WRITTEN QUESTION E-3416/97 by Hiltrud Breyer (V) to the Commission (28 October 1997)

Subject: World trade and protection of animals

According to current interpretation, a restriction on trade is permitted only in so far as it is absolutely essential to satisfy specific protection purposes (necessity, least trade restrictive).

1. How are these guidelines to be implemented? Who decides the extent to which measures are necessary?

2. In particular to what extent can a distinction be made between practicality, necessity and discrimination? According to EU Regulation 3254/91 ((OJ L 307, 8.11.1991, p. 1. )), for example, all pelts from a specific country are subject to a ban on imports and not just those pelts which are actually caught in leghold traps. While the grounds in terms of practicality may be immediately clear, does this measure constitute the minimum trade restriction necessary?

Answer given by Sir Leon Brittan on behalf of the Commission (13 January 1998)

States that are Members of the World Trade Organisation (WTO) are allowed, under specific conditions, to take trade measures in order to pursue certain policy objectives.

Under Article XX(b) and (g) of the General agreement on tariffs and trade (GATT), trade measures that would otherwise be inconsistent with GATT basic principles, may be permitted if they are 'necessary' for the protection of ' ... animal ... life or health' or 'relate to the conservation of exhaustible nature resources', provided 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 on international trade'. The meaning and scope for the use of the exceptions contained in Article XX is being progressively defined through GATT/WTO dispute settlement practice.

It is the task of the Community and its Member States to ensure that animal protection legislation is consistent with the various trade agreements to which they are party, including, if need be, with the requirements laid down in GATT Article XX. As regards the specific concepts and criteria mentioned by the Honourable Member, it is worth noting that:

- the notion of 'practicality' is not found, as such, either in GATT Article XX or in relevant GATT/WTO case law;

- some trade-restrictive measures aimed at protecting animals can be justified in specific cases by reference to GATT Article XX(g). Unlike Article XX(b), XX(g) does not include the notion of 'necessity', though GATT jurisprudence suggests that any such measures must be primarily aimed at the conservation of an exhaustible natural resource to be considered as relating to conservation under this sub-paragraph;

- as noted above, the headnote to GATT Article XX does not prohibit all forms of discrimination, but only measures applied 'in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.'

Concerning in particular Regulation (EEC) No 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animals species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards, it would be also worth noticing that, at the end of 1995, the Commission adopted a proposal for amendment ((OJ C 58, 28.2.1996. )) of that Regulation, aimed at introducing in it modifications to facilitate its implementation and to make it more proportionate to the objectives pursued. This proposal has not yet been adopted by the Council.