trade in Services (GATS), which, in the Panel's view, demonstrated that 
"WTO Members considered this objective to be particularly significant."1094 The Panel considered 
that, in the light of this, together with the second  recital of the TBT Agreement, which states that 
one of the objectives of the TBT Agreement is to further the objectives of the GATT 1994, the 
protection of "public morals" falls within the scope of legitimate objectives under Article 2.2 of the 
TBT Agreement.1095 Given its finding that the concerns of the EU public on animal welfare involved 
standards of right and wrong within the Europe an Union as a community, the Panel found that 
addressing public moral concerns on seal welfare is a "legitimate" objective within the meaning of 
Article 2.2 of the TBT Agreement.1096  
5.3.1.2  Identification of the object ive pursued by the EU Seal Regime 
5.141.  Norway challenges the Panel's finding that the "sole objective" of the EU Seal Regime is to 
address EU public moral concerns regarding seal welfare.1097 I n  N o r w a y ' s  v i e w ,  t h e  P a n e l  
committed a number of legal and factual errors in reaching the conclusion that the EU Seal Regime 
does not pursue objectives relating to the protection of IC interests and the promotion of 
MRM interests. Norway explains that it does not "c ontest the existence of public concerns on seal 
welfare", but rather maintains that the measure "also pursued other objectives".1098 In particular, 
Norway is critical of the Panel's analysis set out in paragraph 7.402 of its Reports, in which the 
Panel rejected the inclusion of IC and other interests as part of the objective of the measure 
because they were not "grounded in the concerns of  EU citizens", but rather were "included in the 
course of the legislative process", and therefore di d not "form independent policy objectives of the 
EU Seal Regime as a whole".1099  
5.142.  The European Union maintains that the Pane l correctly found that the "principal" or "main" 
objective of the EU Seal Regime is to address pub lic moral concerns with regard to the welfare of 
seals.1100 The European Union explains that, as found by the Panel, the text of the 
Basic Regulation, its drafting history, and its st ructure and design establish that the EU Seal 
Regime was adopted in order to respond to EU public moral concerns with regard to the welfare of seals. The European Union adds that, if the EU legislators' main objective had been "to protect the 
interests of the Inuit and other indigenous communities or the objective that Norway ascribes to 
the MRM exception, they would have refrained fr om adopting the EU Seal Regime in the first 
place."
1101 The European Union further emphasizes that "[t]he IC exception does not seek to 
promote exports of seal products by the Inuit and other indigenous communities, but rather to 
mitigate the necessary adverse effects of the EU Seal Regime on those communities to the extent 
compatible with the main objective of addressing the public moral concerns with regard to the 
welfare of seals."1102  
5.143.  The European Union separately appeals the Panel's finding that "the IC distinction does not 
bear a rational relationship to the objective of a ddressing the moral concerns of the public on seal 
welfare".1103 In that context, the European Union is critical of the Panel's conclusion in 
paragraph 7.404 of its Reports that, because the Pa nel did not consider that IC and MRM interests 
constitute objectives of the EU Seal Regime, it was "unnecessary to determine whether such interests are 'articulations of the same standard of morality' governing the public concerns on seal 
                                               
1093 Panel Reports, para. 7.410 (quoting European Union's response to Panel question No. 9). 
1094 Panel Reports, para. 7.418. 
1095 Panel Reports, para. 7.418. 
1096 Panel Reports, para. 7.419. 
1097 Norway's appellant's submission, para. 44. 
1098 Norway's appellant's submission, para. 67. 
1099 Panel Reports, para. 7.402. 
1100 European Union's appellee's submission, para. 138 (quoting Panel Reports, paras. 7.401 and 7.402). 
1101 European Union's appellee's submission, para. 141. 
1102 European Union's appellee's submission, para. 142. 
1103 Panel Reports, para. 7.275. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  welfare as claimed by the European Union".1104 In the European Union's view, the EU Seal Regime 
reflects a moral standard of "animal welfarism"1105, pursuant to which "humans ought not to inflict 
suffering upon animals without a sufficient justification".1106 With regard to the IC exception, the 
European Union states that EU legislators considered that the subsistence of Inuit and other 
indigenous communities and the preservation of their cultural identity "provide benefits to humans 
which, from a moral point of view, outweigh the risk of suffering inflicted upon seals as a result of the hunts conducted by those communities".
1107 
5.144.  As noted above, the Panel sought first to  identify the objective of the EU Seal Regime 
when assessing the claims under Article 2.2 of th e TBT Agreement. The Panel subsequently relied 
on that assessment in its analysis under Article XX  of the GATT 1994. In seeking to identify the 
objective of a measure, a panel may be faced with conflicting arguments by the parties as to the 
nature of the objective or the objectives purs ued by a responding party through its measure. 
A panel should take into account the Member's articulation of the objective or the objectives it pursues through its measure, but it is not bound  by that Member's characterizations of such 
objective(s).
1108 Indeed, the panel must take account of all evidence put before it in this regard, 
including "the texts of statutes, legislative histor y, and other evidence regarding the structure and 
operation" of the measure at issue.1109 A panel's identification of the "objective" of a measure is a 
matter of legal characterization subject to a ppellate review under Article 17.6 of the DSU.1110  
5.145.  Contrary to what Norway suggests, the Panel did not find that addressing EU public moral 
concerns regarding seal welfare was the "sole ob jective" of the EU Seal Regime. Following its 
review of the text of the EU Seal Regime, the Panel concluded that the European Union, in 
designing the measure, " sought to address  the public concerns on seal welfare".1111 The Panel also 
surveyed the legislative history and considered that it " demonstrates the existence  of the 
EU public's concerns about seal welfare".1112 The Panel further found that the EU public's concerns 
on seal welfare "are related to seal hunting in general, and not to any particular type of 
hunting".1113 On this basis, the Panel concluded that " the principal objective of adopting a 
regulation on trade in seal products  was to address public concerns on seal welfare."1114 
5.146.  In the light of the Panel's conclusion that the "main"1115 or "principal"1116 element of the 
objective consisted of addressing EU public co ncerns regarding seal welfare, the Panel then 
proceeded to find that the IC and other interests had been "accommodated" in the measure.1117 
Thus, when the Panel stated that the other interests "must be distinguished from the main 
                                               
1104 Panel Reports, para. 7.404 (referring to European  Union's opening statement at the second Panel 
meeting, para. 44; and European Union' s response to Panel question No. 104). 
1105 European Union's other appellant's submission, pa ras. 96 (referring to European Union's second 
written submission to the Panel, paras. 139-146) and 110. 
1106 European Union's other appellant's submission, para. 110. 
1107 European Union's other appellant' s submission, para. 98 (referring to  European Union's first written 
submission to the Panel, paras. 38-40;  European Union's second written su bmission to the Panel, paras. 275 
and 276; and European Union's response to Panel questions Nos. 10, 31, 104, 136). 
1108 Appellate Body Report,  US – Tuna II (Mexico) , para. 314 (referring to Appellate Body Report, US – 
Gambling , para. 304). 
1109 Appellate Body Report,  US – Tuna II (Mexico) , para. 314. 
1110 In China – Auto Parts , the Appellate Body stated: 
The Appellate Body has explicitly stated that the municipal law of WTO Members may serve not 
only as evidence of facts, but also as ev idence of compliance or non-compliance with 
international obligations. When a panel examines the municipal law of a WTO Member for purposes of determining whether the Member has complied with its WTO obligations, that determination is a legal characterization by a pane l, and is therefore subject to appellate review 
under Article 17.6 of the DSU. 
(Appellate Body Reports, China – Auto Parts , para. 225 (referring to Appellate Body Reports, US – Section 211 
Appropriations Act , para.  105; and India – Patents (US) , paras. 65, 66, and 68) (fns omitted)) 
1111 Panel Reports, para. 7.389. (emphasis added) 
1112 Panel Reports, para. 7.398. (emphasis added) 
1113 Panel Reports, para. 7.398 (referring to COWI 2008 Report, pp. 124-127). 
1114 Panel Reports, para. 7.401. (emphasis added) The Panel subsequently found that the overall 
objective of the EU Seal Regime was to address public mo ral concerns on seal welfare in respect of two aspects 
consisting of: (i) EU public participation as consumer s in and exposure to products derived from inhumanely 
killed seals; and (ii) the number of inhumanely killed seals. (See e.g. ibid., paras. 7.410 and 7.443) 
1115 Panel Reports, para. 7.402. 
1116 Panel Reports, para. 7.401. 
1117 Panel Reports, paras. 7.399 and 7.402. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  objective of the measure as a whole", it was commenting on how the relative significance of the 
policy interests played out in the measure, sugge sting that the IC and other interests were not 
manifest in the objective of the measure in the same manner as concerns regarding seal welfare.
1118 This is confirmed by the subsequent statem ent of the Panel that, "unlike the issue of 
seal welfare", it saw no evidence that the IC and other interests were "grounded in the concerns of 
EU citizens" and that these interests appear instead "to have been included in the course of the legislative process".
1119 This was not a statement by the Panel that policy concerns only have 
validity if they are grounded in the concerns of citizens, as opposed to being advanced by 
legislators. Rather, we understand this to have been considered by the Panel as further evidence supporting its conclusion that concerns regarding seal welfare were what principally motivated adoption of the measure, and that the IC and other interests were also reflected in the design and 
implementation of the measure in that they were  accommodated so as to mitigate the impact of 
the measure on those interests. 
5.147.  In addition, the Panel's statement that IC and other interests "do not … form independent 
policy objectives of the EU Seal Regime as a whole"
1120 must be read together with the various 
statements of the Panel confirming that the inte rests protected or promoted in the IC, MRM, and 
Travellers exceptions are reflected in the measure itself. The Panel thus acknowledged the role of 
these interests when it stated that, in designin g the EU Seal Regime, the European Union sought 
to address concerns on seal welfare while " also [taking] into account " IC, MRM, and Travellers 
interests.1121 The Panel also stated that, " in drawing up the measure , the European Union 
accommodated other interests or considerations , such as the Inuit communities engaged in seal 
hunting, seals hunted for marine management pu rposes, and seal products brought into the 
European Union for personal use".1122 The Panel noted, in particular, references in the legislative 
history that "the interests of Inuit and indigeno us communities engaged in seal hunting should be 
protected from possible trade regulations on seal products."1123 Thus, although the Panel rejected 
the contention that IC and other interests reflecte d independent objectives of the EU Seal Regime, 
we do not understand the Panel to have excluded the role of IC and other interests in the design 
and implementation of the measure.  
5.148.  Finally, we note that, although the Panel did not determine the moral content of IC and 
MRM interests, either alone or as part of a single  moral standard governing the concerns in respect 
of seal welfare, the Panel also did not accept the European Union's contention that the benefits to 
Inuit communities "outweighed" concerns in respect of seal welfare.1124 Thus, the Panel concluded 
that, while the EU public had moral concerns rega rding seal welfare in general, the Panel did not 
consider that the evidence before it supported th e European Union's position that "the EU public 
attributes a higher moral value to the protection of Inuit interests as compared to seal welfare".1125 
In this regard, the Panel referred to its conclusion that the evidence before it indicated that 
                                               
1118 Panel Reports, para. 7.402. 
1119 Panel Reports, para. 7.402. 
1120 Panel Reports, para. 7.402. 
1121 Panel Reports, para. 7.389. (emphasis added) 
1122 Panel Reports, para. 7.399. (emphasis added) 
1123 Panel Reports, para. 7.401 (referring to Council Directive No. 83/129 of 28 March 1983 concerning 
the importation into Member States of skins of ce rtain seal pups and prod ucts derived therefrom, Official 
Journal of the European Communities , L Series, No. 91 (9 April 1983), pp. 30-31 (Panel Exhibit CDA-12) 
(EC Seal Pups Directive); European Co mmission, Proposal for a Regulation of the European Parliament and the 
Council concerning trade in seal products (23 July 2008) COM(2008) 469 final (Panel Exhibit JE-9) (Commission Proposal), p. 5; Committee on th e Internal Market and Consumer Protection, Report on the 
proposal for regulation of the Euro pean Parliament and of the Council concerning trade in seal products  
(5 March 2009), A6-0118 (Panel Exhibit JE-4) (Parliament Report), p. 10 (Justification for Amendment 8)). The Panel further stated: 
The legislative history of the EU Seal Regime shows that exceptions for Inuit and indigenous 
communities from the regulation on  seal products, albeit varying in scope, were consistently a 
consideration. The European Commission's prop osed regulation, subseq uent comments on the 
regulation, and the parliament's proposal also indicate references to  exempting imports of 
occasional nature and for personal use.  
(Ibid., fn 658 to para. 7.401 (referring to Commission Proposal, p. 5; and Parliament Report, p. 10)) 
1124 Panel Reports, para. 7.299 (referring to European Union's response to Panel question No. 31). 
1125 Panel Reports, para. 7.299 (referring to ibid., para. 7.410 and fn 676 thereto). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  EU public concerns on seal welfare appear to be related to seal hunts in general, and not to any 
particular type of seal hunts.1126 
5.149.  Before we reach a conclusion regarding the objective of the EU Seal Regime, we first 
examine whether, as Norway contends, the Panel acted inconsistently with Article 11 of the DSU in 
its identification of the objective of the EU Seal Regime.1127 
5.150.  Article 11 of the DSU requires a panel to make "an objective assessment of the matter", 
which includes an objective assessment of the facts of the case. We recall the standard articulated 
in past Appellate Body reports for establishing a violation of Article 11 of the DSU. In accordance 
with Article 11 of the DSU, a panel is required to "consider all the evidence presented to it, assess its credibility, determine its weight, and ensure that its factual findings have a proper basis in that evidence".
1128 In particular, "panels [may not] make affirmative findings that lack a basis in the 
evidence contained in the panel record".1129 Within these parameters, "it is generally within the 
discretion of the Panel to decide which evidence it chooses to utilize in making findings".1130 In this 
regard, the Appellate Body has stated that it will not "interfere lightly" with a panel's fact-finding 
authority but, rather, for a claim under Article 11 to succeed, the Appellate Body "must be satisfied 
that the panel has exceeded its authority as the trier of facts".1131 In other words, "not every error 
allegedly committed by a panel amounts to  a violation of Article 11 of the DSU"1132, but only those 
that are so material that, "taken together or sing ly", they undermine the objectivity of the panel's 
assessment of the matter before it.1133 Accordingly, it is insufficient for an appellant simply to 
disagree with a statement or to assert that it is  not supported by evidence. Ultimately, the party 
raising the claim bears the onus of explaining why the alleged error meets the standard of review 
under Article 11.1134 
5.151.  Norway's contention that the Panel acted inconsistently with its obligations under Article 11 
of the DSU rests on several grounds. Norway first contends that the Panel disregarded evidence 
provided by Norway allegedly showing that the legislative objectives of the EU Seal Regime 
included protecting the economic and social interests of indigenous communities, and separately promoting the sustainable management of marine resources. According to Norway, the Panel 
undertook a "selective" and "unbalanced" review of the evidence of the legislative history, 
dedicating most of its analysis to addressing evidence that supported the public morals objective asserted by the European Union.
1135 By contrast, the Panel's "discussion and consideration of the 
IC and [M]RM objectives asserted by Norway receive[d] a few cursory lines of commentary".1136 
According to Norway, the Panel made only the limited statement that it " noticed  references in 
certain evidence relating to the measure's legislative history that the interests of Inuit and indigenous communities engaged in seal hunting should be protected from possible trade 
                                               
1126 Panel Reports, para. 7.410 and fn 676 thereto. 
1127 Norway's appellant's submission, para. 170. 
1128 Appellate Body Report, Brazil – Retreaded Tyres , para. 185 (referring to Appellate Body Report, 
EC – Hormones , paras. 132 and 133). See also Appellate Body Reports, Australia – Salmon , para. 266; EC – 
Asbestos , para. 161; EC – Bed Linen (Article 21.5 – India) , paras. 170, 177, and 181; EC – Sardines, 
para. 299; EC – Tube or Pipe Fittings , para. 125; Japan – Apples , para. 221; Japan – Agricultural Products II , 
paras. 141 and 142; Korea – Alcoholic Beverages , paras. 161 and 162; Korea – Dairy , para. 138; US – Carbon 
Steel, para. 142; US – Gambling , para. 363; US – Oil Country Tubular Goods Sunset Reviews , para. 313; and  
EC – Selected Customs Matters , para. 258. 
1129 Appellate Body Report, US – Carbon Steel , para. 142 (referring to Appellate Body Report, US – 
Wheat Gluten , paras. 161 and 162). 
1130 Appellate Body Report, EC – Hormones , para. 135. The Appellate Body has also stated that: a panel 
has to base its findings on a sufficient evidentiary  basis on the record (A ppellate Body Report, EC – Fasteners 
(China) , para. 441); may not apply a double stan dard of proof (Appellate Body Report, US – Upland Cotton 
(Article 21.5 – Brazil) , para. 293); and its treatment of the evidence must not "lack even-handedness" 
(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 292). 
1131 Appellate Body Report, US – Wheat Gluten , para. 151. 
1132 Appellate Body Report, EC – Fasteners (China) , para. 442. 
1133 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1318.  
1134 Appellate Body Report, EC – Fasteners (China) , para. 442. (emphasis omitted) 
1135 Norway's appellant's submission, para. 182. 
1136 Norway's appellant's submission, para. 183. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  regulations on seal products".1137 Norway emphasizes that an objective assessment of the facts 
"requires substantially more than 'notice' by a panel."1138  
5.152.  Norway further asserts that the Panel' s "imbalanced treatment of the evidence is 
highlighted by its selective reliance"1139 on a proposal by the European Commission for a 
regulation concerning trade in seal products1140 (Commission Proposal). In this regard, Norway 
notes that the Panel "referred to the Commission's Proposal to support the view that public concerns regarding seal welfare were to be addressed in the measure, quoting two full paragraphs 
of that Proposal".
1141 Yet, according to Norway, "the Panel failed to attribute equal (or for that 
matter any) weight in its discussion to other objectives highlighted in that very same  
document".1142 Norway argues that the evidence of th e legislative history does not support the 
Panel's "ultimate conclusion that addressing public moral concerns about seal welfare was the sole 
objective of the measure and that the protec tion of the IC and [M]RM interests are not 
objectives".1143 
5.153.  As noted by the Panel, the Commission Proposal refers to the public concerns about "the 
animal welfare aspects of the killing and skinning of seals and about trade occurring in products 
possibly derived from seals that have been killed and skinned with avoidable pain, distress and other forms of suffering".
1144 The Impact Assessment accompanying the Commission Proposal1145 
(Commission 2008 Impact Assessment) also describ es the main overarching objectives of the 
initiative as "[p]rotect[ing] seals from acts that cause them avoidable pain, distress, fear and other forms of suffering during the killing and skinning process", and "[a]ddress[ing] the concerns of the 
general public with regard to the killing and skinning of seals".
1146 The Panel further observed that 
"the Commission Proposal describes public concerns as relating to 'ethical' considerations."1147 For 
example, the Panel noted that the following expressions were used in the Commission Proposal: "out of ethical reasons"; "citizens' deep indignation and repulsion regarding the trade in seal 
products in such conditions"; "the public's growing awareness and sensitivity to ethical 
considerations in how seal products are obtained".
1148 The Panel added that the Commission 
Proposal stated:  
For several years, many members of the public have been concerned about the animal 
welfare aspects of the killing and skinning  of seals and about trade occurring in 
products possibly derived from seals that ha ve been killed and skinned with avoidable 
pain, distress and other forms of suffering, which seals, as sentient mammals, are 
capable of experiencing. Those concerns have therefore been expressed by members 
of the public out of ethical reasons . The Commission received during the last years a 
massive number of letters and petitions on the issue expressing citizens' deep 
indignation and repulsion regarding the trade in seal products in such conditions.1149  
                                               
1137 Norway's appellant's submission, para. 183 (quoti ng Panel Reports, para. 7.401). (emphasis added 
by Norway) 
1138 Norway's appellant's submission, para. 184. (emphasis omitted) 
1139 Norway's appellant's submission, para. 188. 
1140 European Commission, Proposal for a Regulati on of the European Parliament and the Council 
concerning trade in seal products (23 July 2008) COM(2008) 469 final (Panel Exhibit JE-9). 
1141 Norway's appellant's submission, para. 188 (referring to ibid., paras. 116 and 131). 
1142 Norway's appellant's submission, para. 188 (refe rring to Commission Proposal, p. 5). (emphasis 
original) Norway also claims that the Panel did not address "key report s and opinions, which reflected the 
considerations expressed in relevant committees of the EU Parliament". (Norway's appellant's submission, para. 189) These reports, Norway maintains, "provide key insights into why, and how, the IC and [M]RM 
interests were important to EU legi slators, and even highlighted how they contradicted the animal welfare 
considerations under the EU Seal Regime". (Ibid.) 
1143 Norway's appellant's submission, para. 196. (emphasis original) 
1144 Panel Reports, para. 7.394 (referring to Commission Proposal, pp. 2-3, 8, and 11). 
1145 European Commission, "Commission Staff Workin g Document accompanying document to the 
Proposal for a regulation of the Euro pean Parliament and of the council concerning trade in seal products – 
Impact Assessment on the potential impact of a ban of products derived from seal species" (23 July 2008), COM(2008) 469 final (Panel Exhibit JE-16). 
1146 Panel Reports, para. 7.394 (referring to Commission 2008 Impact Assessment, p. 23). 
1147 Panel Reports, paras. 7.394 and 7.395 (referring to Commission Proposal, p. 2 (Explanatory 
memorandum)). 
1148 Panel Reports, para. 7.395 (quoting Commission Proposal, pp. 2-3 (Explanatory memorandum)). 
1149 Panel Reports, para. 7.395 (quoting Commissio n Proposal, p. 2 (Explanatory memorandum)). 
(emphasis added by the Panel) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.154.  The Panel concluded, therefore, that the Commission Proposal "provide[d] evidence that 
the public concerns about seal welfare constitute a moral issue for EU citizens".1150 
5.155.  The Commission Proposal also notes that the "fundamental economic and social interests 
of Inuit communities traditionally engaged in the hunting of seals should not be adversely 
affected."1151 Norway's complaint appears to relate to the fact that the Panel did not attribute this 
statement any weight in its discussion of other objectives highlighted in that same document. We do not see, however, why the Panel's failure explicitly to address and rely upon this statement in 
the Commission Proposal would have "a bearing on the objectivity of the panel's factual 
assessment".
1152  
5.156.  We further note that this statement fr om the Commission Proposal cited by Norway is 
immediately preceded by the following statements regarding seal welfare concerns, which also fall 
under the heading "Grounds for and objectives of the proposal": 
The various prohibitions provided for by this Regulation would respond to the animal 
welfare concerns expressed by members of th e public as to the possible introduction 
into the Community of seal products obtained from seals that might not have been 
killed and skinned without causing avoi dable pain, distress and other forms of 
suffering. 
It should however be possible for trade in seal products to take place where the killing 
and skinning methods used would be such as offering reasonable guarantees that the killing and skinning occur without causing avoidable pain, distress and other forms of suffering.  
The regulatory framework so established wo uld therefore be designed so as giving 
incentives to countries concerned to review and improve, where need be, their legislation and practice concerning the meth ods to be complied with when killing and 
skinning seals.
1153 
5.157.  Like the single sentence that Norway cl aims the Panel overlooked, the above observations 
are also not quoted in the Panel Reports. Moreov er, we note that they all articulate concerns 
regarding seal welfare, rather than concerns regarding the protection of indigenous communities. 
5.158.  To establish that the Panel acted inconsistently with Article 11 of the DSU, it must be 
established that the Panel exceeded the bounds of its discretion as the trier of fact, including in its treatment of the evidence regarding the legislat ive history. As the Appellate Body noted in Korea – 
Alcoholic Beverages , it is not an error of law under Article 11 of the DSU for a panel "to fail to 
accord the weight to the evidence that one of the parties believes should be accorded to it".
1154 In 
reviewing the Panel's findings regarding the legislative history, we consider that the Panel acted 
within its discretion in ascribing weight to the evidence. As we noted, the Panel concluded that 
EU public concerns regarding seal welfare were what principally motivated the adoption of the 
EU Seal Regime. At the same time, although the Panel rejected the contention that IC and other 
interests reflected independent objectives of the EU Seal Regime, it noted that these interests 
were accommodated in the design and implementation of the measure. We are not persuaded that the Panel undertook a "selective" and "unbalanced"  review of the evidence of the legislative 
history. Rather, it declined to attribute to certain aspects of the legislative history of the EU Seal 
Regime the weight and significance that Norway considers it should have.  
5.159.  Regarding the text of the measure, Norway argues that the Panel erred by failing to take 
into account its own findings. For example, according to Norway, the Panel found that the 
preamble of the Basic Regulation "sets out three main considerations with  equal prominence, 
which included  those relating to IC and [M]RM interests".
1155 According to Norway, the Panel's 
failure to explain why, in the light of that finding, "it still gave prominence singularly to the seal 
                                               
1150 Panel Reports, para. 7.396. 
1151 Norway's appellant's submission, para. 653 (quoting Commission Proposal, p. 5). 
1152 Appellate Body Report, EC – Fasteners (China) , para. 442. 
1153 Commission Proposal, pp. 4-5. 
1154 Appellate Body Report, Korea – Alcoholic Beverages , para. 164. 
1155 Norway's appellant's submission, para. 198. (emphasis original) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  welfare concerns of the EU public, constitutes further error."1156 Norway also maintains that, 
despite the Panel's finding that the Implementing Regulation was necessary to the enforcement of 
the EU Seal Regime, the Panel overlooked the re levance of the Implementing Regulation and its 
enforcement provisions relating to the IC and MRM requirements.1157 
5.160.  Based on its analysis of the preamble of the Basic Regulation, the Panel found that: 
[T]he Basic Regulation appears to address three main considerations: first, the need 
to harmonize the regulations on seal products within the EU internal market 
(recitals 5, 6, 7, 8, 10, 15, 21); second, concerns about seal welfare issues (recitals 1, 
4, 5, 10, 11); and, third, the need to preserve the economic and social interests of Inuit communities engaged in seal hunting and to define the conditions for IC, MRM, and Travellers exceptions (recitals 16 and 17).
1158 
5.161.  Contrary to what Norway suggests, we do  not understand the Panel to have concluded that 
these considerations were of "equal prominence".1159 Nor are we persuaded that the Panel gave 
"prominence singularly to the seal welfare concerns of the EU public".1160 Rather, as we have said, 
the EU Seal Regime pursued EU public moral concerns regarding seal welfare while at the same 
time accommodating other interests so as to mitigate the impact of the measure on those interests. Thus, in examining the text of the EU  Seal Regime, the Panel found that "in designing 
the Regime, the European Union sought to address the public concerns on seal welfare."
1161 The 
Panel added that, in doing so, "the European Union also took into account certain other interests (i.e. IC, MRM, and Travellers interests)."
1162  
5.162.  We therefore do not agree with Norway that the Panel somehow ignored its own findings 
or other features of the text of the EU Seal Regime. Although Norway contends that the Panel 
failed to take into account how the text of the measure "catered to the goals of Member States, such as Sweden and Finland" to protect MRM intere sts and to the "desire to protect the interests of 
the Inuit communities"
1163, we do not consider that the Panel committed legal error in failing to 
attribute to evidence of these interests the meaning and significance Norway considers it should be given. Moreover, we consider that, notwithsta nding the role played by the Implementing 
Regulation in enforcing the EU Seal Regime, the Panel was acting within its discretion in stating 
that it considered that the Implementing Regulation "does not in itself assist us in identifying the objective of the measure".
1164 
5.163.  Norway recalls that the reasons given by the Panel for finding that IC and MRM interests 
are not objectives of the EU Seal Regime were: (i) that the three interests pursued in the measure 
"must be distinguished"; (ii) that the IC and MR M interests are not grounded "in the concerns of 
EU citizens"; (iii) that the IC and MRM "exceptions"  were "included in the [course of the] legislative 
process"; and (iv) that the exception in Brazil – Retreaded Tyres  was not argued to constitute an 
"objective".1165 In Norway's view, "these reasons do not provide a coherent basis for the Panel's 
conclusion."1166 Moreover, according to Norway, the Panel's reasoning fails to reconcile its finding 
with "the considerable evidence showing that protection of the IC and MRM interests were 
objectives of the measure."1167  
5.164.   We have addressed Norway's arguments concerning the reasons given by the Panel for 
finding that protecting IC and MRM interests were not objectives of the EU Seal Regime in 
paragraphs 5.146 and 5.147 of these Reports and have rejected Norway's arguments in that 
context. We therefore see no grounds separately to consider these issues under Article 11 of the DSU. 
                                               
1156 Norway's appellant's submission, para. 198. 
1157 Norway's appellant's submission, para. 201. 
1158 Panel Reports, para. 7.387. 
1159 Norway's appellant's submission, para. 198. (emphasis omitted) 
1160 Norway's appellant's submission, para. 198. 
1161 Panel Reports, para. 7.389. 
1162 Panel Reports, para. 7.389. 
1163 Norway's appellant's submission, para. 199. 
1164 Panel Reports, fn 633 to para. 7.388. 
1165 Norway's appellant's submission, para. 208 (quoting Panel Reports, para. 7.402). 
1166 Norway's appellant's submission, para. 209 (referring to ibid., paras. 66-110). 
1167 Norway's appellant's submission, para. 209. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.165.  Regarding the expected operation of the me asure, Norway argues that the Panel failed to 
consider and give probative weight to its own findings in other sections of its Reports. According to Norway, these show that the EU Seal Regime will operate to allow into the EU market "all, or virtually all"
1168 seal products from Greenland under the IC exception; and that seal products from 
certain EU countries, including Sweden, would "likely qualify"1169 under the MRM exception. 
Norway posits that this evidence concerning the expected operation of the EU Seal Regime 
"confirms that the goals expressed in the legislativ e history, and reflected in the text and hierarchy 
of the measure, are implemented in the measure's operation to a considerable practical extent"1170 
and that together "with the remaining evidence, these findings should have revealed to  the Panel that the EU Seal Regime pursues objectives relating to the protection of IC and [M]RM interests."
1171 
5.166.  The Appellate Body has consistently recognized that panels enjoy a margin of discretion in 
their assessment of the facts. This margin includes the discretion of the panel to decide which evidence it chooses to utilize in making its findings
1172, and to determine how much weight to 
attach to the various items of evidence placed before it by the parties to the case.1173 A panel does 
not commit error simply because it declines to accord to the evidence the weight that one of the parties believes should be accorded to it.
1174 Although the Panel could have provided more 
reasoning to support its findings, we do not think that any shortcomings in the Panel's analysis of 
the expected operation of the EU Seal Regime are so serious as to amount to a failure to make an objective assessment of the matter before it. Nor do we see why the Panel's finding that the EU Seal Regime will operate to allow into the EU market "all, or virtually all"
1175 seal products from 
Greenland under the IC exception, and that seal  products from certain EU countries, including 
Sweden, would "likely qualify"1176 under the MRM exception, would necessarily mean that the 
protection of IC and MRM interests amount to separate objectives of the EU Seal Regime.  
5.167.  For the reasons stated above, we reject Norway's contentions that the Panel erred in its 
characterization of the objective of the EU Seal Regime, and that the Panel failed to comply with 
its duties under Article 11 of the DSU in its asse ssment of the evidence regarding the objective of 
the EU Seal Regime. Having reviewed the Panel's findings and the participants' arguments on 
appeal, we consider that the principal objective of  the EU Seal Regime is to address EU public 
moral concerns regarding seal welfare, while accommodating IC and other interests so as to mitigate the impact of the measure on those interests.  
5.3.2  Article XX(a) of the GATT 1994 
5.168.  Article XX(a) of the GATT 1994 reads: 
Article XX 
General Exceptions 
Subject to the requirement that such measures are 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, 
nothing in this Agreement shall be construe d to prevent the adoption or enforcement 
by any Member of measures: 
(a) necessary to protect public morals; … 
                                               
1168 Norway's appellant's submission, para. 204 (quoting Panel Reports, para. 7.164). 
1169 Norway's appellant's submission, para. 204 (quoting Panel Reports, para. 7.351). 
1170 Norway's appellant's submission, para. 205. 
1171 Norway's appellant's submission, para. 206. 
1172 Appellate Body Report, EC – Hormones , para. 135. 
1173 Appellate Body Report, Korea – Dairy , para. 137. 
1174 Appellate Body Reports, Australia – Salmon , para. 267; Japan – Apples , para. 221; and Korea – 
Alcoholic Beverages , para. 164. 
1175 Norway's appellant's submission, para. 204 (quoting Panel Reports, para. 7.164). 
1176 Norway's appellant's submission, para. 204 (quoting Panel Reports, para. 7.351). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.169.  As established in WTO jurisprudence, th e assessment of a claim of justification under 
Article XX involves a two-tiered analysis in which a measure must first be provisionally justified under one of the subparagraphs of Article XX, before it is subsequently appraised under the chapeau of Article XX.
1177 As the Appellate Body has stated, provisional justification under one of 
the subparagraphs requires that a challenged measure "address the particular interest specified in 
that paragraph" and that "there be a sufficient nexus between the measure and the interest protected".
1178 In the context of Article XX(a), this means that a Member wishing to justify its 
measure must demonstrate that it has adopted or enforced a measure "to protect public morals", 
and that the measure is "necessary" to protect such public morals.1179 As the Appellate Body has 
explained, a necessity analysis involves a process of "weighing and balancing" a series of factors, 
including the importance of the objective, the cont ribution of the measure to that objective, and 
the trade-restrictiveness of the measure.1180 The Appellate Body has further explained that, in 
most cases, a comparison between the challenged measure and possible alternatives should then be undertaken.
1181 The burden of proving that a measure is  "necessary to protect public morals" 
within the meaning of Article XX(a) resides with the responding party, although a complaining 
party must identify any alternative measures that, in its view, the responding party should have taken.
1182  
5.170.  Canada and Norway each appeal the Panel's conclusion that the EU Seal Regime is 
necessary to protect public morals within the meaning of Article XX(a) of the GATT 1994.1183 The 
complainants present several challenges to the Panel's analysis in respect of Article XX(a). First, Norway submits that the Panel erred by seeking to  justify under Article XX(a) the EU Seal Regime 
as a whole, instead of the aspects of the measure giving rise to WTO-inconsistency under 
Articles I:1 and III:4 of the GATT 1994. Thus, in se ction 5.3.2.2 below, we address the question of 
what aspects of the EU Seal Regime must be justified under Article XX(a). 
5.171.  Second, Canada maintains that the Panel failed to establish that there was a risk to the 
public morals of the European Union regarding animal welfare that is unique to seals. Canada's appeal goes to the question of whether the Pane l properly found that the EU Seal Regime is a 
measure taken "to protect public morals", and is addressed in section 5.3.2.3 below. 
5.172.  Third, Canada and Norway contend that the Panel failed to establish that the EU Seal 
Regime makes a material contribution to the objective of addressing EU public moral concerns regarding seal welfare. This claim implicates the Panel's assessment of whether the EU Seal 
Regime is "necessary" to protect public morals. In addition, because the Panel's analysis under 
Article XX(a) relies on findings it made in th e context of Article 2.2 of the TBT Agreement
1184, 
Canada and Norway also incorporate by refe rence various arguments from their appeals  
of the Panel's findings and analysis under Articl e 2.2 regarding the contribution of the EU Seal 
Regime to the objective of the measure, as well as the alternative measure proposed by the 
                                               
1177 Appellate Body Reports, US – Gasoline , p. 22, DSR 1996:I, p. 20; and US – Shrimp , paras. 119 
and 120. See also Appellate Body Report, US – Gambling , para. 292. 
1178 Appellate Body Report, US – Gambling , para. 292. Although the issue on appeal in US – Gambling  
concerned Article XIV(a) of the GATS, the Appellate Body stated that the two-tier analysis set out in WTO jurisprudence is contemplated under both Article XIV of the GATS and Article XX of the GATT 1994. (Ibid.) 
1179 Panel Report, US – Gambling , para. 6.455.  
1180 Appellate Body Reports, Korea – Various Measures on Beef , para. 164; US – Gambling , para. 306; 
and Brazil – Retreaded Tyres , para. 182. 
1181 Appellate Body Report, US – Gambling , para. 307 (referring to Appellate Body Report, Korea – 
Various Measures on Beef , para. 166). See also Appellate Body Report, US – Tuna II (Mexico) , para. 321 
(referring to Appellate Body Report,  US – Gambling , para. 307). In the context of Article 2.2 of the 
TBT Agreement, the Appellate Body stated that "[i]n mo st cases, a comparison of the challenged measure and 
possible alternative measures should be  undertaken". (Appellate Body Report, US – Tuna II (Mexico) , 
para. 322) The Appellate Body then proceeded to identi fy circumstances in which comparison with possible 
alternative measures may not be required, for instance, when the challenged measure is not trade restrictive, 
or when it makes no contribution to the objective. (Ibid., fn 647 to para. 322) 
1182 Appellate Body Report,  US – Gambling , paras. 309-311. The Appellate Body additionally noted that 
a responding party need not identify the universe of le ss trade-restrictive alternat ive measures and then show 
that none of those measures achieves the desired objective. The WTO agreements, the Appellate Body stated, 
do not contemplate such an impracticable and impossible burden. (Ibid., para. 309) 
1183 Panel Reports, para. 7.639. 
1184 Panel Reports, paras. 7.638 and 7.639. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  complainants.1185 We address these claims concerning the Panel's "necessity" analysis in 
sections 5.3.2.4 and 5.3.2.5 below.1186 
5.173.  Finally, we note that, in US – Shrimp , the Appellate Body stated that it would not "pass 
upon the question of whether there is an implied jurisdictional limitation in Article XX(g), and if so, 
the nature or extent of that limitation".1187 The Appellate Body explained that, in the specific 
circumstances of that case, there was "a sufficient nexus between the migratory and endangered marine populations involved and the United States for purposes of Article XX(g)".
1188 As set out in 
the preamble of the Basic Regulation, the EU Seal Regime is designed to address seal hunting 
activities occurring "within and outside the Community"1189 and the seal welfare concerns of 
"citizens and consumers" in EU member States.1190 The participants did not address this issue in 
their submissions on appeal.1191 Accordingly, while recognizing the systemic importance of the 
question of whether there is an implied jurisdictional limitation in Article XX(a), and, if so, the 
nature or extent of that limitation, we have decided in this case not to examine this question further. 
5.174.  Before turning to each of Canada's and Norway's claims as set out above, we first recall 
the Panel's findings under Article XX(a). 
5.3.2.1  The Panel's findings on Article XX(a) 
5.175.  The Panel first addressed the issue of wh at aspects of the EU Seal Regime must be 
justified under Article XX of the GATT 1994. Although the parties agreed that it is the aspect of a 
measure infringing the GATT 1994 that must be justified under Article XX, the Panel stated that it need not limit itself to considering that aspect of the measure in order to determine the measure's 
justifiability under Article XX.
1192 Instead, the Panel observed that the aspects of a measure that 
must be considered in an Article XX analysis are to be identified in the light of the specific circumstances of a given dispute, including the natu re and characteristics of the measure at issue, 
the manner in which the complainants present th eir claims, and the relationship between the 
GATT 1994 and the other covered agreements that were also examined with respect to the given measure.
1193  
                                               
1185 Canada's appellant's submission, paras. 407 and 408; Norway's appellant's submission, 
paras. 858-867. 
1186 There are certain claims raised by Canada an d Norway in respect of Article 2.2 of the TBT 
Agreement on which we need not rule by virtue of  our mooting of the Panel's findings under the TBT 
Agreement. (See supra , para. 5.132) For example, we do not rule on Canada's claim that the Panel failed 
properly to assess the risks non-fulfilment would create, or to conduct a relational analysis taking into account such risks of non-fulfilment, as required by Article 2.2. (Canada's Notice  of Appeal, pp. 1-2) To the extent that 
Canada contends that the Panel was required under Ar ticle XX(a) to reach a prel iminary determination of 
necessity before proceeding to compare the challenged measure with possible alternatives, we disagree. (See 
infra, fn 1300) We also do not rule on Norway's claims that  the Panel failed to address its contention that the 
three contested conditions under the MRM requirements  make no contribution to the measure's objective 
(Norway's Notice of Appeal, para. 7, bullet point 3) , and failed to address ar bitrary or unjustifiable 
discrimination in its analysis under Article 2.2 (ibid ., para. 8). These claims are set out, respectively, in 
sections IV.B.2.g and IV.B.3 of Norway's appellant's su bmission, which were not inco rporated by reference in 
its claims under Article XX(a). (Norway's appellant's subm ission, paras. 863 (referring to section IV.B.2.e), 864 
(referring to section IV.B.2.f), and 867 (referring to se ctions IV.B.4.e and IV.B.4.f)) In addition, because we 
have rendered moot the Panel's findin g in respect of Article 2.2, the cond itions for Norway's  request that we 
complete the legal analysis have not been sati sfied. (Norway's Notice of Appeal, para. 11) 
1187 Appellate Body Report, US – Shrimp , para. 133. 
1188 Appellate Body Report, US – Shrimp , para. 133. 
1189 Basic Regulation, preamble, recital 3. 
1190 Basic Regulation, preamble, recital 5. 
1191 In response to questioning at the oral hearing,  the participants expressed their agreement that 
there is a sufficient nexus between the public moral concerns and activities addressed by the measure, on the one hand, and the European Union, on the other hand. The participants also indicated that, because the parties did not dispute that there was a sufficient nexus, the Appellate Body need not explore this issue further. 
(Participants' responses to questioning at the oral hearing) 
1192 Panel Reports, para. 7.618. 
1193 Panel Reports, para. 7.619. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.176.  With respect to the nature and characteristics of the measure at issue in the present 
disputes, the Panel was of the view that the tw o components comprising the EU Seal Regime  
– i.e. the "ban" and the "exceptions" – are "close ly connected" to each other since the exceptions 
cannot "operate in isolation" without the ban.1194 The Panel compared this to the "similar factual 
circumstances" in US – Gasoline , where, in the Panel's view, the Appellate Body "weighed and 
considered the interrelationship of different comp onents of the measure" in the context of its 
analysis under Article XX(g).1195 The Panel saw no reason why the Appellate Body's approach in 
the context of Article XX(g) was not relevant to its analysis under Article XX(a) and (b).1196 The 
Panel further noted that the IC and MRM exceptions have a "substantial" relationship with the ban given that the exceptions cannot exist without the ban, and that the exceptions inform the scope 
of the ban.
1197  
5.177.  Next, the Panel recalled its analysis of the EU Seal Regime under the TBT Agreement, 
noting that the EU Seal Regime as a whole was found to constitute a "technical regulation". The Panel further noted that the policy objective pursued by the EU Seal Regime was determined to be 
"addressing the EU public moral concerns on seal welfare"
1198; that the EU Seal Regime as a whole 
was examined for the necessity of its trade-rest rictiveness in fulfilling the identified policy 
objective under Article 2.2; and that the justification of the detrimental impacts caused by the 
regulatory distinctions embodied in the IC and MRM exceptions was examined under 
Article 2.1.1199 
5.178.  Based on these observations, the Panel stated that:  
[A]lthough it is the aspects of the EU Seal Regime infringing the GATT 1994 (i.e. the 
IC and MRM exceptions) that must be justified under Article XX, our analysis under 
paragraphs (a) and (b) should first focus on the EU Seal Regime as a whole; it is the EU Seal Regime as a whole that pursues the European Union's identified objective, 
rather than the exceptions on their own independently from the ban.
1200 
The Panel considered that it must then examine "whether the EU Seal Regime, in particular the 
distinctions drawn in the form of the IC and MRM exceptions, are applied in a manner consistent 
with the requirements under the chapeau of Article XX".1201 
5.179.  The Panel then turned to assess whether, as claimed by the European Union, the EU Seal 
Regime is "necessary to protect public morals" and whether it is, therefore, provisionally justified under Article XX(a). The Panel began by considering whether the policy objective pursued through 
the EU Seal Regime falls within the range of policies designed to protect public morals, as 
prescribed in Article XX(a). In answering this question, the Panel recalled its intermediate finding from its analysis under Article 2.2 of the TBT Agre ement that the objective of the EU Seal Regime 
is to address EU public moral concerns regarding seal welfare. The Panel recalled that, in reaching 
this finding, it had established the existence of EU public concerns on seal welfare, as well as their 
moral nature. The Panel also recalled that it had re lied on past WTO jurisprudence on the scope of 
"public morals" under Article XX(a) of the GATT 1994 and Article XIV(a) of the GATS in identifying 
the objective of the EU Seal Regime. On this basis, the Panel found that the policy objective pursued by the European Union, namely, addressing EU public moral concerns on seal welfare, fell 
within the scope of Article XX(a) on the protection of public morals.
1202 The Panel also considered 
that the protection of public moral concerns with regard to animal welfare is an "important value 
or interest".1203 
                                               
1194 Panel Reports, para. 7.620. 
1195 Panel Reports, paras. 7.620 and 7.621. 
1196 Panel Reports, para. 7.621. 
1197 Panel Reports, para. 7.622. 
1198 Panel Reports, para. 7.623. 
1199 Panel Reports, para. 7.623. 
1200 Panel Reports, para. 7.624. (emphasis original) 
1201 Panel Reports, para. 7.624.  
1202 Panel Reports, para. 7.631. 
1203 Panel Reports, para. 7.632 (referring to Panel Report, China – Publications and Audiovisual 
Products , para. 7.817). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.180.  Next, the Panel turned to assess the measure's contribution to the objective pursued under 
Article XX of the GATT 1994 in the light of the Appellate Body's jurisprudence that such a 
contribution exists when there is a "genuine rela tionship of ends and means between the objective 
pursued and the measure at issue".1204 The Panel also recalled the Appellate Body's jurisprudence 
in the context of Article XX(b) that, when a meas ure produces restrictive effects on international 
trade as severe as those resulting from an import ban, it would be difficult for a panel to find the measure "necessary" unless it was satisfied that the measure was apt to make a material 
contribution to the achievement of its objective.
1205 Based on this, the Panel considered that, for a 
finding that the EU Seal Regime is "necessary" under Article XX(a), it must be shown that the contribution made by the "ban" to the identified objective is at least "material", given the extent of its trade-restrictiveness.
1206 The Panel stated that, following such an affirmative finding, the 
EU Seal Regime could provisionally be deemed "necessary", unless it is demonstrated that the 
European Union could have adopted a GATT-consistent or less trade-restrictive alternative.1207  
5.181.  Highlighting the "close relationship" be tween the GATT 1994 and the TBT Agreement, and 
the need to interpret the two agreements consistently and harmoniously, the Panel considered that 
its assessment of the EU Seal Regime's contribu tion to its objective under Article 2.2 of the 
TBT Agreement was relevant for its analysis under Article XX.1208 On this basis, the Panel drew 
upon its Article 2.2 analysis to note that the actual  degree of contribution by the ban must also be 
assessed by taking account of the impact of the explicit and implicit exceptions thereto.1209 With 
respect to the ban, the Panel recalled its finding under Article 2.2 that the ban contributes to the European Union's objective by reducing, to a cert ain extent, the global demand for seal products 
and by helping the EU public avoid being expose d to seal products derived from seals killed 
inhumanely. To the extent such seal products are prohibited from the EU market, therefore, the Panel found that the "ban" makes a material contribution to the objective of the measure.
1210  
5.182.  The Panel recalled its finding that the IC and MRM exceptions, combined with the absence 
of any mechanism under the measure to inform consumers of the presence of seal products on the EU market, "reduced the effectiveness" of the ban by providing market access to certain seal 
products.
1211 Similarly, the implicit exceptions also "undermine" the measure's fulfilment of the 
objective.1212 Overall, however, the Panel recalled its finding that the EU Seal Regime as a whole 
contributed "to a certain extent" to its objective of addressing EU public moral concerns on seal welfare.
1213 With respect to a GATT-consistent or le ss trade-restrictive alternative, the Panel 
recalled its earlier finding under Article 2.2 that the alternative measure proposed by the 
complainants was not reasonably available to the European Union, given, inter alia , the animal 
welfare risks and challenges that it had found to exist in seal hunts. Therefore, the Panel 
concluded that the EU Seal Regime was provisionally justified under Article XX(a).1214 
5.183.  Finally, the Panel considered the European Union's argument that the EU Seal Regime is 
also justified under Article XX(b) because it contributes to protecting the health of seals. However, 
the Panel noted that the European Union never subm itted that the protection of seal welfare as 
such was the objective of the EU Seal Regime. The Panel also recalled that the objective of the measure, namely, to address EU public moral concerns  on seal welfare, was found to fall within the 
scope of Article XX(a). For these reasons, and co nsidering the limited extent of the European 
Union's arguments under Article XX(b), the Panel found that the European Union failed to establish 
a prima facie case for its defence under Article XX(b).
1215 
                                               
1204 Panel Reports, para. 7.633 (referring to Appellate Body Report, Brazil – Retreaded Tyres , 
paras. 145-157). 
1205 Panel Reports, para. 7.635 (referring to Appellate Body Report, Brazil – Retreaded Tyres , paras. 150 
and 151). 
1206 Panel Reports, para. 7.636. 
1207 Panel Reports, para. 7.639. 
1208 Panel Reports, para. 7.634 (referring to Appellate Body Report, US – Tuna II (Mexico) , para. 317). 
1209 Panel Reports, para. 7.636. 
1210 Panel Reports, para. 7.637. 
1211 Panel Reports, para. 7.638. 
1212 Panel Reports, para. 7.638. 
1213 Panel Reports, para. 7.638. 
1214 Panel Reports, para. 7.639. 
1215 Panel Reports, para. 7.640. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.3.2.2  The Panel's analysis of the aspects of  the EU Seal Regime to be justified under 
Article XX(a) 
5.184.  We first consider Norway's claim that th e Panel erred in seeking to justify the EU Seal 
Regime as a whole under Article XX(a).1216 According to Norway, it is the "particular aspect" of a 
measure that is inconsistent with the GATT 1994 that must be justified under Article XX.1217 In the 
present disputes, since the Panel found the IC and MRM exceptions to be inconsistent with Articles I:1 and III:4 of the GATT 1994, Norway argu es, it is these specific aspects of the EU Seal 
Regime that must be justified under Article XX(a), and not the EU Seal Regime as a whole.
1218 
According to Norway, the Panel found that the EU Seal Regime  "as a whole" was provisionally 
justified on the basis of the positive contribution of the "ban".1219 In Norway's view, the Panel's 
approach "allowed aspects of the EU Seal Regime not found to be WTO-inconsistent, to shield from 
scrutiny under Article XX(a) those aspects of the measure found to be WTO-inconsistent".1220 The 
European Union, on the other hand, submits that the "less favourable treatment" under the EU Seal Regime results from th e "interplay" between the ban and the IC and MRM exceptions, and 
that the Panel was therefore correct in not limiting its analysis under Article XX(a) to the IC and 
MRM exceptions alone.
1221 
5.185.  We begin by noting that the general except ions of Article XX apply to "measures" that are 
to be analysed under the subparagraphs and chapeau, not to any inconsistency with the 
GATT 1994 that might arise from such measures. In US – Gasoline , the Appellate Body clarified 
that it is not a panel's legal conclusions of GATT-inconsistency that must be justified under Article XX, but rather the provisions of a measure that are infringing the GATT 1994.
1222 Similarly, 
in Thailand – Cigarettes (Philippines) , the Appellate Body observed that the analysis of the 
Article XX(d) defence in that case should focus on the "differences in the regulation of imports and of like domestic products" giving rise to the finding of less favourable treatment under 
Article III:4.
1223 Thus, the aspects of a measure to be justified under the subparagraphs of 
Article XX are those that give rise to the finding of inconsistency under the GATT 1994.  
5.186.  Turning to the specifics of this case, we recall the Panel's statement that: 
[A]lthough it is the aspects of the EU Seal Regime infringing the GATT 1994 (i.e. the 
IC and MRM exceptions) that must be justified  under Article XX, our analysis under 
paragraphs (a) and (b) should first focus on the EU Seal Regime as a whole; it is the EU Seal Regime as a whole that pursues the European Union's identified objective, 
rather than the exceptions on their own independently from the ban.
1224 
5.187.  The Panel stated that the EU Seal Regime  "consists of both prohibitive and permissive 
components".1225 The "prohibitive" component of the EU Se al Regime "operates as a ban on seal 
products", while the "permissive" component fl ows from "an exception and two derogations, 
forming three conditions prescribed in Article 3 of the Basic Regulation (i.e. seal products obtained from IC hunts, MRM hunts, and those imported  under the Travellers imports category)".
1226 
As noted above, the IC exception refers to th e requirements under Article 3(1) of the Basic 
Regulation and Article 3 of the Implementing Re gulation that must be met in order for seal 
products derived from IC hunts to be placed on the EU market. Similarly, the term MRM exception 
refers to the requirements under Article 3(2)(b) of the Basic Regulation and Article 5 of the 
                                               
1216 Norway's appellant's submission, para. 775.  
1217 Norway's appellant's submission, para. 779. (emphasis omitted) 
1218 Norway's appellant's submission, paras. 779-787 (referring to Panel Reports, paras. 7.56, 7.173, 
7.594, 7.600, 7.604, 7.618, and 7.624; and Norway Panel Report (DS401), para. 8.3(a) and (b)). 
1219 Norway's appellant's submission, para. 795 (referring to Panel Reports, paras. 7.636 and 7.638). 
1220 Norway's appellant's submission, para. 795. 
1221 European Union's appellee's submission, para. 407. 
1222 Appellate Body Report, US – Gasoline , pp. 13-14, DSR 1996:I, pp. 12-13. In that dispute, the 
Appellate Body criticized the panel fo r designating what ought to have be en justified under Article XX(g) in 
terms such as "difference in treatment" , "less favourable treatment", or "dis crimination" for the purposes of its 
analysis. (Ibid.)  
1223 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 177. 
1224 Panel Reports, para. 7.624. (emphasis original) 
1225 Panel Reports, para. 7.54. 
1226 Panel Reports, para. 7.56. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Implementing Regulation that must be met in or der for seal products derived from MRM hunts to 
be placed on the EU market.  
5.188.  With respect to the claims under Article I:1 of the GATT 1994, the Panel found that, 
"in terms of its design, structure, and expected operation, the EU Seal Regime detrimentally 
affects the conditions of competition on the market [for seal products] of Canadian and Norwegian 
origin as compared to seal products of Greenlandic origin."1227 As we see it, the existence of the 
permissive component in the form of the IC exception alone cannot confer an advantage to seal 
products of Greenlandic origin, unless it is compared to the treatment of seal products of Canadian 
and Norwegian origin. It is only the combined operation of the permissive aspect of the EU Seal Regime (i.e. the IC exception, which grants market access to seal products of Greenlandic origin), together with the prohibitive aspect of the EU Seal Regime (i.e. the "ban" that restricts market 
access for Canadian and Norwegian seal products), that leads to a finding of de facto 
discrimination under Article I:1.  
5.189.   Similarly, in the context of the claims under Article III:4 of the GATT 1994, we note that 
the Panel's finding that the measure accords treatment to Canadian and Norwegian seal products 
that is less favourable than the treatment accorded to EU seal products was based on an examination of the combined operation of the permissive component of the EU Seal Regime 
(i.e. the MRM exception, which allows the placing on the market of seal products of EU origin), 
together with the prohibitive component (i.e. the "ban" that restricts market access for Canadian and Norwegian seal products). As with the Panel's analysis of the IC exception under Article I:1, 
the permissive aspect of the MRM exception and the requirements thereunder would not have led 
to a finding of violation under Article III:4 in the absence of the "ban". 
5.190.  On the basis of these findings by the Pa nel, we disagree with Norway that the "precise 
aspects" of the EU Seal Regime that violate th e provisions of the GATT 1994 are the IC exception 
and the MRM exception.
1228 At the same time, it may not be accurate to state that the analysis 
under Article XX(a) must focus on the EU Seal Regime "as a whole" insofar as the measure consists of elements other than the prohibitive an d permissive components of the EU Seal Regime. 
In any event, although the Panel stated that its analysis should focus on the EU Seal Regime "as a 
whole", it then made clear that it was referring to the components of the measure embodying the "ban" and the "exceptions".
1229 
5.191.  Norway argues that the Panel erroneousl y relied on the Appellate Body's approach in US – 
Gasoline  to support its approach of using the aspect of the EU Seal Regime not found to be 
WTO-inconsistent (i.e. the ban) to shield from scrutiny the aspects of the EU Seal Regime that were found to be WTO-inconsistent (i.e. the IC and MRM exceptions).
1230 In US – Gasoline , a 
challenge was brought against a measure enacted by the United States Environmental Protection 
Agency (EPA) to ensure that pollution from ga soline combustion did not exceed 1990 levels. The 
measure set out certain "baseline establishment rules" for domestic refiners, blenders, and 
importers of foreign gasoline, but differentiated between more favourable "individual" baselines 
(established by the entity itself) and less favourable "statutory" baselines (established by the EPA). In findings that were not appealed, the panel foun d that most domestic refiners were not required 
to meet the statutory baseline, whereas almost all importers of foreign gasoline were required to 
do so.
1231 The panel thus found that "imported gasoline was treated less favourably than domestic 
gasoline" resulting in an inconsistency under Article III:4 of the GATT 1994.1232  
                                               
1227 Panel Reports, para. 7.597. The Panel thus found that the EU Seal Regime is inconsistent with 
Article I:1 of the GATT 1994 because it does not extend  the same market access advantage on the EU market 
to the complainants' imports as it does to imports originating from Greenland. (Ibid., para. 7.600) 
1228 Norway's appellant's submission, para. 785 (referring to Panel Reports, para. 7.56). We note that, 
in its request for panel establishment, Norway claimed that the EU Seal Regime gave rise to discrimination 
under Articles I:1 and III:4 of the GATT 1994 "[t]hrough  the general prohibition and the exceptions set out 
therein". (Request for the Establishment of a Panel by Norway, p. 2). 
1229 The Panel stated that "it is the EU Seal Regi me as a whole that pursues the European Union's 
identified objective, rather than the exceptions on their own independently from the ban." (Panel Reports, 
para. 7.624) 
1230 Norway's appellant's submission, paras. 795 and 821.  See also ibid., para. 816 (referring to Panel 
Reports, para. 7.620). 
1231 Panel Report,  US – Gasoline , para. 6.15. 
1232 Panel Report,  US – Gasoline , para. 6.16.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.192.  Norway appears to contend that the ba seline establishment rules, which the Appellate 
Body found needed to be justified in US – Gasoline , were like the IC and MRM exceptions of the 
EU Seal Regime in that they constituted the WTO-inconsistent aspect of the measure.1233 We do 
not agree with the analogy drawn by Norway be tween the baseline establishment rules and the 
IC and MRM exceptions. Rather, we see the base line establishment rules as comparable to the 
prohibitive and permissive aspects of the EU Seal Regime, which, taken together, resulted in the differential treatment found to be inconsistent wi th the GATT 1994. The Appellate Body confirmed 
this when it stated, in US – Gasoline , that it had to consider whether the "baseline establishment 
rules, taken as a whole (that is, the provisions relating to establishment of baselines for domestic refiners, along with the provisions relating to baselines for blenders and importers of gasoline)"
1234 
were justified under Article XX(g).  
5.193.  At the same time, we do not consider that the Panel was correct to the extent that it 
suggested that what it considered must be "justified" in this case was limited to the permissive aspects flowing from the IC and MRM exceptions.
1235 Rather, what must be justified is, as we have 
said, both the prohibitive and permissive components of the EU Seal Regime, taken together. 
However, because the Panel, in determining what needed to be "analysed", ultimately considered whether the prohibitive and permissive aspects of th e EU Seal Regime together were "necessary to 
protect public morals" within the meaning of Article XX(a), we find no error in the Panel's 
approach. Accordingly, we reject Norway's claim, and find that the Panel did not err in concluding 
that the analysis under Article XX(a) of th e GATT 1994 should examine the prohibitive and 
permissive aspects of the EU Seal Regime. 
5.3.2.3  The Panel's analysis of the protec tion of public morals under Article XX(a) 
5.194.  We next consider Canada's claim that the Panel failed to establish that there was a risk to 
EU public morals consisting of concerns regarding animal welfare that are particular to seals. 
Canada principally claims that the Panel erred in finding that the EU Seal Regime falls within the 
scope of application of Article XX(a) without identifying a "risk" against which the measure seeks to "protect". According to Canada, the Panel failed  to determine the content of the relevant public 
moral, consisting of the exact standard of right and wrong conduct, in the European Union.
1236 
Relying on the panel report in EC – Asbestos , Canada argues that the use of the phrase "to 
protect" in Article XX(a) requires the identification of a risk to public morals against which the EU Seal Regime seeks to protect. Canada contends that a "risk" to public morals in the European 
Union can be found to exist only if the evidence shows that "the commercial seal hunts targeted by 
the ban exhibit a degree or incidence of animal suff ering that falls below the standard or norm of 
right and wrong conduct in the context of animal  welfare shown to prevail within the [European 
Union]."
1237 In this regard, Canada recalls that it presented evidence to show that "EU policies and 
practices with respect to animal welfare included a tolerance for a certain degree of animal suffering, both for slaughterhouses and wildlife hunts."
1238 In Canada's view, the welfare risks 
associated with commercial seal hunts are "commonplace" in situations that involve the killing of 
animals, especially in the context of wildlife hunts, regardless of whether they take place inside or outside the European Union.
1239 On this basis, Canada argues that the Panel failed to consider 
whether the risks associated with commercial seal hunts "exceeded the accepted level of risk of 
compromised animal welfare, as reflected in the [European Union's] policies and practices in this 
field".1240 Canada also argues that the Panel acted inconsistently with Article 11 of the DSU by 
                                               
1233 Norway's appellant's submission, paras. 818 and 821. 
1234 Appellate Body Report, US – Gasoline , p. 19, DSR 1996:I, p. 17.  
1235 Panel Reports, para. 7.624. 
1236 Canada's appellant's submission, para. 394. 
1237 Canada's appellant's submission, para. 396. 
1238 Canada's appellant's submission, para. 395 (referring to Canada's first written submission to the 
Panel, paras. 146-162 and 198-213; Canada's second written submission to the Panel, paras. 45-49; Canada's opening statement at the second Panel meeting, paras. 44-50; Canada's response to Panel question No. 60, 
paras. 248-250; and the following Exhibits submitted by Canada to the Panel: CDA-29; CDA-34, p. 453; CDA-47; CDA-98; CDA-122; CDA-123, p. 14; CDA-124; JE-08; JE-17; and JE-22, p. 88 (see list of Panel 
Exhibits on pp. 9-10)). 
1239 Canada's appellant's submission, paras. 395 and 396. 
1240 Canada's appellant's submission, para. 397. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  failing to explain why it found the physical environmental conditions for seal hunts different from 
other types of terrestrial wildlife hunts.1241  
5.195.  The European Union takes issue with Canada's assertion that a panel must first ascertain 
the existence of a risk to public morals in order to determine that the measure falls within the 
scope of Article XX(a). According to the European Union, in order for a measure to fall within the 
scope of Article XX(a), it only needs to be shown that the measure is designed  to protect public 
morals.1242 In the European Union's view, Canada's interpretation would introduce a "strict 
consistency test", requiring Members to prove that "the relevant standard of morality is 
consistently applied by them in each and every situation involving similar risks."1243 Given the 
Panel's finding that the objective of the EU Seal Regime is to address the moral concerns of the EU public with regard to the welfare of seals, a finding that has not been appealed by Canada, the 
European Union submits that the Panel was entitled to conclude that the EU Seal Regime is 
designed to protect public morals and, therefore,  falls within the scope of Article XX(a) of the 
GATT 1994.
1244 In response to Canada's claim under Article 11 of the DSU challenging the Panel's 
assessment of evidence relating to terrestrial wi ldlife hunts, the European Union points out that 
the Panel gave detailed reasons for its findings on the uniqueness and distinctiveness of the welfare risks associated with seal hunts, and that these have not been challenged by Canada on 
appeal.
1245 
5.196.  In our view, Canada's arguments are built around the notion of an identifiable "risk" that it 
finds implicit in the phrase "to protect" in Article XX(a). According to Canada, identifying such a "risk" requires the identification of a precise standard of animal welfare in the European Union, and 
an assessment of the incidence of suffering in commercial seal hunts against that standard. 
Central to Canada's position is its contention that the animal welfare risks in commercial seal hunts are not unique to those types of hunts, and can be found in all forms of wildlife hunts, including 
those conducted in the European Union.
1246 In other words, Canada argues that the Panel, upon 
proper consideration of the evidence, should have concluded that the animal welfare risks associated with seal hunts are not any higher than the animal welfare risks associated with 
slaughterhouses and other terrestrial wildlife hunts, such as deer hunts, in the European Union. In 
the absence of a higher risk associated with seal hunts, Canada asserts that the European Union cannot justify its measure on public moral grounds.  
5.197.  Canada's claim asks us to consider whether the use of the phrase "to protect" in 
Article XX(a) requires a panel to identify a risk against which the measure that is to be justified 
seeks to protect. The ordinary meaning of the ve rb "protect" includes "defend or guard against 
injury or danger; shield from attack or assault; support, assist …; keep safe, take care of …".
1247 
The meaning of "to protect" in a given provision also requires taking into account the context in 
which the phrase is used. The phrase "to protect" is used in three subparagraphs of Article XX that 
concern the "protection" of different non-economic interests and concerns.1248 In EC – Asbestos , in 
addressing the term "to protect" in Article XX(b), the panel noted that "the notion of 'protection' … 
impl[ies] the existence of a health risk".1249 We note that Article XX(b) focuses on the protection of 
"human, animal or plant life or health". It may be that the protection of human, animal, or plant life or health implies a particular focus on the protection from or against  certain dangers or risks. 
                                               
1241 Canada's appellant's submission, paras. 401 and 402. 
1242 European Union's appellee's submission, paras. 343 and 344 (referring to Appellate Body Report, 
Korea – Various Measures on Beef , para. 157).  
1243 European Union's appellee's submission, para. 347.  
1244 European Union's appellee's submission, paras. 345 and 346. 
1245 European Union's appellee's submission, paras. 355 and 356 (referring to Panel Reports, 
paras. 7.187, 7.188, 7.190, 7.204, 7.209, 7.214, 7.215, 7.217, 7.218, 7.221-7.223, and fns 300 and 339 to paras. 7.206 and 7.218, respectively).  
1246 Canada's appellant's submission, para. 369. 
1247 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2376. 
1248 Article XX(a) talks of measures "necessary to prot ect public morals". Article XX(b) is concerned with 
measures "necessary to protect human, animal or plant life or health". Fina lly, Article XX(f) talks of measures 
"imposed for the protection of national treasures of artistic, historic or  archaeological value". 
1249 Panel Report, EC – Asbestos , para. 8.170. (emphasis omitted) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  For example, the concepts of "risk" and "protectio n" are expressly reflected in the SPS Agreement, 
which elaborates rules for the application of Article XX(b).1250  
5.198.  However, the notion of risk in the context of Article XX(b) is difficult to reconcile with the 
subject matter of protection under Article XX(a), namely, public morals. While the focus on the 
dangers or risks to human, animal, or plant life or health in the context of Article XX(b) may lend 
itself to scientific or other methods of inquiry,  such risk-assessment methods do not appear to be 
of much assistance or relevance in identifying and assessing public morals. We therefore do not 
consider that the term "to protect", when used in relation to "public morals" under Article XX(a), 
required the Panel, as Canada contends, to identi fy the existence of a risk to EU public moral 
concerns regarding seal welfare.  
5.199.  For this reason, we also have difficulty accepting Canada's argument that, for the purposes 
of an analysis under Article XX(a), a panel is requ ired to identify the exact content of the public 
morals standard at issue. The Panel accepted the definition of "public morals" developed by the panel in US – Gambling , according to which "the term 'public morals' denotes 'standards of right 
and wrong conduct maintained by or on behalf of a community or nation'".
1251 The Panel also 
referred to the reasoning developed by the panel in US – Gambling that the content of public 
morals can be characterized by a degree of variation, and that, for this reason, Members should be 
given some scope to define and apply for themselves the concept of public morals according to 
their own systems and scales of values.1252 Canada does not challenge these propositions on 
appeal. In addition, we note that, although Canada  indirectly questions the existence of EU public 
moral concerns regarding seal welfare by contending that the Panel ought to have considered the 
similarity of animal welfare risks in both terrestrial wildlife hunts and seal hunts, Canada does not 
directly challenge the Panel's finding that there are public moral concerns in relation to seal welfare in the European Union.  
5.200.  Finally, by suggesting that the European Union must recognize the same level of animal 
welfare risk in seal hunts as it does in its slaughterhouses and terrestrial wildlife hunts, Canada appears to argue that a responding Member must regulate similar public moral concerns in similar 
ways for the purposes of satisfying the requiremen t "to protect" public morals under Article XX(a). 
In this regard, we note that the panel in US – Gambling  underscored that Members have the right 
to determine the level of protection that they consider appropriate
1253, which suggests that 
Members may set different levels of protection even when responding to similar interests of moral 
concern. Even if Canada were correct that the European Union has the same moral concerns 
regarding seal welfare and the welfare of other animals, and must recognize the same level of 
animal welfare risk in seal hunts as it does in its slaughterhouses and terrestrial wildlife hunts, we 
                                               
1250 The preamble to the SPS Agreement states, in rele vant part, "Desiring therefore to elaborate rules 
for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX (b)." Article 5.1 of the SPS Agreement concerns the 
"assessment of risk", taking into account risk assessme nt techniques developed by the relevant international 
organizations. Article 5.2 further requ ires that, in the assessment of risks, Members shall take into account, 
inter alia , relevant scientific evidence. Article 5.3 draws a link between "protection" and "risk" by stating that 
"[i]n assessing the risk to animal or plant life or health and determining the measure to be applied for 
achieving the appropriate level of sanitary or phytosanit ary protection from such risk, Members shall take into 
account ….". (SPS Agreement, Article 5.3) Article 5.3 th erefore relates the concepts of "protection" and "risk" 
by using the phrase "pro tection from such risk". 
1251 Panel Reports, para. 7.380 (quoting Panel Report, US – Gambling , para. 6.465). 
1252 Panel Reports, para. 7.380 (referring to Panel Report, US – Gambling , para. 6.461). 
1253 Panel Report, US – Gambling , para. 6.461 (referring to Appellate Body Reports, Korea – Various 
Measures on Beef , para. 176; and EC – Asbestos , para. 168). We note that the panel in EC – Asbestos  took a 
similar position in the context of Article XX(b) when it  stated that, although it must examine the particular 
health risk posed by chrysotile asbe stos fibres, it was not required to assess France's choice to protect its 
population against that risk. (Panel Report, EC – Asbestos , paras. 8.170 and 8.171) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  do not consider that the European Union was required by Article XX(a), as Canada suggests, to 
address such public moral concerns in the same way.1254 
5.201.  For these reasons, we reject Canada's argument that the Panel was required to assess 
whether the seal welfare risks associated with seal hunts exceed the level of animal welfare risks 
accepted by the European Union in other situations such as terrestrial wildlife hunts. We therefore 
also do not consider it necessary to address Canada's claim under Article 11 of the DSU regarding the same issue. Accordingly, we find that the Pane l did not err in concluding that the objective of 
the EU Seal Regime falls within the scope of Article XX(a) of the GATT 1994.1255 
5.202.  In addition, Canada claims that the Panel "misinterpreted"1256 Canada's argument and 
therefore erred under Article 11 of the DSU in finding that Canada did not dispute the importance of public moral concerns regarding the protection of animal welfare. Canada points out that, while 
it had acknowledged that "the protection of publ ic morals is, in principle, a highly important 
interest or value"
1257, Canada "did not agree that the specific public moral concern in issue was 
considered important or presented a serious risk".1258 A l t h o u g h  C a n a d a  r a i s e s  t h i s  c l a i m  i n  t h e  
context of the Panel's assessment of the importan ce of the objective in a necessity analysis, 
Canada appears again to be advancing its central contention that the objective of the EU Seal 
Regime is not as important as the European Union asserts. Canada maintained before the Panel 
that there are "reasons to doubt the seriousness of  the harm that might be expected to arise from 
the presence of seal products on the [EU] market".1259  
5.203.  The Panel noted the European Union's position that moral concern regarding the protection 
of animals is a value of high importance in the European Union. The Panel then stated:  
"We consider, and the parties do not dispute, that the protection of such public moral concerns is 
indeed an important value or interest."1260 As we see it, the Panel was making a rather general 
statement about the importance of public moral concerns regarding animal welfare.1261 Moreover, 
the Panel appears to have reached this conclusion on the basis of its own assessment, and 
therefore did not rely solely on the position it attributed to the parties. We further note that the Panel also alluded in this section to its prior assessment of the risks of non-fulfilment under 
Article 2.2 of the TBT Agreement
1262, where the Panel had concluded that it did not consider that 
"the level of protection actually achieved by the measure is as high as the European Union claims the measure initially aimed to achieve", and that it would "bear this in mind" in its assessment of the alternative measure.
1263 Therefore, while the Panel did no t provide much elaboration of its 
assessment of the importance of the objective in the context of its analysis under Article XX(a), we 
do not consider that the general statement to which Canada refers shows that its position was somehow misinterpreted or misrepresented by the Panel. Canada's views about the scope and 
                                               
1254 The drafters of the WTO agreements have elsewhere explicitly addressed the question of 
consistency in the setting of levels of protection. Arti cle 5.5 of the SPS Agreement reads, in relevant part: 
With the objective of achieving consistency in th e application of the concept of appropriate level 
of sanitary or phytosanitary protection against risks to human life or health, or to animal and 
plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it 
considers to be appropriate in different situations, if such distinctions result in discrimination or a 
disguised restriction on international trade. 
1255 Panel Reports, para. 7.631. 
1256 Canada's appellant's submission, para. 431 (referring to Panel Reports, para. 7.632). 
1257 Canada's appellant's submission, para. 432 (quoti ng Canada's second written submission to the 
Panel, para. 176). 
1258 Canada's appellant's submission, para. 434 (referring to Canada's second written submission to the 
Panel, para. 183). 
1259 Canada's appellant's submission, para. 433 (quoti ng Canada's second written submission to the 
Panel, para. 179). 
1260 Panel Reports, para. 7.632 (referring to Panel Report, China – Publications and Audiovisual 
Products , para. 7.817). 
1261 The Panel also referred to th e statement by the panel in China – Publications and Audiovisual 
Products that the protection of public morals "ranks among the most important values or interests pursued by 
members as a matter of public policy". (Panel Reports, fn 972 to 7.632 (quoting Panel Report, China – 
Publications and Audiovisual Products , para. 7.817)) 
1262 Panel Reports, fn 971 to para. 7.632. 
1263 Panel Reports, para. 7.466 (referring to European Union's first written submission to the Panel, 
para. 39). As we noted above at paragraph 5.172, the Panel relied on its findings under Article 2.2 of the 
TBT Agreement in concluding that the EU Seal Regime was "necessary" within the meaning of Article XX(a) of the GATT 1994. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  content of EU public moral concerns at issue in th is case have been amply reviewed by the Panel in 
these disputes and now on appeal. We therefore reject this claim under Article 11 of the DSU.  
5.3.2.4  The Panel's analysis of the contributi on of the EU Seal Regime to the objective 
5.204.  Next, we address Canada's and Norway's claims that the Panel erred in finding that the 
EU Seal Regime is "necessary" within the meanin g of Article XX(a) of the GATT 1994. In analysing 
"necessity" under Article XX(a), the Panel considered that "an analysis of a measure's contribution to an objective under Article 2.2 of the TBT Agreement is also relevant to such analysis under 
Article XX of the GATT 1994."
1264 The Panel thus decided that it would "refer back to [its] relevant 
analysis under Article 2.2 of the TBT Agreement to  the extent necessary for the analysis of the 
measure's contribution under Article XX(a) of the GATT 1994".1265 The Panel then recalled its 
earlier findings in the context of its analysis und er Article 2.2 of the TBT Agreement in addressing 
the elements of the legal standard of "nec essity" under Article XX(a) of the GATT 1994.1266 The 
Panel ultimately concluded that the EU Seal Regime is "necessary" within the meaning of Article XX(a).
1267 
5.205.  We note that, in assessing the appeals by Canada and Norway, there are aspects of the 
Panel's necessity analysis that have not been appealed and upon which we, therefore, need not rule.
1268 For instance, the Panel found in its analysis under Article 2.2 of the TBT Agreement that 
the EU Seal Regime "considered in its entirety, is trade restrictive because it does 'hav[e] a 
limiting effect on trade' by prohibiting certain seal products, including those imported from Canada and Norway, from accessing the EU market".
1269 The Panel also referred to the trade-
restrictiveness of the EU Seal Regime in the context of its analysis under Article XX(a).1270 The 
Panel's analysis and findings regarding trade-restrictiveness are not appealed by Canada or 
Norway, either in the context of its analysis  under Article 2.2 of the TBT Agreement or 
Article XX(a) of the GATT 1994.1271  
5.206.  Rather, the complainants challenge on appeal the Panel's analysis and findings in respect 
of the contribution that the EU Seal Regime makes to its objective, and in respect of the comparison of the EU Seal Regime with a less trade-restrictive alternative measure. In this 
section, we address the Panel's contribution analysis. As noted above, because the Panel's analysis 
under Article XX(a) relied on findings it made in the context of Article 2.2 of the TBT Agreement, Canada and Norway also incorporate by reference many of the arguments made in the context of 
their Article 2.2 claims in their appeals of the Panel's findings under Article XX(a).
1272 
5.3.2.4.1  Whether the Panel was required to  show that the EU Seal Regime makes a 
"material" contribution to its objective 
5.207.  Canada and Norway argue that the Panel e rred by focusing only on the prohibitive aspect 
of the measure, i.e. the "ban", when determining whether the EU Seal Regime made a "material" 
contribution to its objective of addressing EU  public moral concerns regarding seal welfare.1273 
Instead, they argue that, because the Panel sought to determine whether the EU Seal Regime "as 
a whole" was provisionally justified under Article XX(a), it was required to consider whether the 
contribution of the measure "as a whole", and not just the "ban", was "material".1274 In addition, 
                                               
1264 Panel Reports, para. 7.634. 
1265 Panel Reports, para. 7.634. 
1266 Panel Reports, paras. 7.637-7.639. 
1267 Panel Reports, para. 7.639. 
1268 We are mindful that there are differences in the text of Article 2.2 of the TBT Agreement and 
Article XX(a) of the GATT 1994 that may have a bearin g on the interpretation of these provisions.  
1269 Panel Reports, para. 7.426 (referring to European Union's first written submission to the Panel, 
paras. 357 and 586; and Appellate Body Reports, US – Tuna II (Mexico) , para. 319; and  US – COOL , 
para. 375). In referring to the prohibition on the import of seal products "including those imported from Canada and Norway", the Panel may have been referring no t only to the restrictive impact of the ban, but also 
to any restrictive discriminatory impact caused by trad e diversion between imports of seal products originating 
in different countries. 
1270 Panel Reports, para. 7.636. 
1271 Canada's and Norway's responses to  questioning at the oral hearing. 
1272 See supra , para. 5.172 (referring to Panel Reports, paras. 7.638 and 7.639). 
1273 Canada's appellant's submission, para. 410 and 421; Norway's appellant's submission, para. 854. 
1274 Canada's appellant's submission, para. 420; Norway's appellant's submission, para. 855. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Canada and Norway contend that the Panel erred in finding that the EU Seal Regime made a 
"material" contribution. According to Norway, the Panel's findings in the context of its analysis under Article 2.2 of TBT Agreement do not demonstrate that the EU Seal Regime makes a contribution, either "to a certain extent", as found by the Panel, or "materially", as required under 
Article XX(a), to protecting EU public morals.
1275 Canada similarly asserts that the Panel erred in 
characterizing "some contribution" and "makes a contribution to" the identified objective as equivalent to making a "material" contribution.
1276 
5.208.  The European Union submits that the ar guments of Canada and Norway are based on a 
misreading of the Appellate Body report in Brazil – Retreaded Tyres .1277 The European Union 
considers that, in that case, the Appellate Body left open "the possibility that, exceptionally, an import ban may be considered necessary even when the contribution is not 'material'".
1278 
According to the European Union, following Canada 's and Norway's approach would contradict the 
Appellate Body's approach in US – COOL , in the context of Article 2.2 of the TBT Agreement, in 
which "the Appellate Body rebuked the panel for having considered it necessary for the 
COOL measure to meet some minimum level of fulfilment".1279 In any event, the European Union 
maintains that the Appellate Body in Brazil – Retreaded Tyres held that "a contribution should be 
deemed 'material' provided that it is not 'marginal or insignificant'".1280 The European Union claims 
that both the Panel's findings and the evidence on record "demonstrate that the contribution of the 
E U  S e a l  R e g i m e  i s  c l e a r l y  m o r e  t h a n  ' m a r g i n a l  o r  insignificant', even if it cannot be quantified 
precisely".1281 
5.209.  We first address the question of whether the Panel was required to determine whether the 
contribution of the measure was "material". The Panel stated that "the contribution made by the 
'ban' to the identified objective must be shown to be at least material given the extent of its trade-restrictiveness."
1282 Drawing on the Appellate Body's report in Brazil – Retreaded Tyres , the 
Panel stated that "when a measure produces restrictive effects on international trade as severe as 
those resulting from an import ban, it would be difficult for a panel to find that measure necessary unless it is satisfied that the measure is apt to make a material  contribution to the achievement of 
its objective".
1283 In a footnote, the Panel added that, in order for a measure to be considered 
necessary within the meaning of Article XX(a), the measure's contribution to its objective must reach a "certain minimum threshold such as a material or significant contribution".
1284 By contrast, 
the Panel stated that no such threshold degree of  contribution exists under Article 2.2 of the 
TBT Agreement, which only requires an assessment of the degree of contribution of a measure.1285  
5.210.  In Brazil – Retreaded Tyres , the Appellate Body identified certain principles in evaluating 
the contribution of a measure in the contex t of a necessity analysis under Article XX: 
The selection of a methodology to assess a measure's contribution is a function of the 
nature of the risk, the objective pursued, and the level of protection sought. It ultimately also depends on the nature, quantity, and quality of evidence existing at 
the time the analysis is made. Because the Panel, as the trier of the facts, is in a 
position to evaluate these circumstances, it should enjoy a certain latitude in designing the appropriate methodology to use and deciding how to structure or organize the analysis of the contribution of the measure at issue to the realization of 
the ends pursued by it. This latitude is not, however, boundless. Indeed, a panel must 
analyze the contribution of the measure at i ssue to the realization of the ends pursued 
                                               
1275 Norway's appellant's submission, para. 861. 
1276 Canada's appellant's submission, para. 430. 
1277 European Union's appellee's submission, paras. 421 and 422. 
1278 European Union's appellee's submission, para. 423. 
1279 European Union's appellee's submission, para. 424. 
1280 European Union's appellee's submission, para. 429. 
1281 European Union's appellee's submission, para. 429. 
1282 Panel Reports, para. 7.636.  
1283 Panel Reports, para. 7.635 (referring to Appellate Body Report, Brazil – Retreaded Tyres , paras. 150 
and 151). (emphasis original) 
1284 Panel Reports, fn 977 to para. 7.635. (emphasis original) 
1285 Panel Reports, fn 977 to para. 7.635. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  by it in accordance with the requirem ents of Article XX of the GATT 1994 and 
Article 11 of the DSU.1286 
5.211.  The Appellate Body thus confirmed that a panel's approach is appropriately guided by the 
particular circumstances of the case and the evidence  at issue, and that a panel will have certain, 
but not unbounded, discretion is designing that approach. The Appellate Body further confirmed 
that a panel's contribution analysis "can be done either in quantitative or in qualitative terms".1287  
5.212.  The measure at issue in Brazil – Retreaded Tyres , namely, a ban on imports of retreaded 
tyres, was particular in at least two respects. First, the import ban formed part of a comprehensive 
policy designed and implemented by Brazil to de al with the public health and environmental 
consequences of waste tyres. As the Appellate Body recognized, "certain complex public health or environmental problems may be tackled only with a comprehensive policy comprising a multiplicity 
of interacting measures".
1288 Consequently, the Appellate Body noted, it may prove difficult in the 
short term "to isolate the contribution to public health or environmental objectives of one specific measure from those attributable to the other measures that are part of the same comprehensive 
policy".
1289 Second, the Appellate Body considered that the results obtained from, for example, 
certain preventive actions to reduce the incidence of diseases, "can only be evaluated with the benefit of time".
1290 As the Appellate Body explained, the broader regulatory scheme was designed 
to induce changes in the practices and behaviour of commercial actors in order to reduce the 
number of waste tyres generated and, thereby, to  reduce the risks to human, animal, and plant 
life and health arising from the accumulation of waste tyres.1291  
5.213.  The Appellate Body in Brazil – Retreaded Tyres  was thus confronted with the particular 
challenge of assessing the contribution of a meas ure that formed part of a broader policy scheme, 
and that was not yet having, or likely itself to produce, an immediately discernible impact on its 
objective. The Appellate Body thus sought to determine whether the measure was "apt to make a 
material contribution" to its objective.1292 This reflected the Appellate Body's recognition that, 
notwithstanding the particular features of the measure at issue in that dispute, it was nevertheless possible to determine the level of contribution to be made by the measure, by assessing the extent 
to which it was apt to do so  at some point in the future. We further note that the Appellate Body 
was careful not to suggest that its approach in that dispute was requiring the use of a generally 
applicable threshold for a contribution analysis. Rather, the Appellate Body was making the more limited statement that "when a measure produces restrictive effects on international trade as 
severe as those resulting from an import ban, it appears to us that it would be difficult  for a panel 
to find that measure necessary unless it is satisfied that the measure is apt to make a material 
contribution  to the achievement of its objective".
1293 We therefore do not see that the Appellate 
Body's approach in Brazil – Retreaded Tyres  sets out a generally applicable standard requiring the 
use of a pre-determined threshold of contribution  in analysing the necessity of a measure under 
Article XX of the GATT 1994. 
5.214.  This understanding is supported, in our view, by the other dimensions of a necessity 
analysis. As we noted, the Appellate Body has explained in several disputes that a necessity analysis involves a process of "weighing and balancing" a series of factors, including the importance of the objective, the contribution  of the measure to that objective, and the 
trade-restrictiveness of the measure.
1294 The Appellate Body has further explained that, in most 
cases, a comparison between the challenged meas ure and possible alternatives should then be 
undertaken.1295 As the Appellate Body has stated, "[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, 
                                               
1286 Appellate Body Report, Brazil – Retreaded Tyres , para. 145. 
1287 Appellate Body Report, Brazil – Retreaded Tyres , para. 146. 
1288 Appellate Body Report, Brazil – Retreaded Tyres , para. 151. 
1289 Appellate Body Report, Brazil – Retreaded Tyres , para. 151. 
1290 Appellate Body Report, Brazil – Retreaded Tyres , para. 151. The Appellate Body accepted that a 
measure could be considered "necessary" even if th e contribution of the measure "is not immediately 
observable". (Ibid., para. 151) 
1291 Appellate Body Report, Brazil – Retreaded Tyres , para. 154.  
1292 Appellate Body Report, Brazil – Retreaded Tyres , para. 150.  
1293 Appellate Body Report, Brazil – Retreaded Tyres , para. 150. (emphasis added) 
1294 See supra , para. 5.169. 
1295 See supra , para. 5.169. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  WTO-consistent measure is 'reasonably available'".1296 Such an analysis, the Appellate Body has 
observed, involves a "holistic" weighing and balancing exercise "that involves putting all the variables of the equation together and evaluating  them in relation to each other after having 
examined them individually, in order to reach an overall judgement".
1297  
5.215.  A measure's contribution is thus only one component of the necessity calculus under 
Article XX. This means that whether a measure is  "necessary" cannot be determined by the level 
of contribution alone, but will depend on the manner in which the other factors of the necessity 
analysis, including a consideration of potential alternative measures, inform the analysis. It will 
also depend on the nature, quantity, and quality of evidence, and whether a panel's analysis is 
performed in quantitative or qualitative terms.1298 Indeed, the very utility of examining the 
interaction between the various factors of the necessity analysis, and conducting a comparison 
with potential alternative measures, is that it provides a means of testing these factors as part of a 
holistic weighing and balancing exercise, whether quantitative or qualitative in nature.1299 The 
flexibility of such an exercise does not allow for the setting of pre-determined thresholds in respect 
of any particular factor. If the level of contribution alone cannot determine whether a measure is 
necessary or not, we do not see that mandating in advance a pre-determined threshold level of 
contribution would be instructive or warranted in a necessity analysis.1300 The Appellate Body's 
approach in Brazil – Retreaded Tyres  is consonant with an assessment of the contribution of a 
measure as one element of a holistic necessity analys is under Article XX. It is also consistent with 
our understanding that the EU Seal Regime, even if it were highly trade-restrictive in nature, could 
still be found to be "necessary" within the mean ing of Article XX(a), subject to the result of a 
weighing and balancing exercise under the specific circumstances of the case and in the light of 
the particular nature of the measure at issue. 
5.216.  For these reasons, we reject the contention of Canada and Norway that the Panel was 
required to apply a standard of "materiality" as a generally applicable pre-determined threshold in 
its contribution analysis. We also consider that the Panel erred to the extent that it relied on such a standard in these portions of its analysis.
1301  
5.217.  The Panel then proceeded to examine the contribution of the EU Seal Regime in the 
context of Article XX(a) by recalling, and relying upon, its analysis conducted in the context of Article 2.2 of the TBT Agreement.
1302 As we have explained, it is evident from the Panel's analysis 
that it was examining the contribution of both the prohibitive and permissive aspects of the 
EU Seal Regime.1303 Because the Panel properly conducted its contribution analysis in respect of 
both of these aspects of the measure, we need not rule on Canada's and Norway's claims that the Panel also erred in focusing exclusively on the ban, and not the ban together with the exceptions, 
in this part of its analysis. We turn now to address Canada's and Norway's appeals of the Panel's 
                                               
1296 Appellate Body Report, US – Gambling , para. 307 (referring to Appellate Body Report, Korea – 
Various Measures on Beef , para. 166). 
1297 Appellate Body Report, Brazil – Retreaded Tyres , para. 182. 
1298 Appellate Body Report, Brazil – Retreaded Tyres , paras. 145 and 146. 
1299 While there may be circumstances in which a we ighing and balancing exercise would not require 
that a panel proceed to evaluate alternative measures (see supra , fn 1182), we also do not consider that such 
an exercise mandates a preliminary determination of the necessity of the challenged measure before proceeding to assess those alternativ es. (See Appellate  Body Report, US – Gambling , paras. 306 and 307. See 
also Appellate Body Reports, Brazil – Retreaded Tyres , paras. 156 and 178; and China – Publications and 
Audiovisual Products , para. 241 (stating that if a panel reaches a preliminary conclusion that a measure is 
necessary, this result must be confirmed by comparin g the measure with possible alternatives)) We therefore 
disagree with Canada's assertion that a preliminary determinatio n of necessity is required before proceeding to 
compare the challenged measure with possible altern atives. (Canada's appellant's submission, paras. 310 
and 318) 
1300 We also note the Appellate Body 's statements that the term "n ecessary" refers to a range of 
degrees of necessity, but that a "necessary" measure wo uld be located significantly closer to the pole of 
"indispensable" than to the opposite pole of simply "making a contribution to". (Appellate Body Report, Korea – 
Various Measures on Beef , para. 161; Appellate Body Report, US – Gambling , para. 310) It is conceptually 
useful to distinguish the degree of contribution  that informs the weighing an d balancing exercise, from the 
question of where on the continuum the necessity  of that measure lies following such a weighing and balancing 
exercise. The Appellate Body's above statements can be  understood in this context to refer to the latter 
question. 
1301 Panel Reports, paras. 7.635-7.637. 
1302 See supra , para. 5.172 (referring to Panel Reports, paras. 7.638 and 7.639). 
1303 See supra , para. 5.193. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  conclusions under Article XX(a) on the basis of their contentions that the Panel erred in the 
contribution analysis it conducted in the co ntext of Article 2.2 of the TBT Agreement. 
5.3.2.4.2  Whether the Panel properly ar ticulated its findings on contribution 
5.218.  In the context of its analysis under Arti cle XX(a), the Panel recalled its finding that the 
EU Seal Regime "contributed to a certain extent to  its objective of addressing the EU public moral 
concerns on seal welfare".1304 This was based on the Panel's prior conclusion in the context of 
Article 2.2 of the TBT Agreement that "the EU Seal Regime is capable of making and does make 
some contribution to its stated objective of addressing the public moral concerns".1305 The 
complainants do not take issue with the Panel's characterization of the legal standard for determining contribution, but rather challenge the Panel's application of that legal standard to the facts of this case.  
5.219.  Canada and Norway argue that the Panel failed  to articulate the "degree" or "extent" of the 
contribution made by the prohibitive and permissi ve parts of the EU Seal Regime. This criticism 
has several facets. The complainants contend that the Panel reached indeterminate conclusions 
regarding the positive and negative contributions made by different elements of the measure, and 
that the Panel therefore had no basis to reach, and in fact did not reach, an overall conclusion on 
the net contribution of the measure.
1306 The complainants also fault the Panel for reaching findings 
indicating a capability  or possibility  of a contribution, rather than the actual  contribution.1307 The 
complainants argue that the Panel failed to make "clear and precise" findings regarding the contribution of the EU Seal Regime to the identified  objective, and that such findings were required 
in order to establish the benchmark against which alternative measures could be compared.
1308 
Norway also challenges aspects of the Panel's analysis under Article 11 of the DSU.1309  
5.220.  The European Union submits that the complainants' arguments are "unfounded".1310 
According to the European Union, the WTO agreements do not prescribe the manner in which a 
measure's contribution to the fulfilment of its ob jective should be assessed, nor how specific that 
assessment should be. The European Union maintains that the Panel's analysis is in line with WTO jurisprudence, and that, because the quantitative evidence available did not permit a precise 
quantification of the contribution, "the Panel had no alternative but to resort to qualitative 
reasoning".
1311 The European Union further contends that the Panel's findings were no less specific 
than those reached by other panels examining a necessity test.1312 
5.221.  We recall that, in Brazil – Retreaded Tyres , the Appellate Body stated that a panel enjoys 
certain latitude in setting out its approach to determine contribution; that such an approach may 
be performed in qualitative or quantitative terms; and that it ultimately depends on the nature, quantity, and quality of evidence existing at the time the analysis is made.
1313 In the present 
disputes, the Panel opted for a qualitative analysis that focused mainly on the design and expected 
operation of the measure. During the panel proceedings, the Panel had only limited information on how certain aspects of the measure would operate in practice. While the Panel could perhaps more 
easily perceive how the prohibitive aspect of the measure would operate in practice, the 
permissive aspects were still in a relatively nascent stage of implementation. By the time the Panel 
                                               
1304 Panel Reports, para. 7.638. 
1305 Panel Reports, para. 7.460. 
1306 See e.g. Canada's appellant's submission, pa ra. 150; and Norway's appellant's submission, 
para. 315. 
1307 See e.g. Canada's appellant's submission, pa ra. 166; and Norway's appellant's submission, 
para. 284. 
1308 See e.g. Canada's appellant's submission, pa ra. 158; and Norway's appellant's submission, 
para. 257. 
1309 Norway's appellant's submission, paras. 398-409. 
1310 European Union's appellee's submission, para. 165. 
1311 European Union's appellee's submission, para. 170. 
1312 European Union's appellee's submission, paras. 171-175 (referring to Appellate Body Reports, 
Brazil – Retreaded Tyres ; US – Tuna II (Mexico) ; US – Gambling ; and US – COOL ). 
1313 Appellate Body Report, Brazil – Retreaded Tyres , paras. 145 and 146. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  held its second substantive meeting in April 2013, Greenlandic and Swedish recognized bodies had 
only recently been approved for the issuance of attesting documentation under the exceptions.1314  
5.222.  Moreover, although the parties had su bmitted substantial evidence regarding the 
EU market for seal products, that information appears to have been incomplete and subject to a 
number of limitations. As the Panel remarked, the "data provided by the parties are incomplete in 
terms of product types and import/export countries".1315 For example, EU trade data was available 
only for those categories of seal products for which the tariff classification consisted exclusively of 
seal or seal-containing products.1316 The EU trade data therefore did not reflect imports of seal 
products other than seal skins, and did not reflec t imports of raw seal skins after 2006, when the 
European Union no longer maintained a separate tariff classification covering only raw seal skins.
1317 These limitations were particularly significant given that the Panel recognized that seal 
skins have historically constituted the majority of traded seal products.1318 In the light of these 
factors, the Panel stated that it was "not in a position to draw any concrete conclusions" based on the data before it.
1319 Additionally, the Panel stated that, although the data "show a general trend 
that seal product imports from the complainants into the EU market have decreased significantly 
over the last few years"1320, "the extent of the connection between the ban aspect of the measure 
and the reduction in the number of seals killed is not clearly discernible".1321 Therefore, we do not 
consider that the Panel's decision to focus largely on a qualitative assessment of the measure was 
improper.  
5.223.  In analysing the contribution made by the EU Seal Regime to the first aspect of the 
objective – i.e. addressing public moral concerns relating to the EU public's participation as 
consumers in the market for products derived from inhumanely killed seals – the Panel focused 
exclusively on an assessment of the measure itself. Indeed, in its intermediate finding, the Panel expressly stated that its conclusion was based on the "design and expected operation" of the 
measure.
1322 This approach would also seem to have implications for the way in which the Panel 
framed its findings. The complainants argue that, by concluding that the ban was "capable of making a contribution"
1323, the Panel was identifying a possible, instead of an actual, contribution. 
We recognize that the Panel's language could be read to suggest that the Panel found only a 
possibility that the ban contributed to the object ive. On the other hand, because the Panel made 
clear that it was focusing on the design and expected operation of the measure, we understand the Panel to have been projecting what the impact of the prohibitive aspect of the measure would be.  
5.224.  This approach bears similarities with the analysis in Brazil – Retreaded Tyres , where the 
panel concluded that the measure at issue was "capable of making a contribution to the objective".
1324 The European Communities argued on appe al that this represented an erroneous 
legal standard, and that the panel should instead have assessed the actual contribution of the 
measure to its stated objective, and measured the importance of the contribution to the objective achieved by the measure.
1325 The Appellate Body ultimately dismissed this ground of appeal.1326 
As we noted, the Appellate Body further found  that the impact of the measure was not yet 
realized, but that it was "apt to" induce change s over time in the behaviour and practices of 
                                               
1314 Recognized bodies were approved by the Co mmission for seal products from Sweden on 
18 December 2012, and for Greenland on 25 April 2013.  (Panel Reports, fns 220 and 221 to paras. 7.164 
and 7.166, respectively) The Panel also noted that, prior to the Greenlandic entity obtaining recognized body 
status, Danish customs authorities had processed imports based on certificates issued by Greenlandic authorities. (Ibid., fn 220 to para. 7.164, and para. 7.316) 
1315 Panel Reports, para. 7.456 and fn 729 thereto. 
1316 Panel Reports, fn 729 to para. 7.456. 
1317 Panel Reports, fn 729 to para. 7.456. The Panel also noted that Canada does not maintain discrete 
data for exports of tanned skins because such products are combined with those derived from other animals. 
(Ibid.) 
1318 Panel Reports, fn 730 to para. 7.456. 
1319 Panel Reports, para. 7.456. 
1320 Panel Reports, para. 7.456. (fn omitted) 
1321 Panel Reports, para. 7.458. 
1322 Panel Reports, para. 7.448. 
1323 Panel Reports, para. 7.448. 
1324 Appellate Body Report, Brazil – Retreaded Tyres , para. 136 (quoting Panel Report, Brazil – 
Retreaded Tyres , para. 7.148). 
1325 Appellate Body Report, Brazil – Retreaded Tyres , para. 137.  
1326 Appellate Body Report, Brazil – Retreaded Tyres , para. 155. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  commercial actors in a manner contributing to the objective.1327 Such changes, however, were not 
measurable at the time of the proceedings, at least not in quantifiable terms. We therefore do not see that a panel falls into error by projecting what contribution will be brought about by the 
measure. 
5.225.  With regard to the second aspect of the objective – i.e. addressing public moral concerns 
relating to the number of inhumanely killed seals – the Panel concluded that the prohibitive aspect 
of the EU Seal Regime "makes a contribution" to reducing the demand for seal products within the 
European Union, and contributes "to a certain extent" to reducing global demand.
1328 The Panel 
then further stated that its observation regarding the downward trend in seal products trade also suggests that the measure "may have co ntributed" to reducing EU demand.
1329 W e  n o t e  t h a t ,  
although this further characterization conveys a less certain conclusion with respect to 
contribution, it pertains to the Panel's review of data about which it signalled its prior reservations 
that we referred to above. It is thus not surpri sing that the Panel conveyed a qualified conclusion 
with respect to this additional, quantitative element of its analysis. 
5.226.  The complainants also criticize the Panel's overall conclusion that "the EU Seal Regime is 
capable of making and does make some contribution to its stated objective of addressing the public moral concerns."
1330 Again, the complainants consider that this finding is not sufficiently 
clear and precise. We read this sentence to reflect the combination of the Panel's assessment of 
the contribution in respect of both aspects of the objective. Since the Panel concluded that the 
EU Seal Regime was "capable of making a contribution" to addressing public moral concerns relating to the EU public's participation as consumers in the market for products derived from 
inhumanely killed seals, and "makes a contribution " to reducing EU and global demand for seal 
products, the conclusion set out in the first sentence of paragraph 7.460 can be understood as simply reflecting an aggregation of those two conclusions. What follows in the remaining sentences 
of paragraph 7.460 thus consists of the Panel's recapitulation of its prior intermediate findings in 
respect of both the prohibitive and permissive aspects of the measure. 
5.227.  Finally, we take note of the fact that, in its analysis under Article XX of the GATT 1994, the 
Panel recalled its finding under Article 2.2 of the TBT Agreement that the EU Seal Regime 
"contributed to a certain extent  to its objective of addressing the EU public moral concerns on seal 
welfare".
1331 Although it is not apparent why the Panel framed its conclusion differently in these 
two sections, we do not see any appreciable difference between a finding that a measure "makes a 
contribution" and a finding that it "contributes to a certain extent". 
5.228.  The complainants further contend that the Panel failed to identify how the positive and 
negative contributions of the different elements of the measure resulted in a net overall 
contribution to the identified objective. The complainants add that the Panel's failure to identify the 
degree  of contribution in respect of each aspect of the objective meant that the Panel was not able 
to reach a sufficiently clear and precise conclusion with regard to the contribution of the EU Seal 
Regime to the stated objective. To be sure, the Panel's finding is not very detailed. The conclusion 
that the EU Seal Regime "is capable of making and does make some contribution"1332 does not 
provide much information as to the precise degree  or extent  of the contribution. At the same time, 
however, it is not clear what greater clarity or precision the Panel could have achieved in the 
circumstances of this case. We recall the Appellate Body's guidance in Brazil – Retreaded Tyres  
that a Panel's inquiry ultimately depends on "the nature, quantity, and quality of evidence existing 
at the time the analysis is made".1333 In these disputes, the Panel faced significant limitations in 
examining aspects of the measure other than through its design, structure, and expected  
operation. Principally, the Panel recognized, correctly in our view, that there was limited and 
                                               
1327 The Appellate Body stated: "Over time, this co mprehensive regulatory sch eme is apt to induce 
sustainable changes in the practices and behaviour of the domestic retrea ders, as well as other actors, and 
result in an increase in the number of retreadable tyre s in Brazil and a higher rate of retreading of domestic 
casings in Brazil." (Appellate Body Report, Brazil – Retreaded Tyres , para. 154)  
1328 Panel Reports, para. 7.459. 
1329 Panel Reports, para. 7.459. 
1330 Panel Reports, para. 7.460. 
1331 Panel Reports, para. 7.638. (emphasis added) The Panel used similar language in the conclusions 
and recommendations section of the Panel Reports. (Can ada Panel Report (DS400), pa ra. 8.2(c); Norway Panel 
Report (DS401), para. 8.2(b)) 
1332 Panel Reports, para. 7.460. 
1333 Appellate Body Report, Brazil – Retreaded Tyres , para. 145. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  uneven information relating to the actual  operation of the measure on the Panel record, in 
particular relating to the actual  operation of the exceptions, and the actual  impact the measure 
had on the EU seal product market. Given the particular nature of the measure at issue, and the specific circumstances of these disputes, it is not clear that the Panel could have done more. In 
sum, we do not consider that the Panel erred in concluding that the EU Seal Regime "is capable of 
making and does make some contribution"
1334 to its objective, or that it makes a contribution "to a 
certain extent".1335 
5.229.  Norway asserts a claim under Article 11 of the DSU that mirrors aspects of its claim that 
the Panel erred in the application of the legal standard. Norway argues, for instance, that the imprecision of the Panel's contribution analysis means that "the Panel provides an inadequate statement on how it weighed , balanced , and reconciled  the competing evidence of positive and 
negative contributions."
1336 Norway adds that "as the Panel failed to explain and reconcile the 
evidence in arriving at its conclusion, including in making its intermediate factual findings, there is no objective basis to comprehend how it arrived at its net overall conclusion."
1337 Similarly, 
Norway charges that the Panel failed to make an objective assessment in reaching its net overall 
conclusion as to the contribution of the EU Seal Re gime to its objective. According to Norway, "it is 
impossible to comprehend the basis on which the Panel found that the overall netting process 
leaves a positive contribution."1338 Norway adds that the Panel's overall conclusion is thus "bereft 
of any objective and coherent basis".1339 
5.230.  To the extent that we have reviewed the Panel's reasoning, and the clarity and precision of 
its findings, in our assessment of Norway's claim that the Panel erred in its contribution analysis, 
we have also addressed the substance of Norway's criticism that the nature and quality of the 
Panel's reasoning was inconsistent with an objective assessment under Article 11 of the DSU. We therefore see no grounds separately to consider th ese issues under Article 11. In the next section, 
we address Norway's other claims, including its claims under Article 11 of the DSU, as they relate 
to whether the Panel's conclusions were properly substantiated. 
5.3.2.4.3  Whether the Panel's findings regard ing the contribution of the EU Seal Regime 
to its objective were properly substantiated 
5.231.  In addition to claiming that the Panel's finding failed properly to establish the degree to 
which the EU Seal Regime contributes to its objective, the complainants assert distinct claims that various aspects of the Panel's findings were unsubstantiated. Norway identifies various points that 
it considers the Panel either undervalued or ov ervalued in assessing the contribution of the 
EU Seal Regime to the public morals objective.
1340 Separately, Canada and Norway both maintain 
that the Panel failed to substantiate its conclusion that the EU Seal Regime contributes to reducing 
EU and global demand for seal products an d the incidence of inhumanely killed seals.1341  
5.232.  We note that certain of the claims by Canada and Norway present overlapping challenges 
concerning the Panel's application of the law to the facts, as well as the Panel's assessment of the 
facts under Article 11 of the DSU. The Appellate Body has recognized the difficulty of 
distinguishing "clearly between issues that are purely legal or purely factual, or are mixed issues of law and fact", and has stated that "{i}n most cases … an issue will either  be one of application of 
the law to the facts or an issue of the objective assessment of facts, and not both."
1342 The 
Appellate Body has found that allegations implicating a panel's assessment of the facts and 
                                               
1334 Panel Reports, para. 7.460. 
1335 Panel Reports, para. 7.638; Canada Panel Report (DS400), para. 8.2(c); Norway Panel Report 
(DS401), para. 8.2(b). 
1336 Norway's appellant's submission, para. 415. (emphasis original) 
1337 Norway's appellant's submission, para. 418. 
1338 Norway's appellant's submission, para. 460. 
1339 Norway's appellant's submission, para. 465. 
1340 Norway's appellant's submission, paras. 316-397. 
1341 Canada's appellant's submission, paras. 176-208; Norway's appellant's submission, paras. 381-394, 
and 420-451. 
1342 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 955 (referring to EC and 
certain member States – Large Civil Aircraft , para. 872 (emphasis original)). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  evidence fall under Article 11 of the DSU.1343 By contrast, "[t]he consistency or inconsistency of a 
given fact or set of facts with the requirements of a given treaty provision is … a legal characterization issue" and therefore a legal question.
1344 We examine, where relevant below, 
whether certain of the complainants' claims are properly considered as claims of legal application 
under Article XX(a) of the GATT 1994, or as claims relating to the Panel's objective assessment of 
the facts within the meaning of Article 11 of the DSU. 
5.233.  We have structured our analysis to address the issues raised by the complainants in the 
following three subsections. First, we examine Cana da's and Norway's contention that the EU Seal 
Regime fails to contribute to the objective in various respects because it leads to worse seal welfare outcomes. Next, we assess the complainants' claims in respect of the Panel's finding that the EU Seal Regime contributes to reducing EU and global demand for seal products and the 
incidence of inhumanely killed seals. Finally, we co nsider several remaining claims as they relate to 
the Panel's analysis.  
5.3.2.4.3.1  Whether the EU Seal Regime  leads to worse seal welfare outcomes 
5.234.  Several of the arguments advanced by the complainants in respect of the Panel's 
contribution analysis are premised on the view that the EU Seal Regime could or does lead to greater numbers of imports of seal products de rived from seal hunts with poor seal welfare 
outcomes. Norway specifically addresses this matter in relation to several issues that it considers 
the Panel undervalued in assessing the contribution of the EU Seal Regime
1345, as well as in 
challenging the Panel's analysis under Article 11 of the DSU.1346 Canada does so to a more limited 
extent in its criticism of the Panel for failing to assess whether the EU Seal Regime makes a net 
positive contribution.1347 
5.235.  The complainants' premise that the EU Seal Regime leads to worse seal welfare outcomes 
consists of two elements: (i) that the EU Seal Regi me will have the effect of replacing imports from 
commercial hunts with those from IC and MRM hunts; and (ii) that IC and MRM hunts lead to 
higher rates of inhumanely killed seals as compared to commercial hunts. Both elements are required to sustain the premise upon which the complainants rely. Only if seal products derived 
from IC and MRM hunts replace seal products from commercial hunts would any alleged effect of 
worse seal welfare outcomes in the former hunts lead to an increase of seal product imports derived from inhumanely killed seals.  
5.236.  Canada and Norway identify factors that, in their view, cumulatively confirm the existence 
of a replacement effect. Norway refers to the Panel's finding that virtually all seal products from 
Greenland and the European Union are likely to be pl aced on the EU market by virtue of the IC and 
MRM exceptions, whereas the vast majority of Cana dian and Norwegian seal products do not meet 
the requirements of either of these exceptions.
1348 Norway considers that the Panel's findings also 
demonstrate that seal products may be sold on the EU market under the IC and MRM exceptions regardless of whether they derive from seals killed humanely, and that these exceptions do not 
impose any quantitative limits on the number of qualifying seal products that may be admitted to 
the EU market.
1349 Canada makes similar arguments when it refers to the Panel's findings that the 
                                               
1343 This includes claims that a panel: exceeded its au thority as a trier of facts (Appellate Body Report, 
US – Wheat Gluten , para. 151); disregarded evidence or did not have a sufficient evidentiary basis on the 
record for its finding (Appellate Body Report, US – Continued Zeroing , para. 338); lacked even-handedness in 
the treatment of evidence  (Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 292); 
failed to provide reasoned and adequate explanat ions for its findings (Appellate Body Report, US – Softwood 
Lumber VI (Article 21.5 – Canada) , para. 97); or failed to provide cohe rent reasoning (Appellate Body Report, 
US – Upland Cotton (Article 21.5 – Brazil) , para. 293 and fn 618 thereto, and para. 294). 
1344 Appellate Body Report, EC – Hormones , para. 132. 
1345 Norway's appellant's submission, paras. 324-360. 
1346 Norway's appellant's submission, paras. 472-474.  
1347 Canada's appellant's submission, paras. 169-175. 
1348 Norway's appellant's submission, para. 328 (referring to Panel Reports, paras. 7.164 and 7.608). 
1349 Norway's appellant's submission, paras. 325-327 (referring to, inter alia , Panel Reports, 
para. 7.447). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  only beneficiary under the IC exception is Greenland, and that all or virtually all seal products from 
Greenland are eligible to access the EU market under the IC exception.1350 
5.237.  Canada and Norway also point to Panel find ings and evidence in the Panel record that, in 
their view, support the conclusion that the EU Seal Regime would lead to the replacement by 
Greenlandic seal products of imports previously derived from commercial hunts in Canada and 
Norway. The complainants assert that these findings and evidence demonstrate that Greenlandic trade could by itself satisfy EU demand.
1351 First, the complainants note the Panel's conclusion that 
"all, or virtually all, seal products from Greenland are eligible to access the EU market under the 
IC exception".1352 Second, the complainants cite the Panel's statement that Greenland, for the 
period from 1993 to 2009, always caught over 163,000 seals annually, half the skins of which were normally traded.
1353 Norway compares the over 80,000 skin s estimated to be annually traded 
by Greenland with an estimation of, on average, 20,000 skins imported annually from Canada and 
Norway into the European Union between 2002 and 2008.1354 The complainants also point to the 
Panel's observation that "Greenland has stored ar ound 300,000 sealskins since the introduction of 
the EU Seal Regime".1355 Finally, we note that the complainants repeatedly refer to a statement in 
the COWI 2010 Report, not cited by the Panel, that  "Greenlandic trade is more than enough to 
cover the EU demand by itself".1356 
5.238.  The European Union contends that the ev idence on which Canada and Norway rely is 
unsupported and contradicted by other facts. The European Union argues that the complainants' main piece of evidence contained in the COWI 2 010 Report "is not supported by any evidence or 
reasoning and it is not possible to know on what basis COWI came to that view".
1357 The European 
Union identifies other facts that, in the European Union's view, contradict the appellants' position: 
(i) the number of seals hunted in Canada and Norway has traditionally exceeded the number of catches in Greenland; (ii) unlike in Canada and Norway, a large part of the seal skins in Greenland 
are consumed domestically rather than traded internationally; (iii) a large part of the seal skins 
are exported from Greenland to markets outside the European Union; (iv) there are Inuit exceptions under other countries' bans that would absorb exports of seal skins traded by 
Greenland; (v) global demand for seal products may not remain unchanged at currently depressed 
levels; (vi) the IC exception is subject to conditions that constrain Greenland's ability to expand supply more than traditional levels; (vii) Greenland's supply capacity is declining; and (viii) Greenlandic export data shows stable or declining exports to the European Union.
1358  
5.239.  The European Union further contends that this evidence demonstrates that, due to 
depressed global demand and prices resulting in  part from the EU Seal Regime, imports from 
Greenland "have not even returned to their usual level"1359 before seal product bans were first 
introduced in the European Union in 2007. The European Union also maintains that Norway's 
assertion that Greenland's supply of 80,000 seal skins per year can easily supply the European Union's average imports of 20,000 skins is flawed.
1360 This data, the European Union 
argues, only covers tanned skins, whereas Canada's principal exports to the European Union 
consisted of raw skins. Noting that Canada exported more than 100,000 raw skins to the European Union in 2006, the European Union asserts that Norway's own estimates show that "Greenland could not supply that volume on its own, even if it were to discontinue its exports to all 
other countries."
1361 Norway responded at the oral hearing that the European Union had itself 
acknowledged before the Panel that the Canadian export data include transit goods that do not 
enter the EU market and therefore overstate the level of EU imports from Canada. Norway added 
                                               
1350 Canada's appellant's submission, para. 170 (referring to Panel Reports, paras. 7.164, 7.314, 
and 7.315). 
1351 Canada's appellant's submission, para. 172; Norway's appellant's submission, para. 356. 
1352 Panel Reports, para. 7.164. 
1353 Panel Reports, para. 7.310. 
1354 Norway's appellant's submission, paras. 352-355 (calculated on the basis of data set out at 
paragraphs 7.310 and 7.456 of the Panel Reports). 
1355 Panel Reports, para. 7.310. 
1356 Canada's appellant's submission, paras. 6 and 171;  Norway's appellant's submission, paras. 3, 205, 
356, 382, and 470 (both quoting COWI 2010 Report, p. 84). The Panel referred to this page of the COWI 2010 Report in support of a different proposition. (Panel Reports, para. 7.315) 
1357 European Union's appellee's submission, para. 184. 
1358 European Union's appellee's submission, paras. 185-196. 
1359 European Union's appellee's submission, para. 196. 
1360 European Union's appellee's submission, para. 199. 
1361 European Union's appellee's submission, para. 199. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  that the European Union's own data show that the level of imports from Canada in 2006 comprised 
less than 11,000 skins.1362 
5.240.  Canada and Norway also identify factors th at, in their view, support the existence of worse 
seal welfare outcomes in Greenlandic as oppose d to commercial hunts. As a preliminary matter, 
Norway refers to the Panel's conclusion that EU public concerns on seal welfare appear to be 
related to seal hunts in general, not to particular types of seal hunts.1363 Norway maintains that 
this shows that the moral standard applies equally to IC and MRM hunts as it does to hunts 
conducted in Greenland and the European Union.1364 The complainants both assert that the Panel 
failed to take proper account of findings made elsewhere in its Reports that establish that IC and MRM hunts lead to poorer seal welfare outcomes th an commercial hunts. Specifically, they refer to 
several of the Panel's findings that, when taken together, in their view support a finding that 
Greenlandic Inuit rely mainly on open-water hunting and trapping and netting, and that these 
methods lead to higher rates of inhumanely killed  seals. The complainants note, for instance, the 
Panel's statement that "the use of rifles from boats in 'open water hunting' or trapping and netting 
appear to be the main hunting methods for Greenlandic Inuit".
1365 With regard to hunting with 
rifles from boats in open water, the Panel referred to evidence showing that shooting seals in open water can contribute to struck and lost rates, and that there was anecdotal evidence showing 
higher struck and lost rates in Greenlandic hunts than in commercial hunts.
1366 Regarding trapping 
and netting, the Panel also pointed to evidence that such hunting practices lead to severe seal welfare concerns, and that the use of nets is not allowed in Canadian and Norwegian commercial seal hunts.
1367 The complainants also pointed to differences observed by the Panel in compliance 
monitoring efforts as between Greenland, and Canada and Norway.1368  
5.241.  We note that other findings in the Panel Reports either highlight the particular seal welfare 
risks associated with both Inuit and commercial hunts, or indicate that such risks are equivalent. 
Thus, the Panel found that the existence of comm ercial motives leads to killing a greater number 
of seals in hunts conducted within a limited period of time, and that this "may additionally contribute to subjecting seals to the animal welf are risks identified above with respect to seal 
hunts in general".
1369 Moreover, the Panel noted that "similar challenges to effecting humane 
killing of seals exist in IC hunts"1370, and that "the same animal welfare concerns as those arising 
from seal hunting in general also exist in IC hunts".1371 The Panel thus refrained from making a 
finding that seal welfare outcomes were worse in IC or MRM hunts, as compared to those in 
commercial hunts, and instead limited itself to the more general finding that the risks of inhumane 
killing of seals are present in each of commercial, IC, and MRM hunts.1372 
5.242.  Canada and Norway frame many of the above arguments in a manner suggesting that they 
concern the Panel's legal characterization of the facts, and therefore constitute claims of error 
regarding the Panel's application of law.1373 We note that Norway has also presented certain of 
these matters as errors under Article 11 of the DSU.1374 The premise that the EU Seal Regime 
could or does lead to worse welfare outcomes due to a replacement effect appears to have been 
highly contested by the parties in these disputes. We further note that the Panel did not reach the findings sought by Canada and Norway, and, in the light of the contested nature of these facts between the parties, appears to have had reasonab le grounds for not doing so. Thus, even if there 
                                               
1362 Norway's opening statemen t at the oral hearing. 
1363 Norway's appellant's submission, para. 333 (referring, inter alia , to Panel Reports, para. 7.410). 
1364 Norway's appellant's submission, para. 334. 
1365 Panel Reports, para. 7.268. 
1366 Panel Reports, paras. 7.215, 7.216, and fns 324-331 thereto. 
1367 Panel Reports, para. 7.236 and fn 428 to para. 7.268. 
1368 Panel Reports, paras. 7.220 and 7.269. 
1369 Panel Reports, para. 7.245. 
1370 Panel Reports, para. 7.273. 
1371 Panel Reports, para. 7.275. 
1372 Panel Reports, paras. 7.245 (commercial), 7.275 (IC), and 7.337 (MRM). Norway confirms this point 
in stating that "the Panel failed to make any asse ssment of the animal welfare risks presented by the 
Greenlandic hunt in relation to  the banned hunts". (Norway's appellant's submission, para. 344) 
1373 Canada contends that the Panel's failure properly  to articulate the degree of contribution of the 
measure to the objective constitutes legal error. (See  e.g. Canada's appellant's submission, paras. 168-175) 
Norway considers that, in matters concerning the Panel' s task of determining the contribution of the measure 
to its public morals objective, the Pane l's errors constitute errors  in the legal characterization of the facts. (See 
e.g. Norway's appellant's submission, para. 317) 
1374 See e.g. Norway's appellant' s submission, paras. 468-475. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  were particular findings of the Panel that, when read in isolation, could be viewed as possibly 
supporting a differentiation between welfare outcomes in different types of hunts, the Panel was not of the view that such differentiation was clearly supported by the Panel record. Likewise, with respect to the replacement effect, the Panel identifi ed the difficulties it had in examining data due 
to significant gaps and limitations with the trad e data concerning the EU seal product market, 
particularly given that the data was incomplete with regard to product types and import and export countries. If the Panel was "not in a position to draw any concrete conclusions"
1375 concerning the 
data for purposes of determining seal product de mand, it does not seem unwarranted for the Panel 
to have refrained from relying on that same data to reach a finding that the EU Seal Regime could or does have the effect of replacing imports from commercial hunts with those from IC and MRM hunts. 
5.243.  On the basis of the foregoing, we consider  that the premise that the complainants believe 
is supported by the Panel record is primarily factual in nature, and therefore relates to the Panel's weighing and appreciation of the evidence. We ther efore consider that these claims of Canada and 
Norway are more properly addressed under Article 11 of the DSU as challenges to the Panel's 
objective assessment of the facts. Even in respect of aspects of the Panel's analysis where Canada 
and Norway have presented solely claims of error in the Panel's application of law to fact, we 
consider that their arguments would have been more properly characterized as ones concerning 
the Panel's failure properly to evaluate the evidence  on the Panel record, or to rely on other Panel 
findings, to reach a factual determination as to whether the EU Seal Regime could or does lead to worse seal welfare outcomes. We recall, in this re gard, our view that the record before the Panel 
provided it with reasonable grounds for not concluding that: (i) IC and MRM hunts lead to poorer 
seal welfare outcomes than commercial hunts; and (ii) the EU Seal Regime resulted in the replacement of seal product imports from commercial hunts with such products from IC and 
MRM hunts. Moreover, even where specific allegation s of error were raised under Article 11 of the 
DSU, we consider that our analysis is dispositive of those arguments as well.
1376 Accordingly, we 
see no grounds under Article 11 of the DSU to disturb the Panel's findings, and we therefore reject 
the claims of Canada and Norway as they relate to this aspect of the Panel's contribution analysis. 
5.3.2.4.3.2  Whether the EU Seal Regime cont ributed to reducing EU and global demand 
for seal products and the incidence of inhumanely killed seals. 
5.244.  Canada and Norway further claim that the Pa nel erred in its analysis of the contribution of 
the EU Seal Regime to the second aspect of the identified objective, namely, reducing the number 
of inhumanely killed seals.1377 Canada contends that the Panel relied on a proxy objective of 
reducing demand for seal products in the EU an d globally without assessing whether this then 
contributed to a reduction in the number of inhumanely killed seals.1378 Canada and Norway also 
maintain that there is no support for the Panel's conclusion that a reduction in EU or global demand for seal products would result in a reduction in the number of inhumanely killed seals.
1379 
Norway further argues that the rationale and evidence relied on by the Panel do not substantiate 
                                               
1375 Panel Reports, para. 7.456. 
1376 For instance, Norway notes that, despite numerous occasions on which the Panel relied on the 
COWI 2010 Report, the Panel nevertheless overlooked the st atement in that report that "Greenlandic trade is 
more than enough to cover EU demand by itself".  (Norway's appellant's submission, para. 470 (quoting 
COWI 2010 Report, p. xi) Norway refers to this as "a particularly revealing example of the Panel's selective treatment of the evidence". (Norway's appellant's submis sion, para. 469) Canada also notes that the Panel did 
not identify this statement from the COWI 2010 Report. (Canada's appellant's submission, para. 171) We have 
observed that there were significant, substantive disa greements between the parties on the issue of whether 
the EU Seal Regime could or does have the effect of  replacing imports from commercial hunts with those from 
IC and MRM hunts, and that the Panel had reasonable grounds for not reaching such a finding. In these circumstances, we cannot fault the Pa nel for failing to attribute to this particular evidence the significance 
sought by Canada and Norway. 
1377 Canada also argues that the Panel confused matter s by referring alternatively to the "incidence" and 
the "number" of inhumanely killed seals. (Canada' s appellant's submission, paras. 193-195) The European 
Union maintains that neither it nor the Panel ever sought, in referring to the "incidence" of inhumane killing of 
seals, to ascribe any meaning to that  term other than that relating to the number of such inhumanely killed 
seals. (European Union's appellee's submission, paras. 224 and 225) To the extent these terms can be seen as 
referring to different concepts, we note that the Panel makes clear, at paragraphs 7.443 and 7.449 of its Reports, that it understood the second aspect of the EU public morals object ive for purposes of its analysis as 
relating to the "number" of seals killed inhumanely. 
1378 Canada's appellant's submission, para. 177. 
1379 Canada's appellant's submission, para. 189; Norway's appellant's submission, para. 394. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  its conclusion that the measure affected the demand for seal products.1380 Finally, Canada and 
Norway contend that these shortcomings demonstrate that the Panel acted inconsistently with its duty to make an objective assessment within the meaning of Article 11 of the DSU.
1381  
5.245.  The European Union responds that the Panel properly found that the EU Seal Regime 
contributes to reducing EU and global demand fo r seal products. As the European Union observes, 
the complainants acknowledge that there has been  a significant decrease in seal product trade 
from Canada and Norway into the European Union.1382 The European Union further argues that, 
although the statistics relied on by the Panel were incomplete because they do not track separately 
all categories of seal products, "this does not mean that those statistics are unreliable".1383 Instead 
of disputing that such imports have declined, the European Union adds, the complainants rely on the "speculative prediction" that imports from Ca nada and Norway will be replaced by imports 
from Greenland.
1384 The European Union further maintains that, because EU demand for seal 
products is a component of the global demand for such products, reducing EU demand also contributes to reducing global demand.
1385 The European Union adds that this is supported by the 
fact that the EU seal product market has traditionally "occupied a central position within the global 
market"1386, and that trade statistics show a decline in Canada's exports and a "precipitous 
reduction in the number of seals hunted".1387 Finally, the European Union argues that the Panel 
"was entitled to assume that a reduction in the number of seals killed would entail necessarily a 
reduction of the number of seals being killed inhumanely" on the basis of its factual findings regarding the welfare risks inherent in all seal hunts.
1388 
5.246.  Before the Panel, the European Union argued that the ban makes a partial contribution to 
addressing public moral concerns regarding seal  welfare "by reducing global demand for seal 
products resulting from commercial hunts, with the consequence that less seals are killed in an inhumane way".
1389 Thus, by focusing on whether the ban reduces demand for seal products, the 
Panel appears to have accepted the proposition th at reducing such demand would lead to fewer 
inhumanely killed seals. The complainants contend that: (i) the evidence does not support the Panel's finding that the EU Seal Regime led to a reduction in demand for seal products; and (ii) the 
Panel never demonstrated that reducing dema nd leads to fewer inhumanely killed seals. 
5.247.  Taking the second point first, we note Canada and Norway's argument that the Panel 
omitted a critical step in its analysis by failing to assess whether a reduction in demand for seal products would actually contribute to a reduction in the number of inhumanely killed seals.
1390 The 
Panel did not seek to establish that a reduction in demand would lead to fewer inhumanely killed 
seals. However, in our view, it was not unreasonable for the Panel to assume that a decrease in demand, and hence a contraction of the seal prod uct market, would have the effect of reducing 
the number of seals killed, and thus the number of inhumanely killed seals. We therefore see 
nothing improper in the Panel's logic when it referred to the effect of the ban as one of "reducing the overall demand for seal products within the European Union and consequently the number of 
seals that may be killed inhumanely in these hunts ".
1391  
5.248.  The complainants further argue that seal products derived from Greenlandic hunts could 
fully satisfy EU demand, and that the ban could or does lead to an increase in the number of seals killed inhumanely.
1392 We discussed in the preceding section that this argument rests on a factual 
premise that seems to have been highly conteste d by the parties, was not uniformly supported by 
the Panel record, and, in any event, was not found to exist by the Panel. We also considered that 
                                               
1380 Norway's appellant's submission, paras. 381-394. 
1381 Canada's appellant's submission, paras. 198-208; Norway's appellant's submission, paras. 420-451. 
1382 European Union's appellee's submission, para. 211 (referring to Panel Reports, para. 7.456 and 
fn 731 thereto). 
1383 European Union's appellee's submission, para. 209. 
1384 European Union's appellee's submission, para. 212. 
1385 European Union's appellee's submission, para. 213. 
1386 European Union's appellee's submission, para. 216. 
1387 European Union's appellee's submission, para. 219. 
1388 European Union's appellee's submission, para. 226. 
1389 Panel Reports, para. 7.449. 
1390 Canada's appellant's submission, para. 177; Norway's appellant's submission, para. 394. 
1391 Panel Reports, para. 7.451. (emphasis added) 
1392 Canada's appellant's submission, paras. 189 and 205-207; Norway's appellant's submission, 
paras. 382 and 394.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  this premise is primarily factual in nature, and therefore relates to the Panel's weighing and 
appreciation of the supporting evidence. We theref ore view this issue as properly relating to a 
challenge under Article 11 of the DSU regarding the Panel's objective assessment of the facts. In the light of uncertainty about whether the Panel record ever evinced a more definite depiction of 
this aspect of the EU seal product market, much less the depiction sought by the complainants, we 
do not see sufficient grounds on which to sustain arguments that the Panel erred in assuming that reducing demand leads to fewer inhumanely killed seals. Accordingly, because we consider that it 
was reasonable for the Panel to rely on this assumption, we also reject Canada's and Norway's 
claims that the basis for such an assumption lacked a proper evidentiary foundation in violation of the Panel's duties under Article 11 of the DSU.  
5.249.  We next turn to the remaining questions as to whether the Panel's finding that the EU Seal 
Regime led to a reduction in demand for seal products was properly substantiated. We note the 
Panel's reference to statements in the COWI 2010 Report indicating that the EU Seal Regime has created uncertainty in the EU market, and that, as a result, trade numbers have decreased 
substantially and the market price of raw skin has been cut in half.
1393 The Panel also pointed to 
evidence that the EU Seal Regime has "halted" European markets for seal oil and had a generally 
negative influence on the EU seal product market.1394 Canada and Norway contend that this 
evidence is unavailing because the prohibitive aspect of the EU Seal Regime affects the supply, not 
the demand, for seal products.1395  
5.250.  The evidence cited by the Panel does not refer to demand per se  but rather to observations 
about trade impacts experienced by the EU seal product market as a whole. Such observations, 
however, are descriptive of a market dynamic that necessarily reflects both supply-side and 
demand-side considerations. Taking the statement about market price, for example, we observe that, generally speaking, a decrease in supply without a change in demand would lead to higher  
prices. Consequently, it would seem reasonable to infer from an observation about decreases in 
the market price that demand for seal products ha d also been adversely affected. Likewise, it does 
not seem unreasonable for the Panel to have consider ed that the "halting" of the seal oil market in 
certain EU countries was due at least in part to an impact on demand occasioned by the impact of 
the EU Seal Regime.
1396 We therefore consider that the references to market uncertainty and 
decreases in trade numbers and market prices are all elements of a market dynamic that is at 
least partly informed by demand-side considerations, and that the Panel therefore had a 
reasonable basis to conclude that the evidence that  it cited provided at least some support for the 
view that the measure reduced EU demand for seal  products. In our view, the presence of these 
demand-side considerations in the evidence relied upon by the Panel also addresses specific 
allegations of error that the Panel acted inconsistently with its duties under Article 11 of the DSU 
in its treatment of the evidence.1397 
                                               
1393 Panel Reports, para. 7.450. 
1394 Panel Reports, para. 7.450. 
1395 Canada's appellant's submission, para. 183; No rway's appellant's submission, paras. 386, 423, 
and 424. 
1396 The Panel referred to Norway's recognition that "the mere expectation of the adoption of the 
EU Seal Regime hampered trade", which could be understood  as reflecting at least in  part downward shifts in 
demand. (Panel Reports, para. 7.450 (quoting Norway's first written submission to the Panel, paras. 673 and 674, in turn referring to COWI 2010 Report, Annex 5, Briefing note of 2009)) Canada also stated before the Panel that the EU Seal Regime adversely affected market demand. (Canada's fi rst written submission to 
the Panel, para. 81 ("The 2007 Belgian and the Dutch pr ohibitions and the 2009 EU Seal Regime have had 
significant negative impacts on the Canadian industry's  ability to export seal pr oducts by decreasing the 
demand for such products."))  
1397 For instance, Norway directs a specific allegation of error at the Panel for citing the COWI 2008 
Report for a statement that restrictions  on market access will have trade impacts, yet neglecting to include a 
statement from the same passage of the Report that highlights supply-side impacts on various groups involved in the seal product trade. (Norway's appellant's submis sion, paras. 428-430 (referring to COWI 2008 Report)) 
Norway asserts that "this selective treatment of th e evidence, inferring a lack  of even-handedness and 
coherence in the treatment of the evidence, demonstr ates a lack of objectivity." (Norway's appellant's 
submission, para. 430) Although the passage refers to vari ous supply-side factors, it also refers to disruptions 
caused by the EU Seal Regime in the form of "income and production losses" by "i mporters and seal product 
manufacturers on the Community territory". (COWI 2008 Report, p. 102) We therefore see at least some 
support in this passage for a forecast of market uncert ainty and the prospect of a contracting EU market for 
seal products with attendant consequences for th e demand for seal produc ts in the EU market. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.251.  Norway further argues that the Panel's find ing regarding the impact of the EU Seal Regime 
on global demand is even more untenable since it lacks any supporting reasoning or evidence.1398 
In the analysis that precedes the Panel's finding that the EU Seal Regime contributes, "to a certain extent, to reducing a global demand"
1399, the Panel evaluated two aspects potentially having a 
bearing on global demand for seal products. First, as discussed above, the Panel reached the 
conclusion that the ban aspect of the measure led to a reduction of the demand for seal products within the European Union.
1400 The Panel therefore may have considered that, because EU demand 
for seal products is a component of the global de mand for such products, reducing EU demand also 
contributes to reducing global demand. As the European Union argues, although various factors may contribute to reducing global demand, "the reduction in EU demand would still entail a reduction in potential  global demand."
1401 T h i s  v i e w  i s  s u p p o r t e d  b y  t h e  f a c t  t h a t  t h e  P a n e l ' s  
conclusion in respect of global demand was, as it stated, based on the design, structure, and 
expected  operation of the measure. We also note th e Panel's finding that the measure contributed 
to reducing global demand only "to a certain extent".1402 
5.252.  Second, the Panel also evaluated data relating to the " actual  operation"1403 of the 
measure. There, as we have noted, the Panel made several observations regarding the data presented by the parties, ultimately concluding that, while it observed certain downward trends in 
seal product imports into the EU market, it was nevertheless "not in a position to draw any 
concrete conclusions".
1404 The Panel moreover noted that it was unable to discern "the extent of 
the connection between the ban aspect of the me asure and the reduction in the number of seals 
killed".1405 We do not see that the Panel drew much support from this data for its conclusion in 
respect of demand for EU seal products, whether in the European Union or globally. Indeed, the 
Panel stated that its ultimate findings in that regard were based on the measure's "design, structure, and expected operation"
1406, which does not suggest much reliance on the limited 
observations the Panel previously made regarding the data in relation to the "actual operation" of 
the measure.  
5.253.  The Panel appears to have based its conclusions in respect of global demand largely on its 
conclusions regarding the effect of the EU Seal Regime on EU demand. We further point out that 
any conclusions that the Panel reached regarding the effect of EU demand on global demand were further qualified by its observations about continuing imports for subsequent export under the inward processing exception.
1407 Although the basis for these findings appears quite tenuous, we 
recall again the difficulties faced by the Panel in conducting any sort of quantitative analysis on the 
basis of the Panel record, which rendered the Panel's analysis necessarily qualitative in nature. We further note that the Panel's ultimate finding in respect of the contribution of the measure to 
reducing demand for seal products, and consequent ly the number of inhumanely killed seals, is 
qualified by the Panel's statement that the EU Seal Regime " appears to be  negatively affecting the 
demand for seal products within the European Union and globally".
1408  
5.254.  Each of these issues regarding the Panel's finding that the EU Seal Regime results in 
reduced EU and global demand for seal products re late, in our view, to the question of whether the 
Panel properly reasoned and substantiated that fi nding. Although the complainants assert that 
certain aspects of the Panel's analysis constitute an error of legal application by the Panel, we 
consider that this issue relates principally to the Panel's weighing and appreciation of the evidence. 
We therefore consider that these claims are more properly entertained under Article 11 of the DSU as challenges to the Panel's objective assessment of the facts. We have examined the alleged 
shortcomings identified by the complainants in the Panel's reasoning or evidentiary support for 
findings that it reached. We consider that the Panel has, within the constraints imposed by the evidence before it in these disputes, declined to  attribute to certain arguments and evidence the 
weight and significance that the complainants would have liked. It is not an error under Article 11 
                                               
1398 Norway's appellant's submission, paras. 389 and 444. 
1399 Panel Reports, para. 7.459. 
1400 Panel Reports, para. 7.450. 
1401 European Union's appellee's submission, para. 214. (emphasis original) 
1402 Panel Reports, para. 7.459. (emphasis added) 
1403 Panel Reports, para. 7.456. (emphasis added) 
1404 Panel Reports, para. 7.456. 
1405 Panel Reports, para. 7.458. 
1406 Panel Reports, para. 7.459. 
1407 Panel Reports, paras. 7.453-7.455. 
1408 Panel Reports, para. 7.460. (emphasis added) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  of the DSU for a panel "to fail to accord the weight  to the evidence that one of the parties believes 
should be accorded to it".1409 The fact that the complainants may not agree with a conclusion the 
Panel reached, or considered itself unable to reach, does not mean that the Panel committed an error amounting to a violation of Article 11 of the DSU. Accordingly, we do not consider that any 
alleged limitations identified by the complainants in respect of the Panel's finding that the EU Seal 
Regime led to a reduction in demand for seal products amount to a violation of Article 11 of the DSU, and we therefore reject the claims of Canada and Norway as they relate to this aspect of the 
Panel's contribution analysis. 
5.3.2.4.3.3  Whether the Panel erred in ot her aspects of its contribution analysis 
5.255.  Finally, we address Norway's claims that the Panel undervalued two additional aspects in 
assessing the contribution of the EU Seal Regime to the public morals objective.  
5.256.  Norway argues that the Panel failed to take proper account of the negative contribution 
made by the implicit exceptions in its contribution analysis. Norway maintains that, despite the Panel's observations about the commercial importance of the implicit exceptions, the "significance" 
of these exceptions "is nowhere properly taken into account or characterized by the Panel in 
arriving at its overall conclusion".
1410 Although Norway may have wished that the Panel attribute 
greater significance to this factor than it did,  we are not persuaded by Norway's complaint given 
that the Panel explicitly discussed the impact of inward processing on the EU market in the context 
its contribution analysis.1411 In doing so, the Panel referred to the incoherency of a measure that 
prohibits seal product imports based on the potential incidence of inhumanely killed seals, yet allows processing activities within the European Union in respect of those very same products. The 
Panel went on to conclude that the inward processing exception "further reduces the contribution 
of the measure to the reduction of the global demand for seal products derived from inhumane killing".
1412 Moreover, in the absence of a finding or evidence that seal product imports into the 
EU market increased under the inward processing or other implicit exceptions1413, we do not see 
how this would necessarily have a bearing on the extent to which the prohibitive aspect of the measure contributes to the objective. Given the above, we reject Norway's argument that the 
significance of the implicit exceptions "is nowhere properly taken into account or characterized by 
the Panel in arriving at its overall conclusion".
1414 
5.257.  Norway further argues that the Panel wrongly concluded that indigenous communities have 
not been able to benefit from the IC exception, a factor that the Panel considered to limit the 
negative impact of the exceptions.1415 Specifically, Norway points to the Panel's conclusion that, 
although Inuit and other indigenous communities could potentially qualify and export seal products under the IC exception, "they have not been able to benefit from the exception".
1416 Norway 
considers that the Panel's finding is "disingenuous"1417 because no Greenlandic imports were 
possible under the IC exception until a Greenlandic  body to certify imports was approved on 
25 April 2013, four days before the second Panel meeting, and that the Panel was nevertheless 
compelled to consider the expected  operation of the measure after that date.1418 Norway also 
argues that the Panel's conclusion demonstrates  a selective treatment of the evidence, and a 
failure to refer to or reconcile its findings, in violation of Article 11 of the DSU.1419 
                                               
1409 Appellate Body Report, Korea – Alcoholic Beverages , para. 164. 
1410 Norway's appellant's submission, para. 374. 
1411 Panel Reports, paras. 7.453-7.455. 
1412 Panel Reports, para. 7.455. 
1413 We note the Panel's observation that, while seal skins have been exported from the European Union 
following the adoption of the EU Seal Regime possib ly resulting from inward processing activities, these 
activities have occurred at reduced levels from previous years. (Panel Reports, fn 721 to para. 7.453)  
1414 Norway's appellant's submission, para. 374. 
1415 Norway's appellant's submission, paras. 361-371 (referring to Panel Reports, para. 7.452). Norway 
also challenges this Panel finding under Article 11 of the DSU. (Norway's appellant's submission, 
paras. 452-458) 
1416 Panel Reports, para. 7.452. 
1417 Norway's appellant's submission, para. 363. See also ibid., para. 455. 
1418 Norway's appellant's submission, paras. 369 and 370. See also ibid., para. 456. 
1419 Norway's appellant's submission, para. 453. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.258.  The European Union responds that the Panel record supports the Panel's finding that the 
Inuit have been adversely affected by the EU Se al Regime and have not always been able to 
benefit from the IC exception. In the European Un ion's view, the EU Seal Regime has a depressing 
effect on global prices and demand, including on seal products from IC hunts.1420 The European 
Union also rejects as "thoroughly misguided"1421 Norway's assertion that the only reason the 
indigenous communities have not been able to benefit from the IC exception is because Greenland did not have an established recognized body at the time of the Panel proceedings. The European 
Union maintains that the Panel was "well aware th at Greenland had benefitted effectively from the 
IC exception since 2010", and must be understood as referring to the difficulties faced by indigenous communities in Canada, not Greenland.
1422  
5.259.  We do not consider that the Panel was, as Norway argues, referring exclusively to the fact 
that Greenlandic imports were not legally permitted before 25 April 2013 as the basis for its 
statement. Given the Panel's recognition that Greenlandic imports had already been introduced into the EU market prior to that date, we consider it unlikely that the Panel would have been 
referring to difficulties faced by indigenous communities in Greenland.
1423 In addition, the Panel 
elsewhere noted that Canadian Inuit face certain obstacles in taking advantage of the IC exception.
1424 Moreover, we observe that the Panel's conclusion in this paragraph also refers to 
evidence indicating that Inuit communities have been adversely affected by, in particular, the 
prohibitive aspect of the EU Seal Regime, wh ich suggests an adverse impact on marketing 
opportunities for Inuit communities created by the restrictive impact of the ban.1425 This points to 
another reason supporting the Panel's view that the interplay between the ban and the 
IC exception may limit the negative impact of the exception. In the light of these considerations, 
we do not consider that the Panel placed undue emphasis on factors concerning the eligibility of Greenlandic imports in reaching its conclusion. In our view, Norway's claim relates to a decidedly 
factual question of whether the Panel properly concluded that Inuit communities have not been 
able to benefit from the IC exception. Becaus e this question relates solely to the Panel's 
assessment of the evidence, we consider that it is more properly considered under Article 11 of the 
DSU. In any event, for the reasons set out above, we  reject Norway's claim that the Panel failed to 
conduct an objective assessment under Article 11 of the DSU. 
5.3.2.5  The Panel's analysis of the reasonab le availability of the alternative measure 
5.260.  We now turn to assess Canada's and Norway's claims relating to the Panel's finding that 
the alternative measure was not reasonably available.  
5.261.  We recall the Appellate Body's view that the weighing and balancing exercise under the 
necessity analysis contemplates a determination as to "whether a WTO-consistent alternative 
measure which the Member concerned could 'reasonably be expected to employ' is available, or 
whether a less WTO-inconsistent measure is 'reasonably available'."
1426 An alternative measure 
may be found not to be reasonably available where it is "merely theoretical in nature, for instance, 
where the responding Member is not capable of ta king it, or where the measure imposes an undue 
burden on that Member, such as prohibitive costs or substantial technical difficulties."1427 
Furthermore, in order to qualify as a "genuine alternative", the proposed measure must be not 
only less trade restrictive than the original measure at issue, but should also "preserve for the 
responding Member its right to achieve its desired level of protection with respect to the objective 
                                               
1420 European Union's appellee's submission, para. 205. 
1421 European Union's appellee's submission, para. 206. 
1422 European Union's appellee's submission, para. 206. 
1423 Panel Reports, fn 220 to para. 7.164, and para. 7.316. 
1424 Panel Reports, paras. 7.162 and 7.315 (referring to  Canada's explanation that Canadian Inuit would 
have difficulty taking advantage of the IC exception because they have limited access to the distribution networks, processing facilities, and marketing opportunities needed to ex port their seal products to the 
European Union). 
1425 Canada and the European Union acknowledge evid ence on the Panel record showing that Inuit 
communities were opposed to the EU Seal Regime becaus e it would have a negative impact on the market for 
all seal products. (Canada's appellant's submission, para. 91; European Union's appellee's submission, 
paras. 98, 141, 142, and 202-204) 
1426 Appellate Body Report, Korea – Various Measures on Beef , para. 166. 
1427 Appellate Body Report, Brazil – Retreaded Tyres , para. 156 (quoting Appellate Body Report, US – 
Gambling , para. 308). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  pursued."1428 The complaining Member bears the burden of  identifying possible alternatives to the 
measure at issue that the responding Member could have taken.1429 
5.262.  In these disputes, the proposed alternative measure consisted of market access for seal 
products that would be conditioned on compliance with animal welfare standards, and certification 
and labelling requirements.1430 The Panel found that the alternative measure is less trade 
restrictive than the EU Seal Regime.1431 This finding is not challenged on appeal. Instead, Canada 
and Norway request us to reverse the Panel's finding that the proposed alternative measure is not 
reasonably available.1432 The complainants principally argue that the Panel failed to assess the 
alternative measure against the actual  contribution of the EU Seal Regime, but rather did so 
against a standard of complete  fulfilment of the objective. The complainants argue that, since 
complete fulfilment of the objective is a higher degree of contribution than what was found under 
the EU Seal Regime, the Panel erred in finding that the alternative measure is not reasonably 
available.1433 The complainants point to various statements by the Panel that, in their view, 
demonstrate the Panel's error.1434 In addition, they assert that the Panel misapplied 
WTO jurisprudence. In particular, Canada and Norway submit that the significance of costs and 
technical difficulties relates to those borne by WTO Members, not by the relevant industry.1435 
5.263.  The European Union responds that the co mplainants' allegations that the Panel assessed 
the contribution made by the alternative measure against the wrong benchmark "misrepresent the 
analysis conducted by the Panel and are unfounded".1436 The European Union contends that the 
Panel did not ignore its findings regarding the ex ceptions, and that, even if it did not expressly 
repeat its findings with regard to the exceptions, "those findings are reflected in the Panel's overall 
assessment of the contribution".1437 The European Union maintains that, because the complainants 
failed to articulate a sufficiently precise alternative measure, the Panel "had to assess instead the degree of contribution and the reasonable availabili ty of two distinct hypothetical regimes within 
the scope of the broad [less trade-restrictive alternative] proposed by the Complainants".
1438 The 
European Union maintains that, although the complainants sought to establish that a more lenient regime was possible, they "failed to specify the co ntent of such a 'more lenient regime' before the 
Panel, let alone provide any meaningful assessment of its contribution to the measure's 
objective".
1439  
5.264.  We turn first to evaluate the claims on appeal by Canada and Norway that the Panel erred 
in finding that the proposed alternative measure was not reasonably available, before turning to 
address the claims under Article 11 of the DSU. 
                                               
1428 Appellate Body Report, Brazil – Retreaded Tyres , para. 156 (quoting Appellate Body Report, US – 
Gambling , para. 308). 
1429 Appellate Body Reports, Brazil – Retreaded Tyres , para. 156; and US – Gambling , para. 311. 
1430 Panel Reports, para. 7.468 (referring to Canada's first written submission to the Panel, 
paras. 556-560; and Norway's first written submission to the Panel, paras. 779 and 793). 
1431 Panel Reports, para. 7.472. 
1432 Canada's appellant's submission, para. 299; Norway's appellant's submission, para. 580. 
1433 Canada's appellant's submission, para. 261; Norw ay's appellant's submission, paras. 554 and 579. 
1434 See Canada's appellant's submission, paras. 234-277; and Norway's appellant's submission, 
paras. 582-612. Canada also maintains that the Panel erred by disregarding measures applied by the European Union in regulating wildlife hunts and abatto irs. (Canada's appellant's submission, paras. 278-290) 
1435 Canada's appellant's submission, paras. 291-298; Norway's appellant's submission, paras. 613-617. 
1436 European Union's appellee's submission, para. 245. 
1437 European Union's appellee's submission, para. 249. 
1438 European Union's appellee's submission, para. 260. 
1439 European Union's appellee's submission, para. 261. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.3.2.5.1  Whether the Panel erred in findin g that the proposed alternative measure was 
not reasonably available 
5.265.  Canada and Norway point to key passages of the Panel's analysis that they believe 
evidence its use of an inappropriately high benchmark of contribution for the EU Seal Regime.1440 
The complainants refer, for instance, to the Panel's assessment of the contribution of the 
alternative measure to preventing or reducing expo sure of the EU public to products raising moral 
concerns. They take issue, in particular, with the Panel's statement that, "even if the alternative 
measure succeeded in limiting market access to exclusively those products derived from humanely 
killed seals, such products would originate in hunts that may have caused poor animal welfare outcomes for some other number of seals."
1441 In Canada's and Norway's view, by requiring that 
the alternative measure limit market access to only those seal products that were derived from 
humanely killed seals, the Panel holds the alternative measure to a higher standard that the 
EU Seal Regime could not meet.  
5.266.  Similarly, in assessing the contribution of the alternative measure to reducing the number 
of seals killed, the complainants note the Panel's statement that the alternative measure would 
potentially afford market access to seal products from commercial hunts that are currently prohibited under the EU Seal Regime. As the Panel stated, this "may in turn contribute to 
sustaining or increasing the overall number of seals killed, which would have the consequence of 
subjecting a greater number of seals to the animal welfare risks incidental to seal hunting".
1442 
Canada argues that the Panel did not reconcile this statement with its observation that the alternative measure could potentially introduce an economic incentive for sealing countries to 
adopt and enforce animal welfare standards.
1443 Norway contends that the Panel's citation to a 
European Parliament report that favoured a comprehensive ban without a derogation for seal products meeting animal welfare standards confirmed that the Panel held the alternative measure 
to a standard that exceeded the actual contribution of the EU Seal Regime.
1444 
5.267.  The essence of the complainants' contention is that it was improper for the Panel to have 
entertained scenarios in which an alternative measure would limit market access only to humanely 
killed seals, or would increase overall market acce ss, since that is not reflective of the level of 
contribution actually achieved by the EU Seal Re gime. We agree that several of the hypothetical 
outcomes considered by the Panel in its assessm ent of the alternative measure contemplate the 
consequences of a certification system that would operate to exclude all inhumanely killed seals 
from, and include all humanely killed seals into, the EU market, or that would potentially lead to 
increased EU market access for seal products. In our view, however, the Panel's analysis was inconclusive at this stage of its assessment. The Panel was at this point in its analysis simply 
assessing what possible scenarios might result from adoption of a certification system.  
Indeed, we do not see that the Panel ever reache d a definitive conclusion with respect to the 
contribution of such a system vis-à-vis the EU Seal Regime. Rather, because it considered that the 
impacts of the alternative measure were "closely related to the type of animal welfare 
requirements to be imposed, the feasibility of enforcement of such requirements, and the 
attendant risks of inhumane killing in seal hunts"
1445, the Panel found that there was an 
"inextricable link between the contribution of the alternative measure to the objective and the 
                                               
1440 Canada also argues that the Panel erred in its assessment of the alternative measure by recalling 
only the contribution of the prohibitive aspect of the EU Seal Regime. (Canad a's appellant's submission, 
paras. 237-244 (referring to Panel Reports, para. 7.478)) While it is true that the Panel did not expressly refer to its assessment of the impact of the exceptions, it im plicitly did so by accurately characterizing its overall 
finding in that same paragraph that  the EU Seal Regime "is capable of making and does actually make a 
contribution to the achievement of its stated objectiv e of addressing the public moral concerns". (Panel 
Reports, para. 7.478) 
1441 Canada's appellant's submission, para. 240; No rway's appellant's submission, para. 593 (both 
referring to Panel Reports, para. 7.480) . Canada also refers to the statemen t in that same passage that, to the 
extent that the alternative measure could effectiv ely distinguish and label products from humanely and 
inhumanely killed seals, "the direct participation of  EU consumers in the market  for seal products would 
theoretically be confined to products that conform to th e animal welfare concerns of the EU public". (Canada's 
appellant's submission, para. 247 (quoting Panel Reports, para. 7.480)) 
1442 Canada's appellant's submission, para. 254; No rway's appellant's submission, para. 596 (both 
referring to Panel Reports, para. 7.482). 
1443 Canada's appellant's submission, paras. 255-257 (referring to Panel Reports, para. 7.483). 
1444 Norway's appellant's submission, paras. 596-599. 
1445 Panel Reports, para. 7.484. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  feasibility of its implementation".1446 Thus, having identified certain conceptual limitations of any 
certification system in fulfilling the objective of addressing EU public moral concerns regarding seal welfare, the Panel expressly refrained from making a finding regarding the contribution of the 
alternative measure until it could also evaluate the reasonable availability of the alternative 
measure. We therefore do not agree with Canada and Norway that these statements of the Panel 
demonstrate that it erroneously considered the E U  S e a l  R e g i m e  t o  h a v e  a c h i e v e d  c o m p l e t e  
fulfilment of the objective, and then to have measured the alternative measure against such an 
inflated benchmark.  
5.268.  Canada and Norway also consider that the Panel, in assessing the reasonable availability of 
the alternative measure, compared that measure against a higher degree of contribution than 
what was found in respect of the EU Seal Regime.
1447 The complainants refer, for instance, to the 
Panel's statement that "in order to genuinely assuage [animal welfare] concerns there would need 
to be a mechanism to verify that the requirements were actually satisfied for seals used to generate products".
1448 This statement, they contend, demonstrates that the Panel compared the 
alternative measure against stringent animal welfare requirements including seal-by-seal 
certification, a standard that the EU Seal Regime does not meet.1449 The complainants further 
argue that the Panel also wrongly concluded that certification at the country or hunter level is 
insufficient because it would fail to convey accurate information in respect of seal welfare, a 
standard that the EU Seal Regime also does not meet.1450  
5.269.  As we see it, in addressing whether the alternative measure was reasonably available, the 
Panel was exploring the hypothetical implications for the European Union's ability to achieve its 
objective of addressing seal welfare concerns. There were several recurring elements in its 
analysis. We note, for instance, the Panel's explanation that it was undertaking an analytical exercise in which the contours of the animal welf are standards required as part of the alternative 
measure were not clearly defined, and that this  had a bearing on the range of hypothetical 
versions of the alternative measure that the Pa nel was being asked to examine. As the Panel 
stated: "Based on the differing views on what wo uld constitute adequate welfare standards, and 
absent a clearly articulated standard from the complainants, the requirements under the 
alternative measure could possibly span a range of different levels of stringency or leniency."
1451  
5.270.  We further note that the Panel appeared quite sceptical that a certification system, even if 
it were to adopt the most stringent animal welfare requirements, would be able effectively to 
address EU public moral concerns regarding seal welfare. For instance, the Panel considered that 
adopting a certification system to enforce stringent animal welfare requirements would create significant difficulties in terms of monitoring and compliance. Any such system, the Panel argued, 
would require "accurate differentiation"
1452 between humanely and inhumanely killed seals, and 
the more stringent the regime, the larger the "costs and/or logistical demands on those participating in the hunt and subsequent marketing of products".
1453 The concern in part stems 
from the Panel's assessment that hunters would have difficulty conforming to a certification 
system imposing stringent animal welfare requirem ents in the light of the conditions under which 
seal hunts take place. The Panel suggested that this is a practical concern in terms of both the ability  and willingness  of seal hunters to conform to such requirements.
1454 Additionally, however, 
the Panel's concern is broader in that it extends to the implications for those involved in 
subsequent stages of the production and sale of seal products, and those who would be required to enforce it. In particular, the Panel noted the persistent difficulties that arise regardless of whether 
the regime relies on hunter licensing, or requires country or seal-by-seal certification.
1455 
                                               
1446 Panel Reports, para. 7.485. 
1447 Canada's appellant's submission, para. 261; Norway's appellant's submission, para. 600. 
1448 Canada's appellant's submission, paras. 224 and 263; Norway's appellant's submission, para. 601 
(both referring to Panel Reports, para. 7.496). 
1449 Canada's appellant's submission, paras. 263 and 264; Norway's appellant's submission, 
paras. 601-603. 
1450 Canada's appellant's submission, para. 267; No rway's appellant's submission, paras. 605-608. 
1451 Panel Reports, para. 7.496. 
1452 Panel Reports, para. 7.496. 
1453 Panel Reports, para. 7.497. 
1454 Panel Reports, para. 7.496 and fn 798 thereto. 
1455 Panel Reports, para. 7.498. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.271.  The Panel also expressed the concern that a certification system that sought to impose 
stringent welfare requirements would have consequences that would effectively undercut any potential contribution to EU public moral concerns. In other words, the Panel considered that a certification system would create an outcome in which the desire to conform to stringent 
certification requirements would lead to greater numbers of seals killed, and, consequently, a 
greater number of seals killed inhumanely. The Panel reasoned that this result would be particularly acute in larger scale hunts where an effort to harvest a number of properly certified 
seals would lead to even greater numbers of seal killings with an attendant increase in the number 
of inhumanely killed seals.
1456 The Panel also considered that a certification system would have the 
effect of restoring or expanding the market for se al products that had been diminished due to the 
ban, and that this would also lead to an increa sed number of seals being killed, and, consequently, 
a greater number of inhumanely killed seals.1457 
5.272.  We do not consider the Panel's reference to more stringent hypothesized regimes as 
somehow suggesting that it was comparing the alternative measure against a benchmark of 
complete fulfilment of the objective. Rather, we understand the Panel to have suggested that even 
the more stringent  certification systems presented significant difficulties in terms of both their 
reasonable availability and their contribution to the objective. As the Panel stated, more stringent 
certification systems would likely present difficulties in terms of ensuring adequate animal welfare 
standards and accurately distinguishing between humanely and inhumanely killed seals, and lead to increased market access accompanied by more seal killings, and, consequently, more inhumanely killed seals. Indeed, the Panel did not suggest that the stringent alternative measure 
achieved complete fulfilment, but rather that it would be difficult to implement and enforce, and 
would lead to increased numbers of inhumanely killed seals. Alternatively, the Panel noted, a more lenient regime might very well attenuate some of these limitations, but then would have the 
consequence – by more weakly enforcing animal welfare standards and any distinctions drawn 
between humanely and inhumanely killed seals – of achieving a weak contribution in respect of EU public moral concerns regarding seal welfare. The fact that the Panel entertained, and 
compared, the possibility of stringent versus lenient versions of a certification system, in order to 
consider how a loosely defined alternative measure might contribute to the identified objective, confirms in our view that the Panel was undertaking considerable efforts to understand how such variations of the alternative measure might operate. We understand the Panel to have concluded 
that, irrespective of the level of stringency, a certification system would be beset by difficulties in 
addressing EU public moral concerns regarding seal welfare. 
5.273.  We also reject the complainants' contention that the Panel erred in relying on "the 
Appellate Body's guidance that a responding Memb er cannot be reasonably expected to employ an 
alternative measure that involves a continuation of the very risk that the challenged measure seeks to halt".
1458 Canada and Norway argue that, by referring to the challenged measure as 
"halting" a "risk", the Panel was holding the alternative measure up to a higher standard of 
achievement than what the EU Seal Regime itself met.1459 We do not agree that the Panel attached 
to this statement the significance that Canada and Norway claim it did. The reference  in EC – Asbestos  immediately follows the Panel's stated concern that the alternative measure 
would lead to "restored market opportunities".
1460 Given the Panel's prior finding that the EU Seal 
Regime appears to reduce the market for seal products, this suggests that such restored opportunities would have the potential to increase exposure of the EU public to inhumanely killed 
seals. In that context, we read the Panel to be referencing the Appellate Body's statement  
in EC – Asbestos  only as support for the proposition that a responding Member cannot be expected 
to accept an alternative measure that makes less of a contribution to its objective than the 
challenged measure. For the above reasons, we do not agree that the Panel was comparing the 
alternative measure against a standard of complete fulfilment. 
                                               
1456 Panel Reports, paras. 7.480, 7.496, and 7.498. 
1457 Panel Reports, paras. 7.482, 7.484, and 7.502. 
1458 Panel Reports, para. 7.502 (referring to Appellate Body Report, EC – Asbestos , para. 174). 
1459 Canada's appellant's submission, paras. 270-277; Norway's appellant's submission, paras. 611 
and 612. Canada asserts that the Panel's reference to EC – Asbestos  "illustrates it[s] misinterpretation and 
misapplication of the 'reasonably av ailable' requirement for an altern ative measure when carrying out the 
necessity test". (Canada's appellant's submission, para. 271) 
1460 Panel Reports, para. 7.502. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.274.  Canada and Norway further submit that the Panel erred in considering the costs and 
logistical demands on hunters and marketers of seal products if a strict certification scheme were to be adopted by the European Union. According to  the complainants, the Appellate Body report in 
Brazil – Retreaded Tyres  stands for the proposition that it is the burdens and costs imposed on the 
responding WTO Member, not on the industry, th at are relevant for a finding on whether the 
alternative measure is reasonably available.
1461 
5.275.  According to the European Union, the Appellate Body report in Brazil – Retreaded Tyres  
simply identifies an example of a situation where the proposed alternative would not be reasonably 
available, but that there "can be other circum stances where a measure would not be available 
because it would be 'merely theoretical in nature'".1462 The European Union further notes that, 
despite the Panel's conclusion regarding the gr eater expenditure and practical challenges of 
implementation, the costs of such a regime was "j ust one of the obstacles mentioned by the Panel 
and, by no means, the most important".1463 
5.276.  In Brazil – Retreaded Tyres , the Appellate Body stated as follows:  
As the Appellate Body indicated in US – Gambling,  "[a]n alternative measure may be 
found not to be 'reasonably available' ... wher e it is merely theoretical in nature, for 
instance, where the responding Member is not capable of taking it, or where the 
measure imposes an undue burden on that Member, such as prohibitive costs or 
substantial technical difficulties."1464 
5.277.  This passage suggests that the "prohibitive costs or substantial technical difficulties" are 
indeed those associated with the burden placed on a Member. At the same time, however, this 
language does not foreclose the possibility that there may be other indications that the alternative 
measure is "merely theoretical in nature". As we see it, if there are reasons why the prospect of imposing an alternative measure faces significant, even prohibitive, obstacles, it may be that such 
a measure cannot be considered "reasonably available". We would not exclude a priori  the 
possibility that an alternative measure may be deemed not reasonably available due to significant costs or difficulties faced by the affected industry, in particular where such costs or difficulties 
could affect the ability or willingness of the indu stry to comply with the requirements of that 
measure. We therefore consider that an assessment of the reasonable availability of an alternative 
measure could potentially include the burden on the industries concerned.
1465  
5.278.  We also are not persuaded that the Panel erred in concluding that the situations in which 
other measures are applied are not sufficiently similar to the circumstances of the seal hunt to 
assist in determining the availability of alternative measures.1466 Indeed, although it acknowledged 
that the examination of measures applied to other product areas may provide useful input in 
determining whether an alternative measure is reasonably available, the Panel also recalled the 
following: its findings regarding the particular characteristics, risks, and challenges of seal hunting; that the evidence did not establish comparable effective stunning rates in seal hunts and 
commercial abattoirs; and "in any case that the two situations differ significantly in areas of great 
relevance to the application of humane killing methods".
1467 In our view, the Panel provided a 
reasonable explanation as to why it did not consider regimes applicable in other situations helpful in determining the reasonable availability of the alternative measure. 
5.279.  In sum, having reviewed the Panel's reasoning and findings in respect of the alternative 
measure, we do not consider that the Panel erred in concluding that "the alternative measure is not reasonably available".
1468 In our view, the Panel undertook considerable efforts to understand 
what impact hypothetical variations of the alternative measure might have on the objective of the 
EU Seal Regime. The Panel considered that, whether focusing on addressing the EU public's 
                                               
1461 Canada's appellant's submission, paras. 291-298; Norway's appellant's submission, paras. 613-617.  
1462 European Union's appellee's submission, para. 279. 
1463 European Union's appellee's submission, para. 281. 
1464 Appellate Body Report, Brazil – Retreaded Tyres , para. 156 (quoting Appellate Body Reports, US – 
Gambling , para. 308). See also Appellate Body Report, EC – Asbestos , paras. 172-174. 
1465 See Appellate Body Report, EC – Asbestos , para. 174. 
1466 Canada's appellant's submission, paras. 278-290 (ref erring to Panel Reports, fn 815 to para. 7.504). 
1467 Panel Reports, fn 815 to para. 7.504 (referring to Appellate Body Report, Korea – Various Measures 
on Beef , para. 170). 
1468 Panel Reports, para. 7.504. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  participation in the market for products derived from inhumanely killed seals, or the overall 
number of inhumanely killed seals, even the most stringent certification system would be difficult to implement and enforce, and would lead to in creased numbers of inhumanely killed seals. The 
Panel further considered that making the welfare standards or the certification and labelling 
requirements more lenient would make the alte rnative measure more reasonably available but 
would not meaningfully contribute to addressing EU public moral concerns regarding seal welfare. We therefore understand the Panel to have conclude d that, irrespective of the level of stringency, 
a certification system would be beset by difficul ties in addressing EU public moral concerns 
regarding seal welfare. The Panel thus was not persuaded that such a hypothetical regime constituted an alternative that is reasonably available. 
5.280.  Finally, we note the Panel's finding that, al though the contribution of the EU Seal Regime 
to the fulfilment of its objective is lowered by the implicit and explicit exceptions of the measure, 
"the complainants have not clearly defined an alternative measure in respect of its separate components and their cumulative capability to address the moral concerns of the EU public".
1469 
Under the circumstances of this case, it is not clear to us how much more could have been 
required of the complainants in articulating the nature and scope of the alternative measure. We 
have certain doubts about the Panel's criticism, particularly given what seems to be substantial 
engagement between the Panel and the parties regarding the features of such a certification 
scheme and its ability to contribute to the object ive. In any event, however, our concerns are 
particular to the circumstances of this case, and do not alter our assessment of the Panel's overall finding. 
5.3.2.5.2  Article 11 of the DSU 
5.281.  Finally, we consider two claims brought respectively by Canada and Norway under 
Article 11 of the DSU relating to the reasonable availability of the alternative measure. 
5.282.  Canada asserts a claim under Article 11 of the DSU regarding the Panel's finding that the 
alternative measure could result in an increase in the number of seals killed inhumanely. In particular, Canada argues that the Panel's finding is based on an assertion by the European Union 
that is itself a restatement of an unsupported assertion made in an amicus curiae  submission. 
According to Canada, the Panel thus found "that a stringent animal welfare standard would lead to more seals being killed inhumanely … without any evidentiary support".
1470  
5.283.  The European Union disagrees with Canada that the Panel failed to make an objective 
assessment under Article 11 of the DSU by finding th at the alternative measure could result in an 
increase in the number of inhumanely killed seals. The European Union contends that the Panel's finding "can be reasonably inferred from the Panel's findings regarding the inevitability of certain 
risks of inhumane killing arising from the conditions and circumstances of the seal hunts".
1471 
5.284.  Canada is correct that the Panel – in stating that strict certification requirements "could 
give rise to infliction of significant suffering in larger scale hunts in order to kill other seals in 
accordance with the higher standards of welfare"1472 – cited in footnote 799 of its Reports only the 
European Union's second written submission and the corresponding amicus curiae  submission.1473 
The European Union notes, however, that the Panel itself stated that this was "[a]ssessed against the backdrop of the welfare risks of seal hunting".
1474 The European Union adds that the argument 
relates to its position that there are inherent obstacles that make it impossible to kill seals 
humanely on a consistent basis, and that the European Union "submitted extensive scientific evidence and argument to the Panel in order to substantiate that position".
1475 Based on the 
evidence and argument to which the European Union refers, the Panel had been presented with 
more information relating to this argument than what it referred to in footnote 799 of its Reports. We do not consider that a panel falls into error under Article 11 of the DSU for failing to cite all of 
                                               
1469 Panel Reports, para. 7.503. 
1470 Canada's appellant's submission, para. 334. 
1471 European Union's appellee's submission, para. 291. 
1472 Panel Reports, para. 7.496. 
1473 Panel Reports, fn 799 to para. 7.496. 
1474 Panel Reports, para. 7.496. 
1475 European Union's appellee's submission, para. 286 (r eferring to European Union's response to Panel 
question No. 148; and Panel Reports, paras. 7.202, 7.206, 7.207, 7.209, 7.213, and 7.214). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  the arguments and evidence supporting a particul ar proposition. Even if the Panel made the 
reference it did to identify the source of the argument, this does not mean that there were no further arguments and evidence on the Panel record that informed the Panel's statement. Moreover, the Panel implicitly referred to the exte nsive information on the Panel record regarding 
the "welfare risks of seal hunting" in stating that it "assessed" the argument against the 
"backdrop" of those risks. This further indicates that the Panel's statement was substantiated. We therefore do not consider that this statemen t by the Panel evidences a failure to conduct an 
objective assessment under Article 11 of the DSU. 
5.285.  Norway submits that the Panel acted in violation of Article 11 of the DSU by ignoring two 
further alternative measures it had proposed duri ng the course of the Panel proceedings. First, 
Norway proposed an alternative that consisted of the removal of the restrictive conditions of the 
EU Seal Regime. Under this alternative, trade would be permitted from hunts that, under the 
measure at issue, could not meet the conditions for market access under the IC, MRM, or Travellers exceptions.
1476 The second alternative was the removal of three of the conditions for 
access to the MRM exception, namely, the not-for-profit, non-systematic, and sole purpose 
conditions, leaving all the other elements of the EU Seal Regime undisturbed. Norway maintains that this alternative could include animal welf are, certification, and labelling requirements.
1477 
According to Norway, "these alternatives were completely ignored  by the Panel".1478 In Norway's 
view, the Panel's failure to address the second alternative was "egregious"1479 since the three 
conditions were found to restrict access to the EU market. Norway considers "manifestly inadequate" the Panel's failure to assess whether Norway's proposed alternative – which excludes 
these three restrictive conditions, but adds anim al welfare requirements and labelling – could 
make an equivalent contribution to the public morals objective.
1480 
5.286.  The European Union disagrees with Norway, noting that one of these proposed alternative 
measures consisted of removing all of the requ irements of the EU Seal Regime, and "amounted 
effectively to repealing the EU Seal Regime".1481 Because Norway's proposal was premised on the 
assumption that the EU Seal Regime made no contribution to its objective, the European Union 
argues, the Panel implicitly rejected this claim. The European Union argues that, although the 
Panel did not expressly address the second alternat ive measure proposed by Norway, it is clearly 
implicit in the Panel's reasoning and findings that this alternative measure would also fail to make an equivalent contribution to the objective of the EU Seal Regime.
1482 
5.287.  The first alternative to which Norway refers appears, as the European Union maintains, to 
amount to the removal of the EU Seal Regime. This alternative rests on the factual premise that the EU Seal Regime could or does lead to worse seal welfare outcomes than those existing prior to 
the adoption of the measure. As we have explai ned, this premise was highly contested by the 
parties, was not uniformly supported by the Pane l record, and, in any event, was not found to 
exist by the Panel. The second alternative proposes removal of three of the restrictive conditions of 
the MRM exception – that is, the not-for-profit, non-systematic, and sole purpose conditions – to 
be replaced by certain animal welfare, certification, and labelling requirements. We note that the substitution of other requirements for the existing  MRM exception is critical to Norway's proposed 
alternative because, otherwise, removal of the re strictive conditions of the MRM exception would 
lead to an increase in the trade of seal produc ts with attendant consequences for the number of 
inhumanely killed seals. Norway acknowledged this  point during the Panel proceedings when it 
suggested that such requirements could be added.
1483 In that respect, what Norway proposes 
consists in part of a set of requirements similar to what the Panel actually analysed in its Reports. 
Thus, any conclusions the Panel reached regarding the likely limitations of the certification system 
                                               
1476 Norway's appellant's submission, para. 621. 
1477 Norway's appellant's submission, para. 622. 
1478 Norway's appellant's submission, para. 623. (emphasis original) 
1479 Norway's appellant's submission, para. 624. 
1480 Norway's appellant's submission, para. 625. 
1481 European Union's appellee's submission, para. 306. 
1482 European Union's appellee's submission, para. 307. 
1483 See Norway's oral statement at the second Pane l meeting, para. 77: "Norway thus disagrees that 
'enlarging' the scope of the [M]RM requirements by re moving the unnecessary conditions would undermine the 
EU's animal welfare objective. In an y event, if the EU wishes to ensure  that the [M]RM requirements do not 
undermine animal welfare, it could – as a modified version of this [M]RM alternative – allow seal products from 
[M]RM hunts that additionally  meet minimum animal welfare standards." (emphasis original) WT/DS400/AB/R • WT/DS401/AB/R 
 
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  it analysed would equally apply to a version of that system that would apply only in respect of seal 
products from MRM hunts.  
5.288.  We emphasize that a panel must consider the claims and arguments of parties in a dispute 
so as to conform with the obligation under Article 11 of the DSU to make an objective assessment 
of the matter before it. At the same time, the Appellate Body has clarified that a panel need not 
"refer explicitly to every argument made by the parties"1484 or "consider each and every argument 
put forward by the parties in support of their respec tive cases, so long as it completes an objective 
assessment".1485 We consider that, in the circumstances of this case, the additional alternatives to 
which Norway refers were in fact implicitly addressed by the Panel. With regard to the first additional alternative, we have noted that the Pa nel had grounds for not finding that the EU Seal 
Regime could or does lead to worse seal welfare outcomes than existed prior to the adoption of the 
measure. With regard to the second additional alternative, it is implicit in the Panel's reasoning 
and findings that this alternative would have failed on the same grounds as the alternative measure explicitly addressed by the Panel. Had th e Panel explicitly addressed these two additional 
proposals by Norway, we do not see that it woul d have altered the Panel's assessment of whether 
there was a reasonably available alternative measure.
1486 The Panel's analysis in our view 
contained an implicit rejection of these additional alternatives, and we therefore do not consider 
that the Panel's failure to mention these two alternatives undermined the objectivity of the Panel's 
assessment under Article 11 of the DSU. 
5.3.2.6  Conclusion 5.289.  The foregoing discussion has entailed an ex tensive assessment of the Panel's analysis of 
whether the EU Seal Regime is necessary to protect public morals within the meaning of 
Article XX(a) of the GATT 1994. We have also been called upon to consider claims and arguments by Canada and Norway that were related to the Panel's contribution analysis in the context of 
Article 2.2 of the TBT Agreement, but which the Pa nel relied on in reaching its findings under 
Article XX(a). The Panel correctly focused its analysis on the question of whether the prohibitive and permissive components of the EU Seal Regi me are necessary to protect EU public moral 
concerns. The Panel then conducted a relational analysis in which it evaluated the importance of 
the objective of addressing EU public moral concerns regarding seal welfare, the trade-restrictiveness of the EU Seal Regime, th e contribution of the EU Seal Regime to the 
objective, and whether the alternative measure proposed by the complainants was reasonably 
available.
1487 In that context, having focused on and assessed the specific claims of error advanced 
by Canada and Norway, we consider that the Panel did not err in concluding that the EU Seal Regime "is capable of making and does make some contribution" to its objective, or that it does so 
"to a certain extent". We further consider that the Panel did not err in concluding that, although 
the alternative measure was less trade restrictive than the EU Seal Regime, it was not reasonably available given inter alia the inherent animal welfare risks and challenges found to exist in seal 
hunting. Overall, in the light of the specific circum stances of this case, and the particular nature of 
the measure at issue, we have endorsed the Panel's analysis of the EU Seal Regime under Article XX(a) of the GATT 1994. 
5.290.  Accordingly, having rejected the claims on appeal by Canada and Norway as they relate to 
Article XX(a), we uphold the Panel's finding at pa ragraph 7.639 of its Reports that "the EU Seal 
Regime is provisionally deemed necessary within  the meaning of Article XX(a) of the GATT 1994". 
Since we have upheld the Panel's finding that the EU Seal Regime is provisionally justified under 
Article XX(a), we are not called upon to address the European Union's conditional other appeal 
with respect to Article XX(b).1488 
                                               
1484 Appellate Body Report, US – Upland Cotton , para. 446. 
1485 Appellate Body Report, Dominican Republic – Import  and Sale of Cigarettes , para. 125. 
1486 In EC – Fasteners (China) , the Appellate Body noted that a participant must explain why evidence 
"is so material to its case that the panel's failure explic itly to address and rely upon [it] has a bearing on the 
objectivity of the panel's assessment." (Appellate Body Report, EC – Fasteners (China) , para. 442) See also 
Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1318. 
1487 See Panel Reports, section 7.4.4.3.2. 
1488 European Union's other appellant's submission, para. 320 (referring to Panel Reports, para. 7.640). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.3.3  The chapeau of Article XX of the GATT 1994 
5.291.  Having upheld the Panel's finding that the EU Seal Regime is "necessary to protect public 
morals" within the meaning of Article XX(a) of th e GATT 1994, we now turn to review the Panel's 
analysis as it pertains to the chapeau of Article XX of the GATT 1994.  
5.292.  Article XX of the GATT 1994 reads in relevant part: 
General Exceptions 
Subject to the requirement that such measures are 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, nothing in this Agreement shall be construe d to prevent the adoption or enforcement 
by any Member of measures:  
(a) necessary to protect public morals; …  
5.293.  The Panel determined that discrimination in  the application of the EU Seal Regime within 
the meaning of the chapeau "results from th e discriminatory impact found in the IC and 
MRM exceptions under Articles I:1 and III:4".
1489 In its assessment of whether this discrimination 
is "arbitrary" or "unjustifiable" within the meaning of the chapeau of Article XX, the Panel recalled its analysis of the EU Seal Regime, in particular the distinctions drawn in the IC and 
MRM exceptions, under Article 2.1 of the TBT Agreement.
1490 Given its findings under Article 2.1 of 
the TBT Agreement that these exceptions are not designed and applied in an even-handed 
manner, the Panel found that they also do not meet the requirements of the chapeau of Article XX of the GATT 1994.
1491 
5.294.  While Canada and Norway agree with the Panel's conclusion that the EU Seal Regime does 
not meet the requirements of the chapeau of Ar ticle XX, they appeal the Panel's reasoning in 
reaching that conclusion. In particular, they allege that the Panel erred in applying the same test 
to determine the existence of arbitrary or unjus tifiable discrimination under the chapeau of 
Article XX as it had applied in determining whether the measure was inconsistent with Article 2.1 of the TBT Agreement.
1492 In addition, Canada requests the Appellate Body to reverse the Panel's 
intermediate finding that the distinction between commercial and IC hunts is "justifiable"1493, to 
complete the analysis on this specific point1494, and to find that the discrimination between 
Canadian commercial seal products and IC seal products arising from the application of the EU Seal Regime is arbitrary and unjustifiable.
1495 By contrast, the European Union requests the 
Appellate Body to reverse the Panel's conclusion that the IC exception does not meet the 
requirements of the chapeau, to complete the anal ysis, and to find instead that the IC exception 
meets the requirements of Article XX(a), including the chapeau.1496  
5.295.  We will begin by reviewing the requirem ents of the chapeau in the light of relevant 
WTO jurisprudence. Thereafter, we will address the claims on appeal in the light of our interpretation of the chapeau of Article XX.  
5.3.3.1  Interpretation of the ch apeau of Article XX of the GATT 1994 
5.296.  The chapeau of Article XX imposes additional disciplines on measures that have been found 
to violate an obligation under the GATT 1994, but that have also been found to be provisionally justified under one of the exceptions set forth in the subparagraphs of Article XX. The chapeau 
does so by requiring that measures not be "applied in a manner which would constitute a means of 
                                               
1489 Panel Reports, para. 7.648. 
1490 Panel Reports, para. 7.649. 
1491 Panel Reports, para. 7.650 (referring to Panel Reports, sections 7.3.2.3.3 and 7.3.2.3.4). 
1492 Canada's appellant's submission, paras. 447-454; Norway's appellant's submission, paras. 894-898. 
1493 Canada's appellant's submission, paras. 460-466. See also Panel Reports, para. 7.650. 
1494 Canada's appellant's submission, para. 468. 
1495 Canada's appellant's submission, paras. 455-466 and 468.  
1496 European Union's other appellant's submission, paras. 316-319.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or 
a disguised restriction on international trade".  
5.297.  The function of the chapeau of Article XX of the GATT 1994 is to prevent the abuse or 
misuse of a Member's right to invoke the exce ptions contained in the subparagraphs of that 
Article.1497 In that way, the chapeau operates to preserve the balance between a Member's right to 
invoke the exceptions of Article XX, and the rights of other Members to be protected from conduct proscribed under the GATT 1994.
1498 Achieving this equilibrium is called for "so that neither of the 
competing rights will cancel out the other and thereby distort and nullify or impair the balance of 
rights and obligations constructed by the Members themselves".1499 As the Appellate Body stated 
in US – Gasoline , the burden of demonstrating that a measure provisionally justified under one of 
the exceptions of Article XX does not constitute an abuse of such an exception under the chapeau 
rests with the party invoking the exception.1500 The Appellate Body explained that this is "a heavier 
task than that involved in showing that an exception … encompasses the measure at issue."1501 
5.298.  With respect to the type of "discriminat ion" that is at issue under the chapeau, the 
Appellate Body noted in US – Gasoline  that "[t]he provisions of the chapeau cannot logically refer 
to the same standard(s) by which a violation of a substantive rule has been determined to have occurred".
1502 A finding that a measure is inconsistent with one of the non-discrimination 
obligations of the GATT 1994, such as those contained in Articles I and III, is thus not dispositive 
of the question of whether the measure gives rise to "arbitrary or unjustifiable discrimination between countries where the same conditions prev ail" under the chapeau of Article XX of the 
GATT 1994. Moreover, "the nature and quality of this discrimination is different from the 
discrimination in the treatment of products which was already found to be inconsistent with one of 
the substantive obligations of the GATT 1994".
1503 This does not mean, however, that the 
circumstances that bring about the discrimination that is to be examined under the chapeau 
cannot be the same as those that led to the finding of a violation of a substantive provision of the 
GATT 1994.1504 
5.299.  The examination of whether a measure is applied in a manner that would constitute a 
means of "arbitrary or unjustifiable discrimination between countries where the same conditions 
prevail" necessitates an assessment of whether the "conditions" prevailing in the countries 
between which the measure allegedly discriminates are "the same". We note that the term "condition" has a number of meanings, including "a way of living or existing"; "the state of 
something"; "the physical state of something"; and "the physical or mental state of a person or 
thing".
1505 The term "conditions" could thus potentially encompass a number of circumstances 
facing a country. In order further to define and circumscribe the meaning of the term "conditions", 
the treaty interpreter should therefore seek guidan ce from the specific context in which that term 
appears in the chapeau. As we see it, only "conditions" that are relevant  for the purpose of 
establishing arbitrary or unjustifiable discrimination in the light of the specific character of the 
                                               
1497 Appellate Body Report, US – Gasoline , p. 22, DSR 1996:I, pp. 20-21.  
1498 Appellate Body Report, US – Shrimp , para. 156. 
1499 The Appellate Body, in US – Shrimp , stated that:  
The task of interpreting and applying the chapeau is, hence, essentially the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an 
exception under Article XX and the rights of the other Members under varying substantive provisions (e.g., Article XI) of the GATT 1994, so that neither of the competing rights will cancel out the other and thereby distort and nullify or impair the balance of rights and obligations 
constructed by the Members themselves in that Agreement. 
(Appellate Body Report, US – Shrimp , para. 159) 
1500 Appellate Body Report, US – Gasoline , pp. 22-23, DSR 1996:I, p. 21.  
1501 Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, p. 21. 
1502 Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, p. 21. See also Appellate Body Report, 
US – Shrimp , para. 150. 
1503 Appellate Body Report, US – Shrimp , para. 150 (referring to Appellate Body Report, US – Gasoline , 
p. 23, DSR 1996:I, p. 21). 
1504 In US – Gasoline , the Appellate Body concluded that the baseline establishment rules, which the 
panel in that dispute had found to be discriminatory under Article III:4 of the GATT 1994, also resulted in 
"unjustifiable discrimination", since certain omission s by the United States we nt "well beyond what was 
necessary for the Panel to determine that a violation of Article III:4 had occurred in the first place". (Appellate 
Body Report, US – Gasoline , pp. 28-29, DSR 1996:I, p. 27) 
1505 Merriam-Webster, available at < http://www.merriam-webster.com/dictionary/condition > (accessed 
28 April 2014). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  measure at issue and the circumstances of a particular case should be considered under the 
chapeau.1506 The question is thus whether the conditions prevailing in different countries are 
relevantly  "the same".  
5.300.  We consider that, in determining which "conditions" prevailing in different countries are 
relevant in the context of the chapeau, the subpa ragraphs of Article XX, and in particular the 
subparagraph under which a measure has been provis ionally justified, provide pertinent context. 
In other words, "conditions" relating to the particular policy objective under the applicable 
subparagraph are relevant for the analysis under the chapeau. Subject to the particular nature of 
the measure and the specific circumstances of the case, the provisions of the GATT 1994 with 
which a measure has been found to be inconsistent may also provide useful guidance on the question of which "conditions" prevailing in different countries are relevant in the context of the 
chapeau. In particular, the type or cause of the violation that has been found to exist may inform 
the determination of which countries should be compared with respect to the conditions that prevail in them.
1507 
5.301.  We recall that the function of the chap eau is to maintain the equilibrium between the 
obligations under the GATT 1994 and the except ions provided under each subparagraph of 
Article XX. This also lends support to our view that the identification of the relevant "conditions" 
under the chapeau should be understood by reference to the applicable subparagraph of Article XX 
under which the measure was provisionally justified and the substantive obligations under the GATT 1994 with which a violation has been found. If a respondent considers that the conditions prevailing in different countries are not "the same" in relevant respects, it bears the burden of 
proving that claim. 
5.302.  By its terms, the chapeau of Article XX is concerned with the "manner" in which a measure 
that falls under one of the subpara graphs of Article XX is "applied".
1508 Although this suggests that 
the focus of the inquiry is on the manner in which the measure is applied , the Appellate Body has 
noted that whether a measure is applied  in a particular manner "can most often be discerned from 
the design, the architecture, and the revealing structure of a measure".1509 It is thus relevant to 
consider the design, architecture, and revealing structure of a measure in order to establish 
whether the measure, in its actual or expected application, constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail. This involves a consideration of "both substantive and procedural requirements" under the measure at issue.
1510 
5.303.  We recall that the Appellate Body has already observed, in US – Shrimp , that 
discrimination within the meaning of the chapeau of Article XX "results … when countries in which the same conditions prevail are differently treated".
1511 Where this is the case, a panel should 
analyse whether the resulting discrimination is "arbitrary or unjustifiable". The Appellate Body has 
explained that the analysis of whether discrimination is arbitrary or unjustifiable within the meaning of the chapeau "should focus on the caus e of the discrimination, or the rationale put 
forward to explain its existence".
1512 
5.304.  In US – Gasoline , the Appellate Body assessed the two explanations provided by the 
United States for the discrimination resulting from the application of the baseline establishment rules at issue.
1513 The first explanation provided by the Un ited States for such discrimination was 
the impracticability of verification and enforcem ent of individual baselines for foreign refiners. 
While the Appellate Body accepted that the anticipated difficulties concerning verification and 
                                               
1506 See also the Appellate Body report in US – Shrimp , where the Appellate Body noted that the 
"standards established in the chapea u are … necessarily broad in scope an d reach", and that, "[w]hen applied 
in a particular case, the actual contours and contents of  these standards will vary as the kind of measure under 
examination varies." (A ppellate Body Report, US – Shrimp , para. 120) 
1507 See Appellate Body Report, US – Gasoline , p. 23-24, DSR 1996:I, pp. 21-22; and Appellate Body 
Report, US – Shrimp , para. 150. 
1508 See also Appellate Body Reports, US – Gasoline , p. 22, DSR 1996:I, p. 20; US – Shrimp , para. 115; 
and Brazil – Retreaded Tyres , para. 215. 
1509 Appellate Body Report, Japan – Alcoholic Beverages II , p. 29, DSR 1996:I, p. 120. 
1510 Appellate Body Report, US – Shrimp , para. 160. 
1511 Appellate Body Report, US – Shrimp , para. 165. 
1512 Appellate Body Report, Brazil – Retreaded Tyres , para. 226 (referring to Appellate Body Reports, 
US – Gasoline ; US – Shrimp ; and US – Shrimp (Article 21.5 – Malaysia) ).  
1513 See supra , para. 5.191 for background on the US – Gasoline  dispute. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  enforcement with respect to foreign refiners were "doubtless real to some degree"1514, it noted 
that the United States "had not pursued the possibi lity of entering into cooperative arrangements 
with the governments of Venezuela and Brazil or, if  it had, not to the point where it encountered 
governments that were unwilling to cooperate".1515 Second, the United States explained that 
imposing the statutory baseline requirement on domestic refiners was not an option either, 
because it was not feasible to require domestic refiners to incur the physical and financial costs and burdens entailed by immediate compliance with a statutory baseline. The Appellate Body 
observed that, while the United States counted the costs for its domestic refiners, there was 
"nothing in the record to indicate that it did other than disregard that kind of consideration when it came to foreign refiners".
1516 
5.305.  In US – Shrimp , the Appellate Body relied on a number of factors in finding that the 
measure at issue resulted in arbitrary or unjustifiable discrimination.1517 These factors included the 
fact that the discrimination resulted from: (i) a "rigid and unbending requirement" that countries exporting shrimp into the United States must adopt a regulatory programme that is essentially the 
same as the United States' programme
1518; (ii) the fact that the discrimination resulted from the 
failure to take into account different circumstances that may occur in the territories of other WTO Members, in particular, specific policies and measures other than those applied by the 
United States that might have been adopted by an exporting country for the protection and 
conservation of sea turtles
1519; and (iii) the fact that, while the United States negotiated seriously 
with some WTO Members exporting shrimp into the United States for the purpose of concluding international agreements for the protection and conservation of sea turtles, it did not do so with 
other WTO Members.
1520 A s  t h e  A p p e l l a t e  B o d y  s t a t e d  i n  Brazil – Retreaded Tyres , "[t]he 
assessment of these factors … was part of an analysis that was directed at the cause, or the rationale, of the discrimination."
1521 
5.306.  One of the most important factors in the assessment of arbitrary or unjustifiable 
discrimination is the question of whether the discrimination can be reconciled with, or is rationally related to, the policy objective with respect to which the measure has been provisionally justified 
under one of the subparagraphs of Article XX.
1522 In Brazil – Retreaded Tyres , the Appellate Body 
considered this factor particularly relevant in assessing the merits of the explanations provided by the respondent as to the cause of the discrimin ation. As the Appellate Body stated, it had 
"difficulty understanding how discrimination might be viewed as complying with the chapeau of 
Article XX when the alleged rationale for discriminating does not relate to the pursuit of or would 
go against the objective that was provisionally found to justify a measure under a paragraph of Article XX".
1523 In US – Shrimp , the Appellate Body considered this factor as one element in a 
"cumulative" assessment of "unjustifiable discrimination".1524 
                                               
1514 Appellate Body Report, US – Gasoline , p. 26, DSR 1996:I, p. 24. 
1515 Appellate Body Report, US – Gasoline , p. 27, DSR 1996:I, pp. 25-26.  
1516 Appellate Body Report, US – Gasoline , p. 28, DSR 1996:I, p. 27. 
1517 See also Appellate Body Report, Brazil – Retreaded Tyres , para. 225: "In US – Shrimp , the Appellate 
Body relied on a number of factors in finding that the measure at issue resulted in  arbitrary or unjustifiable 
discrimination." 
1518 Appellate Body Report, US – Shrimp , para. 177; see also ibid., para. 163. 
1519 Appellate Body Report, US – Shrimp , paras. 163 and 164. 
1520 Appellate Body Report, US – Shrimp , paras. 166 and 172. 
1521 Appellate Body Report, Brazil – Retreaded Tyres , para. 225 (referring to Appellate Body Report, 
US – Shrimp , paras. 163-166, 172, and 177). 
1522 See Appellate Body Reports, US – Shrimp , para. 165; and Brazil – Retreaded Tyres , paras. 227, 
228, and 232.  
1523 Appellate Body Report, Brazil – Retreaded Tyres , para. 227. 
1524 Appellate Body Report, US – Shrimp , para. 176. The Appellate Body highlighted that the measure 
treated " shrimp caught using methods identical to those employed in the United States " differently from 
shrimp caught in the United States or other certified co untries "solely because they have been caught in waters 
of countries that have not been certified by the United States " – a situation that the Appellate Body found 
"difficult to reconcile with the declared policy object ive of protecting and conserving sea turtles". (Ibid., 
para. 165 (emphasis original)) See also Appellate Body Report, Brazil – Retreaded Tyres , para. 225 and fn 431 
thereto. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  5.3.3.2  Canada's and Norway's claims on appeal regarding the Panel's reasoning under 
the chapeau of Article XX of the GATT 1994 
5.307.  We recall that, in determining whether the discrimination under the EU Seal Regime is 
"arbitrary" or "unjustifiable" within the meaning of  the chapeau of Article XX, the Panel relied on 
its findings under Article 2.1 of the TBT Agreement.1525 Based on its findings under Article 2.1 of 
the TBT Agreement that the IC and MRM exceptions  under the EU Seal Regime are not designed 
and applied in an even-handed manner, the Pa nel found that they also do not meet the 
requirements of the chapeau of Article XX of the GATT 1994.1526 
5.308.  Neither Canada nor Norway appeal the Panel's ultimate conclusion under the chapeau of 
Article XX that the "IC exception and the MRM exception … fail to meet the requirements under the chapeau".
1527 Instead, Canada and Norway take issue wi th the Panel's reasoning in reaching this 
conclusion.1528 In particular, they allege that the Panel erred in applying the same test to 
determine the existence of arbitrary or unjustifiab le discrimination under the chapeau of Article XX 
as it applied in determining whether the measure was inconsistent with Article 2.1 of the 
TBT Agreement.1529 Canada and Norway submit that the sco pe, content, and text of the chapeau 
of Article XX of the GATT 1994 and Article 2.1 of the TBT Agreement (read together with the sixth 
preambular recital thereto) are not the same. Cana da argues that the Panel "failed to adequately 
explain" why its analysis under Article 2.1 was relevant and applicable to its assessment of the 
legal standard under the chapeau of Article XX.1530 Norway similarly asserts that "a panel must be 
faithful to the independence of the analysis to be conducted under each Agreement."1531 Second, 
according to the complainants, the Panel's "three-step test" in the context of its "legitimate 
regulatory distinction" analysis under Article 2.11532 i s  a t  o d d s  w i t h  t h e  t e x t  o f  t h e  c h a p e a u  o f  
Article XX, as well as with well-accepted jurisprudence regarding the proper analysis of "arbitrary or unjustifiable discrimination" under the chapeau.
1533 Specifically, both complainants take issue 
with the Panel's substitution of its three-step "legitimate regulatory distinction" test under 
Article 2.1 for the proper test under the chapeau of Article XX developed by the Appellate Body in Brazil – Retreaded Tyres , which, the complainants assert, requires an assessment of whether the 
discrimination at issue is "rationally connected" to the objective of the measure.
1534  
5.309.  The European Union responds that the requirement that the reasons for discrimination be 
rationally connected to the policy objective of th e measure is not reflected in the text of the 
chapeau or in past Appellate Body jurisprudence.1535 While the European Union agrees that 
determining whether the discrimination at issue is "arbitrary or unjustifiable" usually involves an 
investigation of the reason underlying the discrimination, in its view, investigating the cause underlying the discrimination is not necessarily limited to determining whether such cause is 
rationally connected to the objective of measure, and, as reflected in prior Appellate Body 
jurisprudence, may involve the consideration of other factors.
1536 According to the European Union, 
this is supported by Brazil – Retreaded Tyres , as, in that case, the Appellate Body merely found 
                                               
1525 Panel Reports, paras. 7.649 and 7.650. 
1526 Panel Reports, para. 7.650 (referring to ibid., sections 7.3.2.3.3 and 7.3.2.3.4). 
1527 Canada Panel Report (DS400), para. 8.3(d); Norway Panel Report (DS401), para. 8.3(d). 
1528 Canada's appellant's submission, para. 436; Norway's appellant's submission, para. 892. 
1529 Canada's appellant's submission, paras. 447-454; Norway's appellant's submission, paras. 894-898. 
1530 Canada's appellant's submission, para. 450 (referring to Panel Reports, para. 7.649). 
1531 Norway's appellant's submission, para. 897. 
1532 See Panel Reports, para. 7.259. The Panel found that: 
[T]he legitimacy of the regulatory distinction between commercial hunts and IC hunts should be determined by examining the following questions: first, is the distinction rationally connected to the objective of the EU Seal Regime; second, if not, is there any cause or rationale that can justify the distinction (i.e. "explain the existence of the distinction") despite the absence of the connection to the objective of the Regime, taking into account the particular circumstances of the current dispute; and, third, is the distinction co ncerned, as reflected in the measure, "designed 
or applied in a manner that constitutes arbitrary or  unjustifiable discrimination" such that it lacks 
"even-handedness".  
(Ibid. (fns omitted)) 
1533 Canada's appellant's submission, paras. 452, 453, and 457; Norway's appellant's submission, 
paras. 898 and 905-926.  
1534 Canada's appellant's submission, paras. 437,  and 455-459; Norway's appellant's submission, 
paras. 904-927.  
1535 European Union's appellee's submission, paras. 443-447. 
1536 European Union's appellee's submission, paras. 448-456. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  that, under the specific circumstances of that individual case, the MERCOSUR arbitral ruling was 
"not an acceptable rationale for the discrimination, because it bears no relationship to the legitimate objective pursued by the Import Ban th at falls within the purview of Article XX(b), and 
even goes against this objective".
1537 
5.310.  We consider that the Panel should have provided more explanation as to why and how its 
analysis under Article 2.1 of the TBT Agreement was "relevant and applicable" to the analysis 
under the chapeau of Article XX of the GATT 1994.1538 We recognize that there are important 
parallels between the analyses under Article 2.1 of the TBT Agreement and the chapeau of 
Article XX. In particular, we note that the concepts of "arbitrary or unjustifiable discrimination between countries where the same conditions prevail"  and of a "disguised restriction on trade" are 
found both in the chapeau of Article XX of the GA TT 1994 and in the sixth recital of the preamble 
of the TBT Agreement, which the Appellate Body has recognized as providing relevant context for 
Article 2.1 of the TBT Agreement.
1539 Moreover, both Article 2.1 and the chapeau of Article XX do 
not "operate to prohibit a priori any obstacle to international trade".1540 Instead, as interpreted by 
the Appellate Body, Article 2.1 "permit[s] detrim ental impact on competitive opportunities for 
imports that stems exclusively from legitimate regulatory distinctions"1541, while under the 
chapeau of Article XX, discrimination is permitted if it is not arbitrary or unjustifiable. 
5.311.  However, there are significant differences between the analyses under Article 2.1 of the 
TBT Agreement and the chapeau of Article XX of the GATT 1994. First, the legal standards 
applicable under the two provisions differ. Under Article 2.1 of the TBT Agreement, a panel has to 
examine whether the detrimental impact that a measure has on imported products stems 
exclusively from a legitimate regulatory distinction rather than reflecting discrimination  against the 
group of imported products.1542 Under the chapeau of Article XX, by contrast, the question is 
whether a measure is applied in a manner that would constitute a means of arbitrary or 
unjustifiable discrimination  between countries where the same conditions prevail.1543 
5.312.  Another important difference between Article 2.1 and the chapeau of Article XX relates to 
their main function and scope. Article 2.1 is a non-discrimination provision in respect of technical 
regulations. Consequently, in the context of Article 2.1, it is only the regulatory distinction that 
accounts for the detrimental impact on imported products that is to be examined to determine whether it is "a legitimate regulatory distinction".
1544 By contrast, the function of the chapeau of 
Article XX is to maintain a balance between a Member's right to invoke the exceptions  under the 
subparagraphs of Article XX and the substantive rights of the other Members under the various 
other provisions of the GATT 1994.1545 Indeed, a measure can be found to be applied in a manner 
that would constitute a means of arbitrary or unjustifiable discrimination under the chapeau on 
grounds that are not necessarily the same in their "nature and quality" as the discrimination which 
was found to be inconsistent with the non-discr imination obligations of the GATT 1994, such as 
Articles I and III.1546  
5.313.  Given these differences between the inquir ies under Article 2.1 of the TBT Agreement and 
the chapeau of Article XX of the GATT 1994, we find  that the Panel erred in applying the same 
legal test to the chapeau of Article XX as it applied under Article 2.1 of the TBT Agreement, instead 
of conducting an independent analysis of the cons istency of the EU Seal Regime with the specific 
terms and requirements of the chapeau.1547 We therefore reverse the Panel's finding, in 
paragraph 7.651 of the Panel Reports, that the European Union has failed to establish that the                                                
1537 European Union's appellee's submission, para. 451 (quoting Appellate Body Report, Brazil – 
Retreaded Tyres , para. 228).  
1538 See Panel Reports, para. 7.649.  
1539 Appellate Body Reports, US – Clove Cigarettes , para. 173; and US – Tuna II (Mexico) , para. 213. 
1540 Appellate Body Report, US – Clove Cigarettes , para. 171.  
1541 Appellate Body Report, US – Clove Cigarettes , para. 175. 
1542 Appellate Body Report, US – Clove Cigarettes , paras. 182 and 215. 
1543 We note the Appellate Body's statement, in US – COOL , that a regulatory distinction that is designed 
or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination cannot be considered "legitimate", and that any detrimental impact  stemming from such a dist inction will hence reflect 
discrimination prohibited under Arti cle 2.1. (Appellate  Body Reports, US – COOL , para. 271) 
1544 Appellate Body Report, US – Tuna II (Mexico) , paras. 284 and 286. 
1545 Appellate Body Report, US – Shrimp , para. 156. 
1546 Appellate Body Report, US – Shrimp , para. 150 (referring to Appellate Body Report, US – Gasoline , 
p. 23, DSR 1996:I, p. 21). 
1547 Panel Reports, para. 7.649. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  discriminatory impact found in the IC and MRM exceptions under the EU Seal Regime is justified 
under Article XX(a) of the GATT 1994. We also reverse the intermediate legal findings that the 
Panel made in the context of the chapeau of Article XX of the GATT 1994 on the basis of its 
analysis under Article 2.1 of the TBT Agreement, given that the Panel reached these intermediate 
findings on the basis of a legal test that it should not have applied under the chapeau of 
Article XX.1548  
5.314.  It follows that we do not need to address the arguments on appeal as far as they relate to 
these findings. In particular, we do not need to address the European Union's appeal of the Panel's 
finding that "the IC distinction does not bear a rational relationship to the objective of addressing the moral concerns of the public on seal welfare"
1549, nor the related claim under Article 11 of the 
DSU, given that the Panel made this finding in th e context of its analysis under Article 2.1 of the 
TBT Agreement. For the same reasons, we do not need to address Canada's appeal of the Panel's 
finding that the distinction between commercial and IC hunts is nevertheless justified, nor Canada's related claim under Article 11 of the DSU.
1550  
5.315.  In the following, we complete the analysis under the chapeau of Article XX of the 
GATT 1994 to the extent that we are able to do so on the basis of factual findings by the Panel and 
uncontested facts on the Panel record.  
5.3.3.3  Whether the EU Seal Regime m eets the requirements of the chapeau of 
Article XX of the GATT 1994 
5.316.  The discrimination that the Panel found und er Article I:1 of the GATT 1994 arises from the 
different regulatory treatment that the measure accords to seal products derived from 
"commercial" hunts, on the one hand, as compared to seal products derived from IC hunts, on the 
other hand, in combination with the fact that seal hunts in Canada and Norway are primarily "commercial" hunts, whereas seal hunts in Greenland are predominantly IC hunts.
1551 As noted 
above, the circumstances that bring about the discrimination within the meaning of the chapeau 
may include, but are not limited to, the circumstances that led to the finding of a violation of a substantive provision of the GATT 1994. In completing the analysis under the chapeau, we will first 
examine whether the different regulatory treatmen t that the EU Seal Regime accords to seal 
products derived from IC hunts as compared to "commercial" hunts constitutes "arbitrary or unjustifiable discrimination". In addition, we will analyse whether the measure has any discriminatory effects on different indigenous communities and whether any such effects amount 
to arbitrary or unjustifiable discrimination.  
5.317.  As noted above, the analysis under the chapeau of Article XX of the GATT 1994 entails an 
assessment of whether the "conditions" prevailing in the countries between which the measure 
allegedly discriminates are "the same". We furthe r found that, in conducting this assessment, the 
subparagraph under which a measure has been provisionally justified, as well as the provision of the GATT with which a measure has been found to be inconsistent, provide important context. In 
the circumstances of the present case, we do not consider that the European Union has shown that 
the "conditions" prevailing in Canada and Norw ay, on the one hand, and Greenland, on the other 
hand, are relevantly different. In particular, the European Union does not appear to contest Norway's claim that "the same animal welfare conditions prevail in all countries where seals are 
hunted"
1552, nor has the European Union appealed the Panel's finding that "the same animal 
welfare concerns as those arising from seal hunting in general also exist in IC hunts".1553 We also 
do not understand the European Union to have argued that the differences in the identity of the 
hunter or in the purpose of seal hunts that the Panel found to exist between "commercial" and 
IC hunts would render the conditions in Canada and Norway, on the one hand, and Greenland, on the other hand, relevantly different. Finally, while the European Union has pointed to "the different 
                                               
1548 Panel Reports, para. 7.650. 
1549 Panel Reports, para. 7.275. 
1550 Panel Reports, para. 7.300.  
1551 Panel Reports, paras. 7.159-7.164, 7.170, and 7.600.  
1552 Panel Reports, fn 442 to para. 7.276 (referring to Norway's first written submission to the Panel, 
para. 680 and fn 980 thereto, in turn referring to Europe an Food Safety Authority, "Scientific Opinion of the 
Panel on Animal Health and Welfare on a request from the Commission on the Animal Welfare aspects of the 
killing and skinning of seals", The EFSA Journal  (2007), No. 610, pp. 1-122 (Panel Exhibit JE-22) (EFSA 
Scientific Opinion), p. 13). 
1553 Panel Reports, para. 7.275.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  level of development in the organisation of th e marketing structures achieved by the Inuit 
communities in Greenland as compared to the Canadian Inuit communities"1554, the 
European Union has not, in our view, sufficiently explained how these differences would render the conditions prevailing in Canada and Greenland different in a respect that would be relevant under 
the chapeau. Given that the European Union has not shown that the conditions prevailing in 
Canada and Norway, on the one hand, and Greenland, on the other hand, are relevantly different, we proceed on the basis that the conditions prevailing in these countries are "the same" for the 
purposes of the chapeau.  
5.318.  We consider that, in the present case, th e causes of the "discrimination" found to exist 
under Article I:1 of the GATT 1994 are the same as those to be examined under the chapeau. We also note that this is not disputed by the participants. We therefore turn to examine whether such 
discrimination is "arbitrary or unjustifiable" within the meaning of the chapeau. As noted above, 
one of the most important factors in the assessment of arbitrary or unjustifiable discrimination is the question of whether the discrimination can be reconciled with, or is rationally related to, the 
policy objective with respect to which the measure has been provisionally justified under one of 
the subparagraphs of Article XX. We therefore be gin our analysis with Canada's and Norway's 
claim that the EU Seal Regime results in arbitrary or unjustifiable discrimination because it 
discriminates on a basis that does not have a "rational relationship" with the objective of the 
measure or goes against that objective.
1555  
5.319.  We recall that the objective of the EU Seal  Regime is to address EU public moral concerns 
regarding seal welfare.1556 In pursuit of this objective, the EU Seal Regime bans the importation 
and placing on the market of seal products derive d from "commercial" hunts, while it allows the 
importation of seal products derived from hunts that satisfy certain criteria relating to the identity of the hunter, the purpose of the hunt, and the use of by-products from the hunt. The 
complainants allege, and the European Union does not dispute, that these criteria are not related 
to the welfare of seals. The complainants theref ore submit that there is a rational disconnect 
between the IC exception and the objective of the EU Seal Regime, and that the IC exception even 
goes against that objective.
1557 Essentially, the complainants' arguments go to the manner in 
which the EU Seal Regime pursues its objective in the context of IC hunts as compared to "commercial" hunts. In response, the European Union submits that it exempts seal products derived from hunts conducted by Inuit and other indigenous peoples from the ban on the 
importation and placing on the market of seal products in order to mitigate the adverse effects on 
those communities resulting from the EU Seal Re gime to the extent compatible with the main 
objective of addressing the public moral conc erns with regard to the welfare of seals.
1558  
5.320.  The first relevant question before us is thus whether the European Union has sufficiently 
explained how the manner in which the EU Seal Regime treats IC hunts as compared to "commercial" hunts can be reconciled with, or is related to, the policy objective of addressing 
EU public moral concerns regarding seal welfare. We note that the different regulatory treatment 
of IC hunts, as compared to "commercial" hunts, takes the form of a significant carve-out of the 
former from the measure's ban on seal products. The European Union has sought to explain why it decided not to impose the ban on the importation and placing on the market of seal products 
derived from IC hunts. Yet, the European Union has failed to demonstrate, in our view, how the 
discrimination resulting from the manner in which the EU Seal Regime treats IC hunts as compared to "commercial" hunts can be reconciled with, or is related to, the policy objective of 
addressing EU public moral concerns regarding seal  welfare. In this connection, we note that the 
European Union has not established, for example, why the need to protect the economic and social interests of the Inuit and other indigenous peoples necessarily implies that the European Union 
cannot do anything further to ensure that the welfare of seals is addressed in the context of 
                                               
1554 European Union's appellant's submission, para. 203.  
1555 Canada's appellant's submission, para. 468; Norw ay's appellant's submission, paras. 904, 929, 930, 
and 932. We note that Canada advances this claim in the context of its appeal under Article 2.1 of the TBT Agreement and the chapeau of Article XX, while Norway  makes this argument in the context of its appeal 
under the chapeau of Article XX. 
1556 In section 5.3.1 above, we considered that the principal objective of the EU Seal Regime is to 
address EU public moral concerns regarding se al welfare, while acco mmodating IC and other  interests so as to 
mitigate the impact of the measure on those interests. 
1557 Canada's appellant's submission, para. 468; Norway 's appellant's submission, paras. 904, 929, 930, 
and 932. 
1558 European Union's appellee's submission, para. 142. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  IC hunts, given that "IC hunts can cause the very pain and suffering for seals that the EU public is 
concerned about."1559 
5.321.  As noted above, the relationship of the discrimination to the objective of a measure is one 
of the most important factors, but not the sole test , that is relevant to the assessment of arbitrary 
or unjustifiable discrimination.1560 In other words, depending on the nature of the measure at issue 
and the circumstances of the case at hand, there could be additional factors that may also be relevant to that overall assessment. In this connection, we note that the European Union argues 
that only seal products derived from hunts conducted by Inuit communities for subsistence 
purposes can benefit from the exception.
1561 We therefore now turn to examine whether the 
specific criteria of the IC exception are designed and applied in a manner that would render arbitrary or unjustifiable the different regulatory treatment of seal products derived from IC hunts 
as compared to seal products de rived from "commercial" hunts.  
5.322.  We recall that the IC exception is set out in Article 3(1) of the Basic Regulation, which 
provides that "[t]he placing on the market of se al products shall be allowed only where the seal 
products result from hunts traditionally conducted by Inuit and other indigenous communities and 
contribute to their subsistence. These conditions shall apply at the time or point of import for imported products". This provision is implemented by Article 3(1) of the Implementing Regulation, 
which requires that, in order to qualify for the IC hunts category, seal products must originate 
from seal hunts that satisfy the following three conditions: 
a. seal hunts conducted by Inuit or other indigenous communities which have a tradition of 
seal hunting in the community and in the geographical region; 
b. seal hunts the products of which are at least partly used, consumed or processed within 
the communities according to their traditions; and 
c. seal hunts which contribute to the subsistence of the community. 
5.323.  With respect to these criteria, we note the Panel's finding that:  
[T]he requirements of the IC exception are generally linked to the characteristics of 
IC hunts as discussed above, particularly in terms of the identity of the hunter with a 
tradition of seal hunting, the use of by-products from the hunted seals, and the 
contribution of the hunts to the subsistence of the community.
1562 
5.324.  The Panel also noted, however, that the "scope and meaning of the 'subsistence' criterion" 
of the IC requirements "is not defined under the measure".1563 The Panel had earlier found that 
"the subsistence purpose of IC hunts encompasses not only direct use and consumption of 
by-products of the hunted seals as part of their culture and tradition, but also a commercial component, to the extent that Inuit or indigenous  communities also exchange some by-products of 
the hunted seals for economic gain."
1564 The Panel further found this commercial aspect of 
IC hunts to be related more to the "need [of Inuit communities] to adjust to modern society rather than to continuing their cultural heritage of bartering".
1565 For the Panel, the commercial aspect of 
IC hunts "resembles the purpose of commercial hunts, which is to earn income (and make profits) 
                                               
1559 Panel Reports, para. 7.275. We note that the European Union submitted before the Panel that "[t]he 
Complainants have not offered any indication of how anim al welfare could be improved in the hunts within the 
scope of the IC exception without at the same time endangering the subsistence of the Inuit and the preservation of their cultural identity." (European Unio n's response to Panel question No. 8, para. 24) Canada 
responded that "the onus is not on the complainants to offer solutions to enable Greenlandic sealers to improve animal welfare standards without putting at risk the subsistence of the Inuit and the preservation of their cultural identity." (Panel Reports, para. 7.294 (quoti ng Canada's second written submission to the Panel, 
para. 251))  
1560 We recall again that, in  US – Shrimp , the Appellate Body considered this factor as one element in a 
"cumulative" assessment of "unjustifiable discrimination". (Appellate Body Report, US – Shrimp , paras. 165 
and 176)  
1561 European Union's other appellant's submission, paras. 182 and 188.  
1562 Panel Reports, para. 7.308.  
1563 Panel Reports, para. 7.308. See also ibid., paras. 7.283-7.289.  
1564 Panel Reports, para. 7.288.  
1565 Panel Reports, para. 7.287.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  by selling by-products of the hunted seals".1566 The Panel thus identified a degree of overlap 
between the purposes of "commercial" and IC hunts, while at the same time maintaining that "[t]he commercial aspect of IC hunts is … not the same in its extent as that associated with commercial hunts".
1567 The European Union has not contested that IC hunts also have a 
commercial aspect. As we see it, the lack of a precise definition of the subsistence criterion 
introduces a degree of ambiguity into the requir ements for the IC exception under the EU Seal 
Regime.  
5.325.  We see similar ambiguities with respect to the "partial use" criterion, pursuant to which 
seal products must be "at least partly used, consumed or processed within the communities according to their traditions". The assessment of whether this criterion is fulfilled may be straightforward when it comes to the products of a single hunt, or where there are relatively stable 
patterns in the use of seal products, as appears to be the case in Greenland, where skins are the 
only parts of the seal that are currently traded on a significant scale. However, the ambiguity in the notion of "partial use" arises when it is applied on an aggregate basis. In response to 
questioning at the oral hearing, the European Union could not confirm whether the "partial use" 
criterion is administered and enforced with respect to each individual seal, with respect to each seal hunt, or with respect to the catch of an entire season.
1568 It is therefore not clear with respect 
to what benchmark the requirement that seal products be at least partly used, consumed, or 
processed in the community, is to be understood. We are concerned that, where conformity with 
the "partial use" criterion is not assessed with respect to individual seals but rather with respect to individual hunters over an extended period of ti me (e.g. through licensing conditions), or with 
respect to all hunters active in a particular area or even all members of an Inuit community, a 
substantial proportion of seal products that, wh en considered individually, might not conform to 
the "partial use" criterion (either because the hunter has commercialized the entire seal or 
because the non-commercialized parts of the seal have been disposed of rather than used) could 
potentially qualify for the IC exception. We consider that the ambiguity in the notion of "partial use" compounds the ambiguity of the "subsistence" criterion, with which it applies cumulatively, 
and thereby aggravates the overall vagueness of the IC requirements. 
5.326.  Given these significant ambiguities and the broad discretion in the application of the 
IC requirements, we are troubled by the European Union's position that, once a seal hunt has been classified as an IC hunt, the degree of commercialization is "irrelevant".
1569 I n  p a r t i c u l a r  w i t h  
regard to borderline cases, the "subsistence" and "partial use" criteria would appear to call for, if 
not continuous, at least regular reassessments, at a sufficiently disaggregated level, of whether the requirements of the IC exception are fulfilled.
1570 We note in this regard that the evaluation of 
whether a given seal product complies with the requirements of the IC exception is left entirely to 
the "recognized bodies" designated pursuant to Article 6 of the Implementing Regulation. Given 
the ambiguities that can arise with respect to at least two elements of the IC requirements, the 
recognized bodies would appear to enjoy broad discretion in applying the IC requirements, which 
could allow for instances of abuse of the IC exceptio n, even where the recognized body is acting in 
good faith. Depending on how strictly the IC requirements are applied, seal products derived from what should in fact be properly characterized as "commercial" hunts could thus enter the 
EU market under the IC exception in some instances. As we see it, the European Union has not 
sufficiently explained how such instances can be prevented in the application of the IC exception. 
5.327.  It appears to us, in particular, that the criteria for recognized body status set out in 
Article 6 of the Implementing Regulation are not suffi ciently precise to ensure that the "partial use" 
                                               
1566 Panel Reports, para. 7.287.  
1567 Panel Reports, para. 7.288.  
1568 At the oral hearing, the European Union pointed out that this assessment would be left to the 
"recognized body" designated pursuant to Article 6 of the Implementing Regulation. The European Union 
highlighted that the Implementing Re gulation provides for the auditing of "recognized bodies". (European 
Union's responses to questioning at the oral hearing) 
1569 European Union's other appellant's submission, paras. 207 and 208; European Union's appellee's 
submission, para. 103.  
1570 It appears to us that, in certain cases, the only requirement of the IC exce ption that is effectively 
enforced might be the requ irement regarding the identity of the hunter, whereas the other two requirements 
would be presumed to be fulfilled where the hunter is an  Inuit, even if the hunt was highly commercialized. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  criterion is assessed at a sufficiently disaggregated level.1571 Moreover, while the recognized body 
is subject to "independent third party audit" pu rsuant to Article 6(1)(g) of the Implementing 
Regulation, it is not clear how the auditor would be able reliably to assess whether the recognized body has diligently applied the criteria of the IC exception, especially given the ambiguities that 
can arise with respect to at least two of them, that is, the "subsistence" and "partial use" 
requirements. We note, in this regard, that the MRM and Travellers exceptions contain anti-circumvention clauses that would allow the denial of entry of seal products that, while 
formally compliant with the exception, appear  to be outside the scope of the exception.
1572 The 
IC exception contains no such anti-circumvention clause. We recall in this respect that the primary purpose of the chapeau of Article XX is to preven t the abuse or misuse of the exceptions in the 
subparagraphs of Article XX.
1573 We note that the Appellate Body in US – Shrimp  criticised the 
certification processes followed by the United States as being "singularly informal and casual", and 
as being "conducted in a manner such that these processes could result in the negation of rights of Members".
1574 
5.328.  In US – Shrimp , the Appellate Body was concerned that there appeared to be "no way that 
exporting Members can be certain" whether the relevant provisions and guidelines were "being applied in a fair and just manner by the appropriate governmental agencies of the 
United States".
1575 We have similar concerns with regard to the process for the issuing of attesting 
documents by recognized bodies pursuant to Articles 6, 71576, and 91577 of the Implementing 
                                               
1571 Article 6 of the Implementing Regu lation reads, in relevant part: 
Article 6 
1. An entity shall be included in a list of recogn ised bodies where it demonstrates that it fulfils 
the following requirements:  (a) it has legal personality;  (b) it has the capacity to ascertain that the requirements of Article 3 or 5 are met;  (c) it has the capacity to issue and manage atte sting documents referred to  in Article 7(1), as 
well as process and archive records;  (d) it has the ability to carry out its functions in  a manner that avoids conflict of interest;  
(e) it has the ability to monitor compliance with the requirements set out in Articles 3 and 5;  (f) it has the capacity to withdraw attesting do cuments referred to in Article 7(1) or suspend 
their validity in case of non- compliance with the requirements of this Regulation, and to take 
measures to inform competent authorities and cu stoms authorities of Member States thereof;  
(g) it is subject to an independent third party audit;  (h) it operates at national or regional level. 
1572 See Basic Regulation, Article 3(2), which stipulates that the "nature and quantity" of seal products 
that are imported or place on the ma rket under the Travellers and MRM exce ptions "shall not be such as to 
indicate that they are" imported or placed on the market "for commercial reas ons". Article 3(2) further 
stipulates that "[t]he application of this paragraph sha ll not undermine the achievement of the objective of this 
Regulation". 
1573 See supra , para. 5.297. 
1574 Appellate Body Report, US – Shrimp , para. 181.  
1575 Appellate Body Report, US – Shrimp , para. 181.  
1576 Article 7 of the Implementing Regu lation reads, in relevant part: 
Article 7  
1. Upon request, where the requirements for placin g on the market set out in Article 3(1) or 5(1) 
are met, a recognised body shall issue an attesting document conforming to the models set out in the Annex.  2. The recognised body shall de liver the attesting document to the applicant and shall keep a 
copy for three years for record-keeping purposes. 
… 
7. In case of doubts relating to the authenticity  or correctness of an attesting document issued in 
accordance with paragraph 1 as well as when furt her advice is required, the customs authorities 
and other enforcement officers shall contact the competent authorities designated by the Member State concerned in accordance with Articl e 9. The competent authorities shall decide on 
the measures to be taken. 
1577 Article 9 of the Implementing Regu lation reads, in relevant part: 
Article 9  
1. Each Member State shall designate one or several competent authorities responsible for the following tasks:  (a) verification upon request of the customs auth orities pursuant to Article 7(7) of attesting 
documents for imported seal products; (b) control of the issuing of attesting documents by recognised bodies es tablished and active in 
that Member State;  
(c) preservation of a copy of at testing documents issued for seal products originating from seal 
hunts in that Member State. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  Regulation. Given the ambiguities in the criteria of the IC exception and the broad discretion that 
the recognized bodies consequently enjoy in applying these criteria, we consider that seal products derived from what should in fact be properly characterized as "commercial" hunts could potentially enter the EU market under the IC exception. Thus, pursuant to its design, the EU Seal Regime 
could be applied in a manner that would constitute a means of arbitrary or unjustifiable 
discrimination between countries where the same conditions prevail. 
5.329.  We now turn to the question of whether the manner in which the IC exception affects Inuit 
communities in different countries amounts to "arbitrary or unjustifiable discrimination". We note, 
in this respect, the Panel's findings that "the IC exception is available de facto  exclusively to 
Greenland", and that this outcome is "directly attributable to the regime itself and not to the actions of the operators in countries like Canada".
1578 The European Union challenges these 
findings on appeal both as an error of law1579 and, in the alternative, as a failure of the Panel to 
make an objective assessment of the facts, as required by Article 11 of the DSU.1580 In the 
following, we will address the European Union's arguments, and Canada's and Norway's responses, 
to the extent that they are pertinent in the cont ext of the chapeau of Article XX of the GATT 1994. 
5.330.  The European Union notes that any entity  within the Inuit communities in Canada or 
elsewhere can meet the requirements to become a recognized body for the purposes of assessing 
conformity with the IC exception.1581 The European Union submits that the fact that, so far, only 
an entity in Greenland has become a recognized body results from the decisions of the relevant 
authorities and operators in other countries, and cannot be attributed to the EU Seal Regime.1582 
The European Union argues that, contrary to what the Panel found, there is no "inherent flaw" or 
permanent defect in the IC exception that prevents Inuit communities, other than those in 
Greenland, from taking advantage of it.1583 The European Union further submits that the Panel 
wrongly assessed the even-handedness of the IC exception by looking at the effects of the 
measure in a particular period of time.1584 The European Union underscores that, while Canada and 
its Inuit communities have not taken any steps to benefit from the IC exception despite numerous efforts made by the EU authorities
1585, they could do so at any time in the future, if and when they 
so wish, based on their assessment of whether exports to the European Union are desirable.1586 In 
the European Union's view, the fact that the Canadian authorities purchase Inuit products under a targeted programme means that they have, in principle, a convenient and easy means to identify the seal products qualifying for the IC exception.
1587 
5.331.  Canada alleges that the European Union has misunderstood the thrust of the Panel's 
reasoning. According to Canada, the Panel's concerns about the design and application of the IC exception did not relate to whether Canadian I nuit seal products formally qualified for market 
access under the IC exception, but rather to the qu estion of whether they could benefit from it in 
practice. As Canada sees it, the Panel concluded that they could not because the IC exception was designed and applied in such a way that only large-scale, commercially oriented seal hunting 
operations possess the wherewithal to do so.
1588 Canada highlights the Panel's reference to a 
statement by the Canadian Inuit that their hunt is too small to "generate market interest alone on an international scale"
1589, and that "market realities are ꞌmajor factors contributing to the 
ineffectiveness of the Inuit exemption to the EU seal ban ꞌ".1590 According to Canada, the Panel 
agreed that there is "little point" in Canadian Inuit applying for the IC exception if, due to its 
                                               
1578 Panel Reports, paras. 7.317 and 7.318.  
1579 The European Union presents its arguments in th e context of Article 2.1 of the TBT Agreement. 
(European Union's other appellant's submission, paras.  124-277) However, the European Union also requests 
the Appellate Body to reverse the Panel's finding unde r the chapeau on the same grounds. (Ibid., para. 318) 
1580 European Union's other appellant's submission, para. 217. 
1581 European Union's other appellant's submission, paras. 182 and 191. 
1582 European Union's other appellant's submission, paras. 182 and 192.  
1583 European Union's other appellant's submission, para. 193. 
1584 European Union's other appellant's submission, para. 195. 
1585 European Union's other appellant's submission, paras. 196, 201, and 202.  
1586 European Union's other appellant's submission, para. 203. 
1587 European Union's other appellant's submission, para. 203.  
1588 Canada's appellee's submission, para. 132. 
1589 Canada's appellee's submission, para. 133 (quo ting Panel Reports, fn 219 to para. 7.162). 
1590 Canada's appellee's submission, para. 133 (quoting  Panel Reports, fn 219 to para. 7.162, in turn 
quoting Nunavut Department of Environm ent, Fisheries and Sealing Division, Report on the Impacts of the 
European Union Seal Ban , (EC) No. 1007/2009, in Nunavut (2012) (Panel Exhibit JE-30) (Nunavut 2012 
Report), p. 9).  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  design and application, they are unable to take advantage of it.1591 Canada alleges that, more 
generally, the actions of a WTO Member or private actors, in responding to a discriminatory measure, should not form the basis for an assessment of whether that measure discriminates against that WTO Member.
1592 
5.332.  Norway argues that the Panel did not err in  relying on its finding that the IC exception is 
de facto  only available to Greenland. According to Norway, "the Panel explicitly acknowledged that 
the fact that Greenland has so far been the only  beneficiary of the IC requirements was not … 
sufficient to establish arbitrariness in the design  or application of the IC requirements", but 
"merely 'an indication' that had to be considered with other factors".1593 Norway further submits 
that "the Panel adequately examined the implications" of the actions and omissions of the Canadian authorities and operators.
1594 Norway highlights the Panel's observation that "it is not 
cost effective under the current circumstances to segregate [Canadian] Inuit products from other 
products".1595 Norway also underscores the Panel's suggestion that this result had been anticipated 
by the EU legislator.1596 Norway submits that the European Union cannot claim that the 
requirements of the IC exception do not discriminat e against Canadian Inuit when the EU legislator 
in fact knew that this would be the case.1597 According to Norway, it is because of the terms of the 
measure that Canadian Inuit, who truly pursue a subsistence hunt, are effectively denied the 
choice to benefit from the IC exception. Norway  asserts that the European Union is, therefore, 
w r o n g  w h e n  i t  a r g u e s  t h a t  " t h e  f a i l u r e  o f  t h e  C a n a d i a n  I n u i t  t o  de facto  qualify under the 
IC requirements cannot be 'attributed' to the EU Seal Regime, or the European Union".1598 
5.333.  We consider that, to the extent that the IC  exception is designed and applied so as to be 
de facto  only available to Greenland, the EU Seal Regime would treat seal products derived from 
IC hunts in Greenland and Canada differently and, in this respect, result in discrimination between countries where the same conditions prevail. It is undisputed that the Inuit in Greenland are 
currently the only beneficiaries of the IC exception. The European Union contests, however, that 
this outcome can be attributed to the EU Seal Regime, suggesting that there is no "genuine relationship"
1599 between the current de facto  exclusivity of the IC exception and the design and 
application of the IC exception, such that this ou tcome would not be "attributable" to the EU Seal 
Regime.1600 
5.334.  We note that, while the Panel found that the fact that only Greenland has been able to 
benefit from the IC exception "is directly attributab le to the regime itself and not to the actions of 
the operators in countries like Canada"1601, it did not point to any aspect of the IC exception itself 
that prevents indigenous communities in Canada from taking advantage of it. The Panel also did not explain how it accounted for the failure of the Canadian authorities to apply for recognized 
body status in reaching its conclusion. Canada, in turn, does not argue that the fact that the 
Canadian indigenous communities have not taken advantage of the IC exception is due to the design and application of the IC exception. Rather , Canada's explanation is based on the fact that 
the EU Seal Regime bans seal products derived from commercial  hunts, and that the Canadian 
Inuit had allegedly relied on synergies with "southern producers" in order to export their seal products to the European Union.
1602 According to Canada's own explanation, the reason that Inuit 
communities in Canada do not have an incentive to take advantage of the IC exception is related 
                                               
1591 Canada's appellee's submission, para. 136.  
1592 Canada's appellee's submission, para. 137.  
1593 Norway's appellee's submission, para. 394 (quoting Panel Reports, para. 7.306). (emphasis omitted) 
1594 Norway's appellee's submission, para. 395. 
1595 Norway's appellee's submission, para. 396 (quoting Panel Reports, para. 7.314).  
1596 Norway's appellee's submission, paras. 398 and 399. 
1597 Norway's appellee's submission, para. 400.  
1598 Norway's appellee's submission, para. 402. 
1599 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 134. 
1600 See also Appellate Body Report, US – Clove Cigarettes , fn 372 to para. 179.  
1601 Panel Reports, para. 7.318.  
1602 See Panel Reports, para. 7.315 ("Canada also expl ains that it is not ec onomically feasible for 
Canadian Inuit to develop their own pr ocessing and distribution chains, gi ven that the Inuit have relied on 
synergies with southern producers; as those networks ma y no longer be viable because of the EU Seal Regime, 
considerable investment would be needed to deve lop a new processing and distribution centre.") WT/DS400/AB/R • WT/DS401/AB/R 
 
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  to the incidental effects of the ba n on seal products derived from commercial hunts1603, rather than 
any aspect of the "text", "legislative history", or "actual application of the IC exception", as the Panel suggests.
1604  
5.335.  We further note that, while the Panel cited Canada's explanation and certain statements 
from the COWI Reports, it never made an affirmat ive finding that the ban on seal products derived 
from commercial hunts prevents the Canadian Inuit from taking advantage of the IC exception. In 
any event, the European Union submits that the Pa nel ignored the fact that the relevant Canadian 
authorities and entities have not shown any interest in benefiting from the IC exception.1605 The 
European Union cites Canada's response to a Panel question to the effect that Inuit communities in Canada have "deliberately decided to focus on the development of the local (i.e. Nunavut) market".
1606 The European Union further argues that the Canadian Inuit could benefit from the 
IC exception "at any time in the future if and when they so wish, based on their assessment of 
whether exports to the EU are desirable".1607 The European Union submits that "the fact that the 
Canadian authorities purchase Inuit products under a targeted programme means that they have, 
in principle, a convenient and easy means to identify and manage the relevant products qualifying 
for the IC exception".1608  
5.336.  We recall that the question before us is whether the European Union has met its burden of 
showing that the current de facto  exclusivity of the IC exception cannot be attributed to the 
EU Seal Regime. The European Union argues that the fact that Canadian Inuit have so far not taken advantage of the IC exception is explained by the inaction of the Canadian authorities and 
market actors. We consider that, if the current de facto  exclusivity of the IC exception could be 
attributed entirely  to private choice, there would be no "genuine relationship" between this 
exclusivity and the EU Seal Regime. We recall, in this respect, that the non-discrimination obligations in the covered agreements are only concerned with " governmental  intervention that 
affects the conditions under which like goods, domestic and imported, compete in the market 
within a Member's territory".
1609 We also recognize that, to the extent that the EU Seal Regime has 
an adverse effect on the Canadian Inuit by depressing the international market for seal products, 
this adverse effect would be experienced by the Gr eenlandic Inuit as well and thus would not affect 
the conditions of competition between Canadian and Greenlandic Inuit.1610 
5.337.  Nevertheless, we are not persuaded that the European Union has made "comparable 
efforts"1611 to facilitate the access of the Canadian Inuit to the IC exception as it did with respect 
to the Greenlandic Inuit. For example, the Danish  customs authorities processed imports based on 
certificates by the Greenlandic authorities prior to the Greenlandic entity obtaining recognized 
                                               
1603 See Panel Reports, fn 499 to para. 7.315 (referring to Canada's first written submission to the 
Panel, paras. 37-48; and Canada's response to Pane l question No. 84). ("Canada further submits that the 
Government of Nunavut has indicated that there has been no demand for Canadian Inuit products from 
European Union buyers since the coming -into-force of the ban. Therefore th ere has not been much incentive to 
pursue the marketing of seal pr oducts under the IC category.") 
1604 Panel Reports, para. 7.317.  
1605 European Union's other appellant's submission, para. 201.  
1606 European Union's other appellant's submission, fn  251 to para. 203 (quoting Canada's response to 
Panel question No. 71, para. 304). The European Union also quoted the following excerpt from a report by the government of Nunavut that the complainants put before the Panel: 
Due to logistics and the high cost of transpor ting seal pelts to market, the Government of 
Nunavut purchases sealskins from Inuit seal hunters, and then transport the skins for marketing to national and international buyers at no cost to the hunter. This program applies exclusively to 
ringed seals and terrestrial furbearers, with all pe lts being sold at the Fur Harvesters Auction Inc. 
(FHA) bi-annual auction in North Bay, Ontario,  Canada. Buyers and brokers from around the 
world attend these auctions to bid on a wide selection of wild fur species[.] 
(European Union's other appellant's submission, fn 254 to para. 203 (quoting Nunavut 2012 Report, p. 2))  
1607 European Union's other appellant's submission, para. 203. 
1608 European Union's other appellant's submission, para. 203.  
1609 Appellate Body Report, Korea – Various Measures on Beef , para. 149. (emphasis original) See also 
Appellate Body Report, US – Tuna II (Mexico) , para. 236.  
1610 The European Union argues that "the Panel disr egarded the fact that the challenges for Inuit 
communities engaged in seal hunting for subsistence purposes are similar anywhe re, including Canada and 
Greenland". (European Union's other appellant's submission, para. 203)  
1611 See Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 122. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  body status within the meaning of the Implementing Regulation.1612 While the European Union has 
argued that it had "engaged in 'multiple efforts' to assist the Inuit in Canada to benefit from the IC exception"
1613, the European Union also observes that "the relevant Canadian Inuit authorities 
wrongly interpret the EU Seal Regime as requiring the Inuit communities to process their own 
sealskin products to fall under the IC exception".1614 It would appear that the European Union has 
not pursued cooperative arrangements to facilitate the access of Canadian Inuit to the IC exception.
1615 We recall, in this regard, that a measure may result in arbitrary or unjustifiable 
discrimination "when the application of the measure at issue does not allow for any inquiry into the 
appropriateness of the regulatory program for the conditions prevailing in those exporting 
countries."1616 For example, it appears to us that setting up a "recognized body" that fulfils all the 
requirements of Article 6 of the Implementing Re gulation may entail significant burdens in some 
instances. Overall, we are not persuaded that the European Union has established that it has 
designed and implemented the EU Seal Regime in a manner that is not arbitrary or unjustifiable.
1617 
5.338.  In sum, we have identified several features of the EU Seal Regime that indicate that the 
regime is applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, in particular with respect to the 
IC exception. First, we found that the European Union did not show that the manner in which the 
EU Seal Regime treats seal products derived from  IC hunts as compared to seal products derived 
from "commercial" hunts can be reconciled with the objective of addressing EU public moral concerns regarding seal welfare. Second, we found considerable ambiguity in the "subsistence" 
and "partial use" criteria of the IC exception. Given the ambiguity of these criteria and the broad 
discretion that the recognized bodies consequently enjoy in applying them, seal products derived from what should in fact be properly characterized as "commercial" hunts could potentially enter 
the EU market under the IC exception. We di d not consider that the European Union has 
sufficiently explained how such instances can be pr evented in the application of the IC exception. 
Finally, we were not persuaded that the European Union has made "comparable efforts" to 
facilitate the access of the Canadian Inuit to the IC exception as it did with respect to the 
Greenlandic Inuit. We also noted that setting up a "recognized body" that fulfils all the requirements of Article 6 of the Implementing Re gulation may entail significant burdens in some 
instances. 
5.339.  For these reasons, we find that the Europe an Union has not demonstrated that the EU Seal 
Regime, in particular with respect to the IC exception, is designed and applied in a manner that 
meets the requirements of the chapeau of Arti cle XX of the GATT 1994. It follows that the 
European Union has not justified the EU Seal Regime under Article XX(a) of the GATT 1994.  
 
                                               
1612 Panel Reports, fn 220 to para. 7.164, and para. 7.316. We note that there is no evidence that 
Canadian Inuit communities have attempted to export seal products to the European Union since the entry into force of the EU Seal Regime. 
1613 Panel Reports, para. 7.162 and fn 218 thereto (referring to European Union's response to Panel 
question No. 116 and "European Commission representative visits Iqaluit on good-will trip", Nunatsiaq Online , 
23 April 2013 (Panel Exhibit EU-145)). The European Union al so submits that "the EU authorities issued explicit 
invitations and made substantial efforts so that entities in Canada could al so become recognised bodies and the 
Canadian Inuit communities could benefit from the IC exception". (European Union's other appellant's submission, para. 245 (referring to ibid., fn 241 to para. 196)) 
1614 European Union's other appellant's submission, para. 200. 
1615 We note that, in US – Gasoline , the Appellate Body found it releva nt that the United States had not 
pursued cooperative arrangements "to the point where it encountered governments that were unwilling to cooperate". (Appellate Body Report, US – Gasoline , p. 27, DSR 1996:I, pp. 25-26) 
1616 Appellate Body Report, US – Shrimp , para. 165. 
1617 We consider that our findings are not affected by  the European Union's claims on this issue under 
Article 11 of the DSU. We therefore do not find it necessary to address those claims. WT/DS400/AB/R 
 
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  6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS400/AB/R 
6.1.  In the appeal of the Panel Report, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products (WT/DS400/R) (Canada Panel Report), for the reasons 
set out in this Report, the Appellate Body: 
a. reverses the Panel's finding, in paragraphs 7.125 and 8.2(a) of the Canada Panel Report, 
that the EU Seal Regime constitutes a "technical regulation" within the meaning of 
Annex 1.1 to the TBT Agreement; and consequent ly, declares moot and of no legal effect 
the Panel's conclusions under:  
i. Article 2.1 of the TBT Agreement, in pa ragraphs 7.319, 7.353, and 8.2(b) of the 
Canada Panel Report;  
ii. Article 2.2 of the TBT Agreement, in pa ragraphs 7.505 and 8.2(c) of the Canada 
Panel Report;  
iii. Article 5.1.2 of the TBT Agreement, in paragraphs 7.528, 7.547, and 8.2(d) of the 
Canada Panel Report; and  
iv. Article 5.2.1 of the TBT Agreement, in pa ragraphs 7.580 and 8.2(e) of the Canada 
Panel Report; 
b. with respect to the Panel's analysis under Article I:1 and Article III:4 of the GATT 1994:  
i. upholds the Panel's finding, in paragraphs 7.586 of the Canada Panel Report, that 
the legal standard of the non-discrimination obligations under Article 2.1 of the 
TBT Agreement does not apply equally to claims under Articles I:1 and III:4 of the 
GATT 1994; and 
ii. upholds the Panel's finding, in paragraphs 7.600 and 8.3(a) of the Canada Panel 
Report, that the EU Seal Regime is inconsistent with Article I:1 of the GATT 1994 
because it does not "immediately and unconditionally" extend the same advantage 
accorded to seal products of Greenlandic origin to like seal products of Canadian origin; 
c. with respect to the Panel's analysis under Article XX(a) of the GATT 1994:  
i. finds that the Panel did not err in concluding, in paragraph 7.624 of the Canada 
Panel Report, that the analysis under Ar ticle XX(a) of the GATT 1994 should examine 
the prohibitive and permissive aspects of the EU Seal Regime; 
ii. finds that the Panel did not err in concluding, in paragraph 7.631 of the Canada 
Panel Report, that the objective of the EU Seal Regime falls within the scope of 
Article XX(a) of the GATT 1994;  
iii. upholds the Panel's finding, in paragraph 7.639 of the Canada Panel Report, that "the 
EU Seal Regime is provisionally deemed necessary within the meaning of 
Article XX(a) of the GATT 1994"; 
d. with respect to the Panel's analysis under the chapeau of Article XX of the GATT 1994: 
i. reverses the Panel's findings under the chapeau of Article XX of the GATT 1994, in 
paragraphs 7.649, 7.650, 7.651, and 8.3(d)  of the Canada Panel Report, on the 
basis that the Panel applied an incorrect legal test;  
ii. completes the analysis and finds that the European Union has not demonstrated that 
the EU Seal Regime, in particular with respect to the IC exception, is designed and 
applied in a manner that meets the requiremen ts of the chapeau of Article XX of the 
GATT 1994; and, therefore,  WT/DS401/AB/R 
 
- NOR-193 - 
 
  6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS401/AB/R 
6.1.  In the appeal of the Panel Report, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products (WT/DS401/R) (Norway Panel Report), for the reasons 
set out in this Report, the Appellate Body: 
a. reverses the Panel's finding, in paragraphs 7.125 and 8.2(a) of the Norway Panel Report, 
that the EU Seal Regime constitutes a "technical regulation" within the meaning of 
Annex 1.1 to the TBT Agreement; and consequent ly, declares moot and of no legal effect 
the Panel's conclusions under:  
i. Article 2.2 of the TBT Agreement, in pa ragraphs 7.505 and 8.2(b) of the Norway 
Panel Report; 
ii. Article 5.1.2 of the TBT Agreement, in pa ragraphs 7.528, 7.547, and 8.2(c) of the 
Norway Panel Report; and  
iii. Article 5.2.1 of the TBT Agreement, in pa ragraphs 7.580 and 8.2(d) of the Norway 
Panel Report; 
b. with respect to the Panel's analysis under Article I:1 and Article III:4 of the GATT 1994:  
i. upholds the Panel's finding, in paragraph 7.586 of the Norway Panel Report, that the 
legal standard of the non-discrimination obligations under Article 2.1 of the 
TBT Agreement does not apply equally to claims under Articles I:1 and III:4 of the 
GATT 1994; and 
ii. upholds the Panel's finding, in paragraphs  7.600 and 8.3(a) of the Norway Panel 
Report, that the EU Seal Regime is inconsistent with Article I:1 of the GATT 1994 
because it does not "immediately and unconditionally" extend the same advantage accorded to seal products of Greenlandic origin to like seal products of Norwegian 
origin; 
c. with respect to the Panel's analysis under Article XX(a) of the GATT 1994:  
i. finds that the Panel did not err in concluding, in paragraph 7.624 of the Norway 
Panel Report, that the analysis under Ar ticle XX(a) of the GATT 1994 should examine 
the prohibitive and permissive aspects of the EU Seal Regime; 
ii. finds that the Panel did not err in concluding, in paragraph 7.631 of the Norway 
Panel Report, that the objective of the EU Seal Regime falls within the scope of 
Article XX(a) of the GATT 1994;  
iii. upholds the Panel's finding, in paragraph 7.639 of the Norway Panel Report, that 
"the EU Seal Regime is provisionally deemed necessary within the meaning of 
Article XX(a) of the GATT 1994"; 
d. with respect to the Panel's analysis under the chapeau of Article XX of the GATT 1994: 
i. reverses the Panel's findings under the chapeau of Article XX of the GATT 1994, in 
paragraphs 7.649, 7.650, 7.651, and 8.3(d)  of the Norway Panel Report, on the 
basis that the Panel applied an incorrect legal test;  
ii. completes the analysis and finds that the European Union has not demonstrated that 
the EU Seal Regime, in particular with respect to the IC exception, is designed and 
applied in a manner that meets the requiremen ts of the chapeau of Article XX of the 
GATT 1994; and, therefore,  
iii. finds that the European Union has not justified the EU Seal Regime under 
Article XX(a) of the GATT 1994; and WT/DS400/AB/R • WT/DS401/AB/R 
 
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  ANNEX 1 
  
  
WT/DS400/8  
 
29 January 2014  
(14-0510)  Page: 1/2  
    
EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND 
MARKETING OF SEAL PRODUCTS 
NOTIFICATION OF AN APPEAL BY CANADA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 24 January 2014, from the Delegation of Canada, is being 
circulated to Members. 
 
_______________ 
 
 
 Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU) and Rule 20 of the  Working Procedures for Appellate 
Review, Canada notifies its appeal of certain issues of law in the Report of the Panel in  European 
Communities – Measures Prohibiting the Importation and Marketing of Seal Products  
(WT/DS400/R) and certain legal interpretations developed by the Panel in this Report. 
First, Canada seeks review by the Appellate Body of the Panel's findings and conclusions 
with respect to the legitimate regulatory distinction test in Article 2.1 of the Agreement on 
Technical Barriers to Trade (TBT Agreement). Specifically, the Panel erred in its intermediate 
finding that the distinction between commercial and IC1 hunts based on the purpose of the hunt is 
justifiable.2 The Panel erred by formulating and applyi ng the wrong legal test, and in doing so, 
failed to take into account relevant information about the negative impact of the IC exception on the identified objective of the EU Seal Regime.
3 
Canada also requests the Appellate Body to find that the Panel acted inconsistently with 
Article 11 of the DSU by failing to make an objective assessment of the facts pertinent to its 
findings under Article 2.1 of the TBT Agreement with respect to the distinctions between commercial and IC hunts.
4 
Second, Canada seeks review by the Appellate Body of the Panel's findings and conclusion 
that the EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement. This conclusion 
is incorrect as a matter of law, and is based on erroneous intermediate findings on issues of law 
and legal interpretation including the Panel's reasoning and findings with respect to whether the 
                                               
1 IC refers to "Inuit or ot her indigenous communities". 
2 See e.g. Panel Report, EC – Seal Products , paras. 7.283-7.300. 
3 The EU Seal Regime includes the Basic Regulation and the Implementing Regulation as set out in 
ibid. paras. 7.7-7.24. 
4 See e.g. ibid. paras. 7.227-7.245 and 7.261-7.271. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 196 - 
 
  EU Seal Regime contributes to the identified objective,5 the relational analysis under the "weighing 
and balancing" exercise, and its reasoning and findings as to whether the alternative measure proposed by Canada is reasonably available.
6 Specifically, in relation to the "contribution" element, 
the Panel erred in finding that the EU Seal Regime as a whole contributes to the identified 
objective by applying the wrong legal test and failing to articulate with sufficient specificity the 
extent of the contribution.7 The Panel also failed to properly assess the risks non-fulfilment would 
create, or to conduct a relational analysis.8 In relation to its reasoning and findings with respect to 
the reasonable availability of the alternative measure advanced by Canada, the Panel erred by 
comparing the wrong aspects of the EU Seal Regime with the alternative measure,9 by 
disregarding measures applied by the European Union in comparable situations or similar product areas,
10 and by mis-interpreting and mis-a pplying Appellate Body jurisprudence.11  
Canada also requests the Appellate Body to find that the Panel acted inconsistently with 
Article 11 of the DSU by failing to make an objective assessment of the facts pertinent to the above-referenced intermediate findings with respec t to Article 2.2 of the TBT Agreement, including 
its consideration and assessment of facts and eviden ce pertinent to the question of whether the EU 
Seal Regime contributes to the identified objective, and has negatively impacted demand in the European Union. 
 Third, Canada seeks review by the Appellate Body of the Panel's findings and conclusion with 
respect to Article XX of the GATT 1994. Canada subm its that the Panel erred in finding that the EU 
Seal Regime is provisionally justified under Article XX(a). Specifically, the Panel failed to interpret and apply the first element
12 of Article XX(a) correctly, by ignoring the words "to protect", and 
thereby omitting to determine whether the sale in the European Union of products derived from 
commercial seal hunts created a risk to an EU public moral.13 It also erred in its interpretation and 
application of the necessity test under Article XX(a) with respect to the issues of the contribution 
of the EU Seal Regime to the identified objective, and with respect to the reasonable availability of 
the alternative measure advanced by Canada already noted above in the context of Canada's request for review under Article 2.2 of the TBT Agreement.
14 In addition, although it came to the 
correct conclusion that the EU Seal Regime is no t consistent with the requirements of the chapeau 
of Article XX, the Panel erred in its reasoning in coming to this conclusion.15  
 Canada also requests the Appellate Body to find that the Panel acted inconsistently with 
Article 11 of the DSU in relation to its findings under Article XX(a) by failing to make an objective 
assessment of the facts by not taking into account evidence relating to animal welfare standards in 
the European Union, including standards applied to other wild animal hunts and commercial abattoirs.
16 
 
 
_______________ 
 
  
 
 
                                               
5 See e.g. ibid. paras. 7.446-7.460. 
6 See e.g. Panel Report, EC – Seal Products , paras. 7.496-7.504. 
7 See e.g. ibid. paras. 7.441-7.461. 
8 See e.g. ibid. paras. 7.462-7.465 and 7.500-7.504. 
9 See e.g. ibid. paras. 7.478-7.484 and 7.493-7.503. 
10 See e.g. ibid. para. 7.504, fn 815. 
11 See e.g. ibid. para. 7.502. 
12 The measure must be designed  "to protect public morals". 
13 See e.g. ibid. paras. 7.631 and 7.383-7.411. 
14 See e.g. ibid. paras. 7.636-7.639. 
15 See e.g. ibid. paras. 7.649-7.650, referring back to paras. 7.256-7.300. 
16 See e.g. ibid. paras. 7.188 and 7.222-7.224. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  ANNEX 2 
  
  
WT/DS401/9  
 
29 January 2014  
(14-0508)  Page: 1/4  
    
EUROPEAN COMMUNITIES – MEASURES PROHIBITING THE IMPORTATION AND 
MARKETING OF SEAL PRODUCTS 
NOTIFICATION OF AN APPEAL BY NORWAY 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 24 January 2014,  from the Delegation of Norway, is being 
circulated to Members. 
 
_______________ 
 
 
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes (“DSU”) and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) (“ Working Procedures ”), Norway hereby notifies the Dispute 
Settlement Body (“DSB”) of its decision to appeal certain issues of law and legal interpretations in 
the Panel Report in European Communities – Measures Prohibiting the  Importation and Marketing 
of Seal Products (WT/DS401) (“Panel Report”).   
2. Pursuant to Rules 20(1) and 21(1) of the Working Procedures , Norway files this Notice of 
Appeal together with its Appellant’s Submission with the Appellate Body Secretariat. 
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures , this Notice of Appeal includes an 
indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to Norway’s ability to rely on other paragraphs of the Panel Report in its appeal.  
*** 
4. Norway seeks review by the Appellate Body of the following errors of law and legal 
interpretation by the Panel in its Report, and requ ests the following findings by the Appellate Body. 
I. REVIEW OF THE PANEL’S FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT  
1. With respect to the Panel’s identification of the objective of the EU Seal 
Regime:1 
5. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the facts as requ ired under Article 11 of the DSU, when it found 
                                               
1 Panel Report, paras. 7.410 and 8.2(b). WT/DS400/AB/R • WT/DS401/AB/R 
 
- 198 - 
 
  that the objectives of the EU Seal Regime do not  include protecting the interests of indigenous 
communities (“IC”), as reflected in the “IC requirements”2 under the measure, and promoting the 
sustainable management of marine resources (“SR M”), as reflected in the “SRM requirements”3 
under the measure; and rather found that the EU Seal Regime pursues a sole “objective” of 
a d d r e s s i n g  “ t h e  m o r a l  c o n c e r n s  o f  t h e  E U  p u b l i c  w i t h  r e g a r d  t o  t h e  w e l f a r e  o f  s e a l s ” .4  I n  
particular, the Panel erred because:  
 it failed properly to consider the text, legislat ive history, structure, design and operation of 
the EU Seal Regime in identifying the objectiv es of the EU Seal Regime, as required under 
Article 2.2;5  
 in its assessment of the evidence regarding the objectives of the EU Seal Regime, the Panel 
failed to make an objective assessment of th e facts, as required under Article 11 of the 
DSU;6 and 
 assuming it did properly assess the text, legisl ative history, structure, design and operation 
of the EU Seal Regime ( quod non ), the Panel erred under Article 2.2 in finding that the IC 
and SRM interests reflected in the IC and SRM requirements do not qualify as objectives.7  
6. For the reasons provided in paragraph 5 above,  Norway requests that the Appellate Body 
reverse the Panel’s finding that the objectives of the EU do not  include protecting IC interests and 
promoting SRM interests, and that the EU Seal Regime’s sole objective is to address “the moral 
concerns of the EU public with regard to the welfare of seals”.  As a result, the Appellate Body should also reverse the Panel’s ultimate finding, in paragraph 8.2(b) of the Panel Report, that the 
EU Seal Regime is not inconsistent with Article 2.2 of the TBT Agreement . 
2. With respect to the Panel’s finding the E U  S e a l  R e g i m e  i s  “ n o t  m o r e  t r a d e  
restrictive than necessary to fulfil” its objective:8   
7. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the facts as requ ired under Article 11 of the DSU, in finding that 
the EU Seal Regime is capable of making, and do es make, some contribution to the identified 
objective of addressing EU  public moral concerns.9  In particular, the Panel erred because:    
 it failed properly to interpret and apply Article 2.2, by failing to articulate with sufficient 
clarity and precision the degree or extent of th e contribution made by the EU Seal Regime to 
its objective, and by concluding that the EU Seal Regime is capable of making, and does make, some contribution to EU public moral concerns;
10 and 
 it failed to make an objective assessment of the facts, as required under Article 11 of the 
DSU, in finding that the EU Seal Regime is capable of making, and does make, some contribution to the identified objective of addressing EU public moral concerns;
11 and 
                                               
2 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(1);  Implementing Regulation, Exhibit JE-2, 
Article 3(1). 
3 See, e.g., Basic Seal Regulation, Exhibit JE-1, Arti cle 3(2)(b);  Implementing Regulation, Exhibit JE-2, 
Article 5(1). 
4 Panel Report, para. 7.410. 
5 Panel Report, paras. 7.372-7.411. 
6 Panel Report, paras. 7.372-7.411. 
7 Panel Report, para. 7.402. See also Panel Report, paras. 7.399 and 7.401. 
8 Panel Report, paras. 7.505 and 8.2(b). 
9 Panel Report, para. 7.460. 
10 Panel Report, paras. 7.441-7.461. 
11 Panel Report, paras. 7.441-7.461. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 199 - 
 
   the Panel also failed to make an objective assessment of the matter under Article 11 of the 
DSU by failing to address Norway’s claim and argument that three contested conditions under the SRM requirement – that is, the “s ole purpose”, “not-for-profit”, and “non-
systematic” requirements
12 (the “three contested conditions”) – make no contribution to the 
measure’s objectives.  
8. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the matter, as re quired under Article 11 of the DSU, by failing to 
establish whether the EU Seal Regime gives rise to “arbitrary and unjustifiable discrimination”, as 
required by Article 2.2, read in light of the sixth recital of the preamble of the TBT Agreement ; 
9. The Panel erred in interpreting and applying Article 2.2 of the TBT Agreement , and failed to 
make an objective assessment of the matter as re quired under Article 11 of the DSU, in finding 
that one of the less trade-restrictive alternative measures proposed by Norway was not reasonably 
available to the European Union, having regard to the level of contribution of the alternative.13  In 
particular, the Panel erred because: 
 it held the alternative measure up to a benchmark level of contribution that was much 
higher than the degree of contribution it ha d found was achieved by the EU Seal Regime, 
contrary to Article 2.2;14 and 
 it failed to make an objective assessment of the facts under Article 11 of the DSU, by not 
addressing or making any findings with respect to other less trade-restrictive alternatives put forward by Norway. 
10. For the reasons provided in paragraphs 7, 8, and 9 above, Norway requests that the 
Appellate Body reverse the Panel’s finding that the EU Seal Regime is not more trade-restrictive 
than necessary to fulfil the legitimate objective.15  As a result, the Appellate Body should also 
reverse the Panel’s ultimate finding, in paragrap h 8.2(b) of the Panel Report, that the EU Seal 
Regime is not inconsistent with Article 2.2 of the TBT Agreement . 
II. REQUEST FOR LIMITED COMPLETION OF THE ANALYSIS UNDER ARTICLE 2.2 OF 
THE TBT AGREEMENT  
11. If, as requested by Norway above, the Appella te Body reverses, for any reason, the Panel’s 
findings under Article 2.2 of the TBT Agreement , Norway requests the Appellate Body to complete 
the legal analysis under Article 2.2 of the TBT Agreement  and make the following limited findings: 
 that, in addition to pursuing the EU public morals objective, the objectives of the EU Seal 
Regime also include  protecting the interests of indigenous communities and promoting 
sustainable marine resource management; 
 that promoting sustainable marine resource management is a legitimate objective; and 
 that, by virtue of the three contested SRM conditions, the EU Seal Regime is more trade-
restrictive than necessary to fulfil its legitimate objectives. 
                                               
12 See, e.g., Basic Seal Regulation, Exhibit JE-1, Article 3(2)(b); Implementing Regulation, Exhibit JE-2, 
Articles 5(1) and 5(1)(c). 
13 Panel Report, para. 7.504. 
14 Panel Report, paras. 7.467, 7.478-7.485 and 7.493-7.505. 
15 Panel Report, para. 7.505. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 200 - 
 
  III. REVIEW OF THE PANEL’S FINDINGS  UNDER ARTICLE XX OF THE GENERAL 
AGREEMENT ON TARIFFS AND TRADE (“GATT 1994”) AND REQUEST FOR COMPLETION OF THE ANALYSIS UNDER ARTICLE XX OF THE GATT 1994 
1. With respect to the Panel’s finding that the EU Seal Regime is provisionally 
justified under sub-paragraph (a ) of Article XX of the GATT 1994:16  
12. The Panel erred in interpreting and applying sub-paragraph (a) of Article XX because it 
examined whether the EU Seal Regime as a whole was provisionally justified under that provision, 
whereas it was required, but failed, to consider whether the specific aspects of the measure that give rise to violations of substantive provis ions of the GATT 1994 could fall under, and be 
provisionally justified by, sub-paragraph (a).
17  Norway, therefore, requests that the Appellate 
Body reverse the Panel’s findings at paragraphs 7.639 and 8.3(d) that the EU Seal Regime falls 
under, and is provisionally justified by, sub-paragraph (a).  
13. Norway also requests that the Appellate Body complete the analysis and find that the 
specific aspects of the measure that give rise to violations of the GATT 1994 do not fall under, and 
are not provisionally justified by, sub-paragraph (a) of Article XX.   
14. If the Appellate Body disagrees with Norway’s  requests under paragraphs 12 and 13 above, 
Norway further considers that the Panel erred in interpreting and applying sub-paragraph (a) of 
Article XX, and failed to make an objective asse ssment of the matter, as required under Article 11 
of the DSU. In particular, the Panel erred because: 
 it failed properly to interpret and apply subpara graph (a) of Article XX by finding that the EU 
Seal Regime as a whole contributes “to a certain extent” to the measure’s objective;18 
 it failed to make an objective assessment of the facts, as required under Article 11 of the 
DSU, in finding that the EU Seal Regime as a whole contributes “to a certain extent” to the 
measure’s objective;19 
 it failed to apply the proper legal standard under sub-paragraph (a) of Article XX as regards 
a less trade-restrictive alternative measure because it held the alternative measure up to a 
benchmark level of contribution that was much higher than the degree of contribution it had found was achieved by the EU Seal Regime;
20 and 
 it failed to make an objective assessment of the facts, as required under Article 11 of the 
DSU, by not addressing or making any findings  with respect to other less trade-restrictive 
alternatives put forward by Norway.   
15. As a result of the errors identified in paragraph 14 above, Norway requests that the 
Appellate Body reverse the Panel’s ultimate finding at paragraphs 7.639 and 8.3(d). 
2. With respect to the Panel’s finding that the EU Seal Regime reflects arbitrary 
and unjustifiable discrimination under the chapeau of Article XX of the GATT 
1994:21   
16. The Panel erred in interpreting and applying the chapeau of Article XX because, in 
determining whether the IC and SRM requirements are applied in a manner that reflect “arbitrary 
                                               
16 Panel Report, paras. 7.639 and 8.3(d). 
17 Panel Report, paras. 7.618-7.624. 
18 Panel Report, paras. 7.630-7.639. 
19 Panel Report, paras. 7.630-7.639. 
20 Panel Report, para. 7.639. 
21 Panel Report, paras. 7.651 and 8.3(d). WT/DS400/AB/R • WT/DS401/AB/R 
 
- 201 - 
 
  or unjustifiable discrimination”, it failed to end its analysis upon finding that the IC and SRM 
requirements are not “rationally connected” to the EU public moral concerns.22  
17. If the Appellate Body disagrees with Norway’s  requests under paragraphs 12 and 13 above, 
Norway requests that the Appellate Body modify the reasoning underpinning the Panel’s finding at 
paragraphs 7.651 and 8.3(d) that the measure is not consistent with the requirements of the 
chapeau to Article XX, and uphold that finding, albeit for reasons different than those given by the 
Panel.   
 
_______________ 
  
 
                                               
22 Panel Report, paras. 7.644-7.651. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 202 - 
 
  ANNEX 3 
  
  
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 characteristics
3; 
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  
                                               
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/AB/R • WT/DS401/AB/R 
 
- 203 - 
 
  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. 
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 Sealing7; 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 
                                               
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. WT/DS400/AB/R • WT/DS401/AB/R 
 
- 204 - 
 
  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 
"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. 
                                               
12 Panel Report, paras. 7.314 – 7.317. 
13 Panel Report, para. 7.317. 
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.  WT/DS400/AB/R • WT/DS401/AB/R 
 
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  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.  
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. 
_______________  
                                               
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).  
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. WT/DS400/AB/R • WT/DS401/AB/R 
 
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  ANNEX 4 
 
 ORGANISATION MONDIALE  ORGANIZACIÓN MUNDIAL 
 DU COMMERCE  DEL COMERCIO 
 
WORLD TRADE ORGANIZATION 
APPELLATE BODY  
European Communities – Measures Prohibiting the Importation and Marketing of Seal Products 
AB-2014-1 
AB-2014-2 
Procedural Ruling 
 
1. On 29 January 2014, we received a joint communication from Canada and Norway in the 
above proceedings. In that letter, Canada and Norw ay request that the oral hearing in this appeal 
be opened to public observation. Specifically, Canada and Norway request that the Division allow public observation of the statements and answers to questions of the participants, as well as those 
of third participants who agree to make their statements and responses to questions public. They 
propose that public observation be permitted via simultaneous closed-circuit television broadcasting with the option for the transmission to be turned off should a third participant 
indicate that it wishes to keep its oral statem ent confidential. Canada and Norway further request 
and that the Division adopt additional procedures to ensure the security and orderly conduct of the 
proceedings. On that same date, we also received an email communication from the European Union, the Other Appellant in these proceedings, stating that it joins Canada's and 
Norway's request for observation by the public of the hearing, and has no objections to the 
proposed additional security arrangements. 
2. On 30 January 2014, we invited the third partie s to comment in writing on the request by 
noon, on 3 February 2014. By that deadline, we received responses from Japan, Mexico, and the 
United States. Japan provided an email communication indicating that it has no objection to Canada and Norway's request regarding public obse rvation and logistical arrangements for the oral 
hearing. Mexico also indicated that it does not object to the request of Canada and Norway, but 
that its position is without prejudice to its systemic views on the public observation of oral hearings. The United States indicated its support for the request of the participants regarding the public observation of the hearing, and suggested  that the Division accommodate the logistical 
requests of Canada and Norway to the extent possible to ensure that the participants are 
comfortable opening the hearing to the public.  
3. We recall that requests to allow public observation of the oral hearing have been made, and 
have been authorized, in 10 previous appeals.
1 In its rulings, the Appellate Body has held that it 
                                               
1 These proceedings are:  
 United States / Canada – Continued Suspension of Obligations in the EC – Hormones Dispute  
(WT/DS320/AB/R /  WT/DS321/AB/R);  
 European Communities – Re gime for the Importation, Sale and Distribution of Bananas – Second 
Recourse to Article 21.5 of the DSU by Ecuador (WT/DS27/AB/RW2/ECU) and Recourse to 
Article 21.5 of the DSU by the United States  (WT/DS27/AB/RW/USA);  
 United States – Continued Existence an d Application of Zeroing Methodology (WT/DS350/AB/R);  
 United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") – 
Recourse to Article 21.5 of the DSU by the European Communities  (WT/DS294/AB/RW);  
 United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the 
DSU by Japan  (WT/DS322/AB/RW);  
 Australia – Measures Affe cting the Importation of Apples from New Zealand  (WT/DS367/AB/R);  
 European Communities and Certain Member States  – Measures Affecting Trade in Large Civil 
Aircraft  (WT/DS316/AB/R);  
 United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint)  
(WT/DS353/AB/R);  
 United States – Certain Country of Origin Labelling Requirement (WT/DS384/AB/R / 
WT/DS386/AB/R); and 
 Canada – Certain Measures Affecting the Renewable Energy Generation Sector (WT/DS412/AB/R) /  
Canada – Measures Relating to the Feed-in Tariff Program  (WT/DS4126/AB/R). WT/DS400/AB/R • WT/DS401/AB/R 
 
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  has the power to authorize such requests by the participants, provided that this does not affect the 
confidentiality in the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process. We concur  with the reasons previously expressed by the 
Appellate Body, and its interpretation of Article 17. 10 of the DSU, in this regard, and consider that 
it applies equally in circumstances such as those prevailing in these appellate proceedings. 
4. In this appeal, Canada and Norway have requested that the Appellate Body allow 
observation by the public of the oral hearing by means of simultaneous closed-circuit television broadcasting, with the option for the transmission to be turned off should a third participant 
indicate that it wishes to keep its oral statemen t confidential. We agree that such modalities would 
operate to protect confidential information in the context of a hearing that is open to public observation, and would not have an adverse impact on the integrity of the adjudicative function performed by the Appellate Body. We also consider  that during public observation in previous 
appeals, the rights of those third participants that  did not wish to have their oral statements made 
subject to public observation have been fully protected. 
5. For these reasons, the Appellate Body Division in these appellate proceedings authorizes the 
public observation of the oral hearing on the terms set out below. Accordingly, pursuant to 
Rule 16(1) of the Working Procedures for Appella te Review, we adopt the following additional 
procedures for the purpose of these appellate proceedings: 
a. The oral hearing will be open to public  observation by means of simultaneous 
closed-circuit television broadcast, shown in a separate room to which duly registered 
delegates of WTO Members and members of the general public will have access.  
b. Third participants wishing to maintain the confidentiality of their oral statements and 
responses to questions will not be subject to public observation. 
c. Any request by a third participant wishing to maintain the confidentiality of its oral 
statements and responses to questions shou ld be received by the Appellate Body 
Secretariat no later than 17:00 p.m. Geneva time on Monday, 10 March. 
d. An appropriate number of seats will be reserved for delegates of WTO Members that are 
not participants or third participants in these proceedings in the separate room where 
the closed-circuit television broadcast will be shown. WTO delegates wishing to observe 
the oral hearing are requested to register in advance with the Appellate Body 
Secretariat. 
e. Notice of the oral hearing will be provided  to the general public on the WTO website. 
Members of the general public wishing to observe the oral hearing will be required to 
register in advance with the Appellate Bo dy Secretariat, in accordance with the 
instructions set out in the WTO website notice. 
6. Further details regarding the logistical arrangements for the oral hearing will be provided 
separately to the participants and third participants. 
Geneva, 5 February 2014 
 
_______________ 
   WT/DS400/AB/R • WT/DS401/AB/R 
 
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 ANNEX 5 
 
 ORGANISATION MONDIALE  ORGANIZACIÓN MUNDIAL  DU COMMERCE  DEL COMERCIO 
 
WORLD TRADE ORGANIZATION 
APPELLATE BODY 
European Communities – Measures Prohibiting the Importation and Marketing of Seal Products 
AB-2014-1 
AB-2014-2 
Procedural Ruling 
1. On 30 January 2014, we received letters from Canada, Norway, and the European Union 
requesting that we postpone the date for the oral hearing in the above appellate proceedings due to certain logistical difficulties faced by the parties in securing reasonable hotel accommodation in 
Geneva during the week of 3 March 2014. Norway  and the European Union confirmed that they 
would be available for a hearing as  of the week of 17 March. Cana da requested that the hearing be 
postponed until 19 March to allow its legal team to arrive a few days prior.  
2. On 31 January 2014, we invited the third parties to comment in writing on the request 
by 12 noon on 4 February 2014. By that deadline, we received responses from Japan, Mexico, and 
the United States. Japan and Mexico indicated that they have no objections to the participants' requests. The United States supported the participants' requests, and considered that their 
requests to change the date of the oral hearing would also satisfy Rule 16(2) of the Working 
Procedures for Appellate Review. 
3. The Division has carefully considered the part icipants' requests and the comments provided 
by the third parties. In light of the difficulties raised and the reasons given by the participants, and 
having also considered the size and complexity of the appeals, the Division has scheduled the oral hearing for Monday, Tuesday, and Wednesday, 17 to 19 March 2014, in Centre William Rappard, 
154 rue de Lausanne, Geneva.  
4. Attached is an updated Working Schedule for Appeal, which includes the revised dates for 
the oral hearing. Further details regarding the or al hearing and the date of circulation of the 
Appellate Body reports will be provided to the part icipants and the third participants in due course. 
Geneva, 5 February 2014 
 
__________