# EUR-Lex - 52015PC0045 - EN

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# 52015PC0045

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1007/2009 on trade in seal products /* COM/2015/045 final - 2015/0028 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Regulation (EC) No 1007/2009 of the European Parliament
and of the Council of 16 September 2009 on trade in seal products sets out a
general ban on placing of these products on the Union's market (“Basic
Regulation”). The Basic Regulation contains an exception from the general ban
for seal products derived from hunts traditionally conducted by Inuit and other
indigenous communities that contribute to their subsistence ("the IC
exception"). It also contains exceptions for the import of seal products
derived from seals hunted for the sole purpose of the sustainable management of
marine resources on a not-for profit basis and not for commercial reasons
("the MRM exception") as well as for imports of an occasional nature and which consist
exclusively of goods for the personal use of travellers or their families. An
Implementing Regulation, Commission Regulation (EU) No 737/2010 of 10 August
2010, lays down detailed rules for the implementation of the Basic Regulation
(“Implementing Regulation”).

Both acts (“the EU seal regime”) were challenged by Canada and Norway in the World Trade Organisation (WTO) in the dispute on EC – Measures
Prohibiting the Importation and Marketing of Seal Products (DS400 and
DS401).  On 18 June 2014, the WTO Dispute Settlement Body (DSB) adopted the
panel and Appellate Body reports. While the WTO reports concluded that the ban
on seal products can, in principle, be justified for moral concerns regarding
the welfare of seals, they took issue with the two exceptions, the IC exception
and the MRM exception. The MRM exception was found not to be justified as the
possible difference in the commercial dimension of commercial hunts and MRM
hunts (small scale, non-profit) was not sufficient to justify the distinction.
With regard to the IC exception, while in principle reflecting a legitimate
distinction, the Appellate body ruled, that some elements of its design and
application amounted to “arbitrary and unjustifiable discrimination”.

On 10 July 2014 the European Union notified the DSB that
it intends to implement the recommendations and rulings of the DSB in this
dispute in a manner that respects its WTO obligations.

On 5 September 2014, the European Union, Canada and Norway agreed that the reasonable period for implementing the DSB recommendations and
rulings would be 16 months. Accordingly, the reasonable period of time will
expire on 18 October 2015.

The purpose of this legislative proposal is to implement
the DSB recommendations and rulings with regard to the Basic Regulation. It
also creates the legal basis for bringing Regulation (EU) No 737/2010 in
compliance with the said rulings. The concerns regarding the MRM exception are
remedied by removing the MRM exception from the Basic Regulation. The concerns
relating to the design and application of the IC exception are addressed by
modifying the exception, in particular by linking its use to the respect of
animal welfare and providing for a limit to the placing of the market of seal
products if the scale of the hunt or other circumstances are such as to
indicate that the hunt is being conducted primarily for commercial purposes. In
addition, experts from the Commission are working together with experts from Canada in order to set up the necessary attestation system to enable Canadian Inuit to make
use of the Inuit exception under the EU seal regime.

In addition, it is also necessary to use
this initiative to align the reference to the regulatory procedure with
scrutiny in Regulation (EC) No 1007/2009 to Article 290 of the Treaty on the
Functioning of the European Union (TFEU). Given the
tight timeframe for compliance with the WTO rulings and to allow for a swift
adoption of the proposal by the legislator, the Commission exceptionally took
on board in this proposal an amendment of the Parliament proposed in the
context of proposal COM (2013)451 (this proposal also covered the alignment of
Regulation 1007/2009) in relation to the duration of the delegation.

2.           RESULTS OF CONSULTATIONS WITH
THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

No impact assessment was carried out as
this action does not present a new policy initiative but is required to bring
the EU’s current legislation into compliance with the WTO ruling thereby
ensuring fulfilment of Union's international obligations.  The limited
modifications introduced by this proposal did not call for a new impact
assessment as compared to the impact assessment undertaken before the adoption
of the Basic Regulation in 2009.

3.           LEGAL ELEMENTS OF THE PROPOSAL

· 
Legal basis

The legal basis for this proposal is Article 114 of the
Treaty on the Functioning of the European Union (TFEU), which was the legal
basis for the Basic Regulation which is being modified by the present proposal.
According to Article 114 TFEU the European Parliament and the Council shall,
acting in accordance with the ordinary legislative procedure and after
consulting the Economic and Social Committee, adopt the measures for the
approximation of the provisions laid down by law, regulation or administrative
action in Member States which have as their object the establishment and
functioning of the internal market. The Basic Regulation was adopted with the
objective of eliminating obstacles to the functioning of the internal market
due to differences in national measures regulating trade in seal products.

· 
Principles of Subsidiarity and Proportionality

Bringing the Basic Regulation into compliance with the
recommendations and rulings adopted by the WTO Dispute Settlement Body can only
be achieved by modifying the Basic Regulation with regard to the contested
aspects. The proposal is limited to what is necessary to achieve the WTO
compatibility of the contested measure.

· 
Choice of instruments

Proposed instrument: Regulation of the European Parliament
and the Council

Other means would not be adequate as a regulation can
only be modified by the same instrument, i.e. a regulation.

4.           BUDGETARY IMPLICATION

This proposal has no implications for the
budget of the European Union.

5.           OPTIONAL ELEMENTS

Not applicable

2015/0028 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Regulation (EC) No 1007/2009 on
trade in seal products

(Text with EEA relevance)

THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to
the Treaty on the Functioning of the European Union, and in particular Article
114 thereof,

Having regard to
the proposal from the European Commission,

After transmission
of the draft legislative act to the national Parliaments,

Having regard to
the opinion of the European Economic and Social Committee[1],

Acting in
accordance with the ordinary legislative procedure,

Whereas:

(1)       Regulation (EC) No
1007/2009 of the European Parliament and of the Council[2] was adopted with the
objective of eliminating obstacles to the functioning of the internal market
due to differences in national measures regulating trade in seal products.
Those measures were adopted in response to public moral concerns about the
animal welfare aspects of the killing of seals and the possible presence on the
market of products obtained from animals killed in a way that causes excessive pain,
distress, fear and other forms of suffering. Such concerns were supported by
scientific evidence showing that a genuinely humane killing method cannot be
consistently and effectively applied and enforced in the specific conditions in
which seal hunting takes place. In order to achieve that objective, Regulation
(EC) No 1007/2009 introduced, as a general rule, a prohibition of placing on
the market of seal products.

(2)       At the same time, seal
hunting is an integral part of the culture and identity of the Inuit and other
indigenous communities and makes a major contribution to their subsistence. For
those reasons, seal hunts traditionally conducted by Inuit and other indigenous
communities do not raise the same public moral concerns as the hunts conducted
primarily for commercial purposes. Moreover, it is broadly recognised that the
fundamental and social interests of Inuit and other indigenous communities
should not be adversely affected, in accordance with United Nations Declaration
on the rights of Indigenous Peoples and other relevant international
instruments. For those reasons, by way of exception, Regulation (EC) No
1007/2009 allows the placing on the market of seal products which result from
hunts traditionally conducted by Inuit and other indigenous communities and
which contribute to their subsistence.

(3)       A genuinely humane killing
method cannot be effectively and consistently applied in the hunts conducted by
the Inuit and other indigenous communities, just like in the other seal hunts. Nonetheless,
it is appropriate, in light of the objective pursued by Regulation (EC) No
1007/2009, to make the placing in the Union market of products resulting from
hunts by the Inuit and other indigenous communities conditional upon those
hunts being conducted in a manner which reduces pain,
distress, fear or other forms of suffering of the animals hunted to the extent
possible, while having regard to the traditional way of life and the
subsistence needs of the Inuit and other indigenous communities. The exception granted in respect of seal products resulting from
hunts conducted by Inuit and other indigenous communities should  be limited to
hunts that contribute to the subsistence need of those communities and are therefore
not conducted primarily for commercial purposes. Thus, the Commission should be
enabled to limit, if necessary, the quantity of seal products placed on the
market under  that exception in order to prevent the use of the exception by
products resulting from hunts which are conducted primarily for commercial
purposes.

(4)       Regulation (EC) No
1007/2009 also allows, by way of exception, the placing on the market of seal
products where the hunt is conducted with the sole purpose of sustainable
management of marine resources. While recognizing the importance of hunts for
the purpose of sustainable management of marine resources, in practice,
however, these hunts may be difficult to distinguish from the large hunts
conducted primarily for commercial purposes. This may lead to unjustified
discrimination between the seal products concerned. Therefore, this exception should
no longer be provided for. This is without prejudice to the right of
Member States to continue regulating hunts conducted for the purposes of
management of marine resources.

(5)       In order to provide for
detailed rules as regards placing on the market of seal
products, the power to adopt acts in accordance with Article 290 of the Treaty should be
delegated to the Commission. It is of particular importance that the Commission carry out
appropriate consultations, including at expert level. The
Commission, when preparing and drawing up delegated acts, should ensure a
simultaneous, timely and appropriate transmission of relevant documents to the
European Parliament and to the Council.

(6)       Regulation (EC) No
1007/2009 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1007/2009 is amended as
follows:

(1) 
Article 3 is replaced by the following:

"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 conducted by Inuit and other indigenous communities,
provided that the following conditions are all satisfied:

(a) 
the hunt has been traditionally conducted by the
community;

(b) 
the hunt contributes to the subsistence of the
community and is not conducted primarily for commercial reasons;

(c) 
the hunt is conducted in a manner which reduces
pain, distress, fear or other forms of suffering of the animals hunted to the extent
possible taking into consideration the traditional way of life and the
subsistence needs of the community.

The above
conditions shall apply at the time or point of import for imported products.

2.       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.

3.       The application of paragraphs 1 and 2 shall
not undermine the achievement of the objective of this Regulation.

4.       The Commission shall be empowered to
adopt delegated acts in accordance with Article 4a in order to lay down
detailed rules for the placing on the market of seal products in accordance
with paragraphs 1 and 2.

5.       If the number of seals hunted, the
quantity of seal products being placed on the market pursuant to paragraph 1 or
other circumstances are such as to indicate that a hunt is conducted primarily
for commercial purposes, the Commission shall be empowered to adopt delegated
acts in accordance with Article 4 in order to limit the quantity of products resulting
from that hunt that may be placed on the market.

6.       The Commission shall issue technical
guidance notes setting out an indicative list of the codes of the Combined
Nomenclature which may cover seal products subject to this Article."

(2) 
The following Article 4a is inserted:

"Article 4a

Exercise of the delegation

1.           The power to adopt
delegated acts is conferred on the Commission subject to the conditions laid
down in this Article.

2.           The power to adopt
delegated acts referred to in Article 3 shall be conferred on the Commission for a period of five years
from ... [insert date - the date of entry into force of this Regulation].
The Commission shall draw up a report in respect of the delegation of power not
later than nine months before the end of the five-year period. The delegation
of power shall be tacitly extended for periods of an identical duration, unless
the European Parliament or the Council opposes such extension not later than
three months before the end of each period.

3.           The delegation of power referred
to in Article 3 may be revoked at any time by the European Parliament or by the
Council. A decision to revoke shall put an end to the delegation of the power
specified in that decision. It shall take effect the day following the
publication of the decision in the Official Journal of the European Union
or at a later date specified therein. It shall not affect the validity of any
delegated acts already in force.

4.           As soon as it adopts a
delegated act, the Commission shall notify it simultaneously to the European
Parliament and to the Council.

5.           A delegated act adopted
pursuant to Article 3 shall enter into force only if no objection has been
expressed either by the European Parliament or the Council within a period of two
months of notification of that act to the European Parliament and the Council
or if, before the expiry of that period, the European Parliament and the
Council have both informed the Commission that they will not object. That
period shall be extended by two months at the initiative of the European
Parliament or of the Council."

(3) 
Article 5 is deleted.

Article 2

This Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

This Regulation shall be binding
in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament                        For
the Council

The President                                                 The
President

[1]               OJ C [...], [...], p. [...].

[2]               Regulation (EC) No 1007/2009 of the European Parliament
and of the Council of 16 September 2009 on trade in seal products (OJ L 286, 31.10.2009, p 36).